1. Establishment of judicial review
    1. Federal Govt'al acts
    2. State govt'al acts
  2. Congressional Control
  3. Limitations
    1. Political Quest. Doc.
    2. Advisory Opinion
    3. Standing
    4. Mootness
    5. Ripeness

Est. of Judicial Review

  1. Fed. Govt'al Acts (Marbury v. Madison, Cooper v. Aaron)
    1. Sup Ct's original jxn is limited & exhaustive 2 Art. 3
    2. Can only expand original jxn by amendment
    3. Sup Ct is the final arbiter of Const'al meaning
    4. Fed. jud. is supreme so Sup Ct's dec. binds everybody, not just parties
    5. Four possible holdings 4 Marbury
      1. Cong. Act expanding Sup Ct's original jxn is unConst'al
      2. Statute in Cong. Act in violation of Const. is void & Sup Ct can say so
      3. Any govt act violating Const is invalid
      4. Any act of any govt violating Const. is invalid
  2. State Govt'al Acts (Martin v. Hunter's Lessee)
    1. Fed. trumps state statute if there's conflict by Sup. Clause (Art 6)
    2. No such thing as state interposition after civil war
    3. Need uniformity 4 Const'al law
    4. US Sup Ct has appellate jxn over state sup. ct if Cong. didn't est. lwr fed. ct
    5. Adequate & Indep. State Grounds Exception
      1. If adeq. & indep. state grounds in state ct dec. where no fed quest. is present, then not subj. 2 fed. rev.
      2. Michigan v. Long's 2 Prong Test
        1. Explicitly state indep. state grounds
        2. Not rely on fed. cases

Congressional Control

  1. Exception Clause: Art 3, 2
    1. Cong. has pwr 2 narrow Sup Ct's appellate jxn
  2. Limitations
    1. Structure of sys. doesn't permit Cong. 2 abolish appellate jxn / cut into Sup Ct's fn's
    2. Internal limitation of Const. & B/R 2 apply consistently
    3. External limitation of political inertia
  3. Cases
    1. Ex Parte McCardle where Reconstruction Act was in quest
    2. But Ex Parte Yerger said McCardle wasn't Exception Clause case b/c there's no jxn'al auth. contested


  1. Political Quest. Doc.
    1. Only applicable btwn fed. branches, not btwn fed. & state dispute
    2. Two Strands
      1. Const. preclusion / mandate in Art. 3: Ct can't dec. polit. quest's involving S/P / plenary pwrs (originated from Marbury dicta w/discretionary v. nondiscretionary distinctions)
      2. Prudential strand: Fn'al & practical consid. of not hearing cases
    3. Baker v. Carr 6 Factors
      1. Const. commitment 2 another branch
      2. Lack of jud'ly discernible & manageable stand's
      3. Nonjud. discretion if dec.
      4. Lack of respect 4 other branches if dec.
      5. Unusual need 2 adhere 2 political dec.
      6. Potential embarrassment from multifarious pronouncements by various depts on 1 quest.
    4. Case Law
      1. Powell v. McCormack: justiciable on House of Rep. qualification prob's
      2. Goldwater v. Carter: Nonjusticiable on Carter's recog. of China & Cong. silence (Powell's ripeness issue b/c no Cong. maj.)
    5. Cong. can only tell Sup Ct 2 hear prudential cases, not those w/Const'al limits
    6. Factors
      1. Jud. activism v. jud. restraint
      2. Institutional capacity of elected v. jud.
    7. Polit. Quest. is Bad
      1. Not 2 dec. is 2 dec.
      2. It's discretionary
      3. Should not have it 2 give stability in sys. by letting the govt'al actors know the rules
  2. Advisory Opinion
    1. No Advisory Opinion in Fed Sys
    2. Need Case in Controv. Reqt Met
    3. Decl. Jgmt
      1. Remedy @ law which meets case in controv.
      2. Prefer this
  3. Standing
    1. Two Reqt's
      1. Concrete pers. injury in fact, dif. from person on the st.
      2. Causation that if redress 4 desired axn exists / if give recov., then injury would B remedied
    2. No Taxpayer Standing (Frothingham v. Mellon)
      1. Flast v. Cohen Exception
        1. When taxpayer shows statute exceeds specif. Const. limit imposed by Tax & Spending Pwr
        2. Statute must rely on tax & spending pwr (Valley Forge Christian College v. Amer. United didn't meet this reqt)
    3. No Citizen Standing
      1. Gen. grievance so if all aggrieved, nobody has standing (Schlesinger v. Reservists Comm., US v. Richardson)
      2. Congressman may have standing b/c vote can B nullified & disenfranchised (Kennedy v. Sampson)
      3. No reqt of actual meas'able econ. injury (US v. Scrap)
    4. No 3rd Party Standing
      1. Chilling Effect Exception
        1. If no one would ever challenge violation b/c govt enacts statute that has chilling effect of Const'ly protected speech, then allow exception
        2. Laird v. Tatum paradox
    5. Cong'al Control: Zone of Int.
      1. Statute imposes benefit / penalties so create zone of int. people w/standing
    6. Causation Cases
      1. LA v. Lyons
      2. Warth v. Seldin
  4. Mootness
    1. If overly ripe, then no longer case in controversy
    2. Exception when likely 2 occur but evade review like abortion
  5. Ripeness
    1. Need Imminence / Threat 2 Injury
      1. United Pub. Workers v. Mitchell
      2. Adler v. Board of Ed.
      3. LA v. Lyons
    2. Balancing Approach (Abbott Lab's v. Gardner)
      1. How much lost v. how much gained by waiting
      2. Wait 4 concrete fact dev. v. hardship / not matter if quest. of law
      3. Take cost & gravity of injury into acct
    3. Dellums v. Bush
      1. Need Cong. maj. so Chadha implication

Government Pwrs

Government Pwrs

  1. Federal Pwrs Concept
  2. Treaty Pwr
  3. Commerce Clause (CC)
  4. Delegation v. Preemption in CC
  5. Dormant Commerce Clause (DCC)
  6. Separation of Pwrs
    1. Concurrent Pwrs in For. Affairs
    2. Plenary Pres. Pwrs
    3. Executive Agmt
    4. National Sec. & Limitation of Exec. Pwrs
    5. Legislative Veto
    6. War Pwr
    7. Pwr of Purse
    8. Appointment
    9. Removal Pwr
    10. Immunities
    11. Impeachment
    12. Term Limits

Federal Pwrs Concept

  1. Judicial Rev
  2. Federalism
    1. Need 4 1 econ unit, div'ing state factions, acct'ability
    2. But all those rsns missing modernly
  3. S/P
  4. Checks & Balance: Exception of S/P b/c Const. assigns 2 1 branch pwr which should B on other branch
  5. Implied Pwrs in Nec. & Proper Clause (McCulloh v. MD)
    1. Nec. means conv., nec. & approp.
    2. Mean must rel. 2 end so Cong. must have some foregoing pwr 2 invoke it


  1. Const. > Treaty / Fed Statute > State Statute
    1. Treaty must B valid & need 2/3 Sen. approval
    2. No treaty ever struck down as invalid
    3. Missouri v. Holland & Reid v. Covert
  2. Last in X Doc.
    1. If conflicting statutes, then last in X statute is the law
    2. Treaty interchangeable w/statutes w/in domestic things
  3. Self Exec'ing Treaty
    1. Law of the Land W/O Further Leg.
    2. Factors
      1. Leg. history
      2. Pres. ratification
      3. Domestic intent
    3. If not self exec'ing, then need Cong.'al implementation
    4. Sei Fujii & Whitney Cases

Commerce Clause (CC): Art 1, 8

  1. Federal Govt as the Actor
  2. Dif. Stand's
    1. Lopez
    2. Affectation
    3. Dir v. Indir, Local v. National
    4. Inherently Evil
    5. Pretextual
    6. Rational Basis
  3. Commerce Def. & Trend
    1. Used 2 not incl. mfgr / production but now incl'ed
    2. Moved from liberal, conservative, liberal, & now conservative stand's
  4. Stand's
    1. US v. Lopez 3 Prong Test
      1. Channels: use of channels of IC
      2. Instrumentalities: people, things, etc. in IC
      3. Subst'l effect & rel. 2 IC
    2. Gibbons v. Ogden: Affectation Stand. (liberal)
      1. ISC not subj. 2 Cong. reg. unless affects other states, then Cong. can reg.
    3. US v. EC Knight: Dir. v. Indir & National v. Local Stand.(conservative)
      1. Mfgr. not a part of commerce
      2. 10th amend. gives immunity from fed. reg.
      3. Schechter Poultry Case, Carter v. Coal
    4. The Shreveport Rate Case: Exception 2 Gibbons Affectation Stand. (liberal)
      1. ISC affects other states
    5. Lottery Case: Inherently Evil Stand.
      1. Evil before / after moving 2 criminalize movement
      2. Production isn't evil (Hammer v. Daggenhart)
    6. NLRB v. Jones: Subst'l Effect Stand. (liberal)
      1. Threw out prod. & mfgr. exclusion
    7. Wickard v. Filburn: Aggregation Stand.
      1. All combine 2 subst'ly effect
    8. Ollie's BBQ, Civil Rts, Heart of Atlanta Motel v. US: Pretextual Stand.
      1. Jud. activism b/c couldn't use E/P / 14th Amend. 4 aggregation effect

Delegation & Preemption in CC

  1. Adm. Agencies
    1. Cong'al creatures so could B abolished by Cong. except 4 part of Pres. staff & White House
    2. Rules R = as fed. statute but derive force from leg. effect of Cong. from CC
    3. Can challenge by either agency acted ultra vires when Cong. didn't auth. / Cong. acted ultra vires by giving pwr it didn't have
  2. Delegation
    1. Cong. can't delegate law making / create agencies 2 make law
    2. Purpose 2 make Cong. acct'able
  3. No Stand'less Delegation, not no delegation 4 New Deal
    1. Sup Ct wanted 2 limit discretion but after some X, didn't care
    2. Schechter Poultry Case, Carter Coal Case
  4. Preemption
    1. Cong'al occupation of the field precl's state axn
  5. C/L
    1. US v. NY: should've preempted / condition fund
    2. Can't bifurcate cost & benefit 2 interbranch govt's b/c distorts acct'ability


  1. Negative Implication of CC / Imply No Pwr 2 States by Giving 2 Cong.
  2. State's axn dep's on Cong. & Const. postures
    1. Concurrent Jxn v. Excl. Jxn
      1. If Cong. speaks & delegates 2 state, o.k. (Providential & In re Rahrer Cases)
      2. Gibbons v. Ogden & Cooley v. Board of Wardens of Port of Phil. hinted @ excl. jxn
  3. Used rational basis w/discrim. in SC v. Barnwell b/c no political malfn
  4. Analysis
    1. Need 2 B state Actor
    2. Need 2 B IC
    3. Cong. Posture
      1. If approve, no further analysis
      2. If disapprove, preemption by Sup Clause & UnConst'al
      3. If silent, further analysis
    4. If silent, discrim. of intent / purpose (Phil. v. NJ)
      1. Effect of state statute (Minn. v. Clover Leaf Creamery Co. not 2 much burden; Hood & Sons v. Du Mond)
      2. Purpose (Minn. v. Clover Leaf Creamery Co. not discrim.; Kassel Case)
      3. Burden on benefic. / carries 2 externalities (Phil. v. NJ)
      4. Facially Discrim. (Phil. v. NJ)
    5. If discrim.
      1. Strict scrutiny of legit. state int. (Sporphase v. Nebraska)
      2. Least restrictive Means (Sporphase v. Nebraska)
      3. Const'al if passes but unConst'al if fail subj. 2 mkt participation exception (Maine v. Taylor passed)
    6. If not discrim.
      1. Balancing test of Pike v. Bruce Church
        1. Effect on IC v. local purpose
        2. If reg. even-handedly, no discrim, effect on IC incidental, then o.k.
        3. If burden on IC higher than local benefit, not o.k.
        4. Quest. of degree so burden o.k. dep'ing on nature of local int. & means of lesser impact on IC
      2. Least restrictive mean test
      3. Const. if passes but unConst'al if fails subj. 2 mkt participation exception
  5. Mkt Participation Exception
    1. State act as mkt participant so not subj. 2 DCC but not = as other Co's
    2. State still subj. 2 14th amend. restrictions
    3. SD Timber Dev. v. Wunnicke
  6. Separation of Pwrs
    1. Dif. Approaches & Tests
      1. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case)
        1. Line up precedents by Cong. approval (category 1), Cong. silence (category 2), & Cong. disapproval (category 3)
        2. If in category 3, still look @ Const. 4 scope of Pres. plenary pwr b/c only means that Pres. pwr is @ lowest
      2. Morrison v. Olson
        1. Cong. not involved 2 increase own pwr @ exepense of exec.
        2. No judicial usurpation of properly exec. fn's
        3. Not impermissibly undermine other branch's pwr / disrupt branches' balance
      3. Scalia's Test
        1. Case by case look @ mini doc's / specif. provisions of Const. 2 resolve conflict by text (Const'al text & famers' intent)
      4. Gen'ly use text & custom 4 sources
    2. Concurrent Pwrs in For. Affairs
      1. Share treaty & appt. ambassador btwn Pres. & Leg.
      2. Not Share
        1. Pres: Commander in Chief & receive for. ambassador
        2. Cong.: CC, declare war, def. & punish piracies, military, common welath, coins of for., immigration & naturalization, & spend
      3. Sources of Pwrs
        1. Curtiss-Wright: fn'sm & external sov.
    3. Plenary Pres. Pwrs
      1. Pardon: Art 2, 2
        1. US v. Klein & Garland Cases
      2. Reception & Recog.: Art 2, 3
        1. Source from custom & text
      3. Negotiations w/ For. Pwrs: Art 2, 2
        1. Text w/custom
        2. Prom. not binding on subseq. Pres's probably
      4. CIC: Art 2, 2
        1. Operational context that Pres. make pract'al dec. but Cong. make policies
        2. Peace X deployment seems like sole Pres. pwr
      5. Case Law
        1. US v. Curtiss-Wright: Category 1 Case
          1. Not get 2 plenary pwr issues b/c only disc. plenary pwr if act in Cong. opposition
          2. Upheld Pres. embargo & crim. penalty
        2. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case): Category 3 Case
          1. Exec. order held unConst'al
          2. Cong. rejected amend. that would've auth'ed seizure
          3. Jackson's 3 pts analysis
    4. Executive Agmt
      1. Pres. Axn of Agmt w/For. Country
        1. Sole: Pres. acts persuant 2 Const. w/o Cong.
        2. Cong.: Agmt by approval of both maj. houses
      2. Treaty 4 exceptionally national imp. subj. matter
      3. Sources: custom (postal agmt) & text maybe
      4. Case Law
        1. US v. Belmont: Category 2 / 3
          1. Cong. silent but state opposed
          2. Upheld exec. agmt
        2. Dames & Moore v. Regan: Category 2 / 1
          1. Cong. not do anything so imply acquiescence 2 Pres's settlement claims
          2. National emergency case so practical dec.
    5. National Sec. & Limitation of Exec. Pwrs
      1. Pres. can't always put national security 4 exec. pwr
      2. Case Law
        1. Snepp v. US: Upheld CIA K & national security won
        2. NY Times Co. v. US (Pentagon Papers Case): Allowed publishing of Vietnam statistics so 1st amend. won
        3. Korematsu Case: Strict scrutiny passed b/c of compelling pub. int. & upheld incaraceration of Japanese-Amer. so national sec. arg. won
    6. Legislative Veto
      1. Resolutions (rsln)
        1. Simple rsln: Passed by only 1 house
        2. Concurr. rsln: Passed by both houses but no Pres.
        3. Joint rsln: Passed by both houses & sent 2 Pres. w/2/3 4 overriding Pres's veto
      2. Leg. Veto's pwr was derived from statute that incorp'ed not by itlsef when tagged in specif. statute, bill, etc.
      3. INS v. Chadha Test
        1. If purpose / effect of changing the legal duty / rel. outside of leg. branch where otherwise not B subj'ed 2, then go through Pres. 4 chance 2 veto
        2. Bicameralism so must pass both houses
        3. Sources 4 Test
          1. Text: Presentment Clause of Art 1, 7 but unclear lang.
          2. Custom & intent inapplicable b/c need 2 have started in the earliest republic
          3. Fn'al consid. rejected
      4. Proced. / How prob.
    7. War Pwr
      1. Pres as CIC but Cong. has pwr 2 declare war
      2. C/L & Custom as Source
        1. Prize Case: Category 2 / 1: when Pres. repel sudden attack, Cong. approves
        2. Moscow & Grenada Cases
        3. Vietnam War
        4. Jones v. Bush: can't go 2 war w/o Cong. approval in dicta
        5. Custom says that CIC pwr before Cong. declares war so 60 day per. in War Pwr Rsln impinges on CIC pwr
      3. Magnitude Test
        1. Likely duration
        2. Extent of casualty
        3. Extent of emergency that Cong. had no opp. 2 act
      4. Need 2 line up precedents by Jackson's categories & magnitude
      5. War Pwr Rsln
        1. 2)c: Cong. opinion
        2. 4)a: Intro. armed forces into hostilities then trigger X per. & must report
        3. 5)b: 60 days but @ end, w/draw unless Cong. declared war, enacted statute that lengthens, / auth's the use of armed force
        4. 5)c: Leg. veto of concurr. rsln 2 w/draw
        5. 8)a)1 & 2: Pres. can't infer auth. from statute / treaty
        6. 8)d)1: Not alter Const'al auth. of Cong. / Pres.
        7. Hostility loophole that if no hostility, X limit not triggered & Cong. never def'ed hostility
    8. Pwr of Purse
      1. Plenary Cong'al Pwr
      2. Appropriations Before 1973
        1. Auth'ing leg. & funds approp'ed
        2. Pres. auth's & set up prog's after
      3. Impoundment: When Pres. tries 2 avoid spending $ that Cong. wants 2 spend
        1. Train v. NY: Category 3: Cong. opposed so dir'ed Pres.2 spend $
        2. Deferral: When Pres. tries 2 defer spending then Cong. can adopt simple rsln prohibiting but that's leg. veto
        3. Rescission: When Pres. tries 2 terminate spending / w/hold funds beyond fiscal yr, then only allowed by concurrence of both houses in Cong. w/in 45 days 2 rescind
    9. Appointment
      1. Plenary Pres. Pwr 4 High Officials
      2. C/L
        1. Morrison v. Olson: No indep. counsel by Cong. w/o Pres.
        2. Mistretta v. US: Judges allowed 2 B in sentencing guidline committee by Cong.
        3. Buckley v. Valeo: Can't have exec. fn's & not B appt'ed by Pres.
    10. Removal Pwr
      1. Plenary Pres. Pwr of Exec. Personnel w/o Cong. Oversight
      2. Inferred from Appt Pwr
        1. Fn'al Source
      3. Case Law
        1. Myers v. US: Removal pwr in appt pwr 4 purely exec. fn
        2. Humphrey's Exec'or v. US: Category 3: Quasi leg & quasi jud. so can't remove in defiance of Cong. opposition
        3. Wiener v. US: Category 2: Can't remove & can only remove 4 non-exec. fn's if Cong. conferred removal pwr
        4. Bowsher v. Synar: Pres's job of balancing budget so can't dismiss GAO by Cong. concurr. / can't do exec. fn.
    11. Immunities
      1. Exec. Privilege
        1. Crim Pro Stand.: US v. Nixon
          1. Pres's gen'ed int. of confidentiality not prevail against particularized need of supoena in crim. trial
        2. Leg. Subpoena Stand.: US v. Sirica
          1. High stand. that only doc's demonstrably critical 2 proper leg. fn. of Cong. can override Pres's privilege
      2. Leg. Immunity
        1. Priv'ed Sen. Record by Marbury Precedent
        2. Can't testify 4 empl. but gen'ly can get permission from Sen.
        3. Speech & Debate Clause Immunity
          1. Act intrinsic 2 legislative process, not rel. 2 leg. process priv'ed (Hutchinson v. Proxmire's non-immunity 4 press conference)
          2. Staff members priv'ed if act as alter ego & activity rises 2 the level of leg. act
          3. Publishing priv'ed but not republishing (Doe v. McMillan)
    12. Impeachment
      1. Sole Pwr 2 House of Rep & Sen.
        1. Rep. starts, impeaches, & det. if indict
        2. Sen. act as trier of fact
        3. No jud.
      2. Impeachable Crime: Art 1, 3, cl6
        1. Officer committed high crime/ misdemeanor (Pres. commit purgery / obstruct just.)
      3. C/L
        1. Nixon v. US (judge)
          1. No jud. rev. b/c polit. quest.
    13. Term Limits
      1. UnConst'al 2 have term limits by states
      2. C/L: US Term Limits Inc. v. Thornton
        1. Powell Case wasn't 4 interbranch but did say can't impose own qualification
        2. State didn't have rt. before Const.
        3. Fn'al Source: democracy will B undercut

Limitation on Govt'al Pwr

Limitation on Govt'al Pwr

  1. Recurring Issues
  2. Specific Textual Limitation
    1. K Clause
    2. Taking Clause
  3. Implied Limitation
    1. Procedural Due Process (D/P)
    2. Subst. D/P
    3. Rt 2 Privacy
    4. Traditional & Fundal Rt in Family
    5. Abortion
    6. Right 2 Die

Recurring Issues

  1. Three Recurring Issues
    1. State Axn
    2. Nat rts v. positivism
    3. Incorporation
  2. State Axn
    1. Need state axn / govt'al official by Civil Rts Cases b/c Const. limit only on govt except 4 13th amend.
    2. Tests
      1. Symbiotic Test (Burton v. Wilmington Parking Auth.): When state subK & each derive cert. benefit from rel. then symbiotic so state liab.
      2. Govt Fn Test: Act involved gen'ly perf'ed by the govt
      3. Joint Enterprise Test: Similar 2 symbiotic, when govt & priv. in jt. enterprise, priv. actor subj. 2 Const. limit
  3. Nat Rts v. Positivism (Calder v. Bull)
    1. Nat. Rts
      1. Law of the creator, god, etc. OR
      2. Can deduce cert. gen. princ's & those princ's R nat's moral mandate OR
      3. Moral concl's deduced from pure rsn
      4. Kant & Rawls 4 3rd approach w/1 concl. idea
    2. Positivism
      1. Rules by people & only id'ed by empirical work 2 discov. what human believe rule 2 B so no nat. law
  4. Incorporation (not rise anymore)
    1. Incorp'in B/R through 14th amend.
      1. Privileges & Immunities Cl: No state shall...abridge priv's / immunities
      2. Nor deprive any person of life, lib., / prop.
      3. W/o due process
      4. Mainly use D/P now although E/P used sometimes
    2. Possibilities of Incorp's
      1. Some but not all B/R
      2. All B/R
      3. All B/R + additional unenumerated rts
    3. Stand's 4 D/P & Incorp.
      1. Duncan v. LA (modern): Fund'al 2 Amer. scheme of justice so broader than ordered lib. but narrower than full incorp.
      2. Twining v. NJ: Immutable princ. of justice which is inalienable from states
      3. Palko v. Conn.: Ordered lib. by looking @ other countries w/ordered liberty
      4. Adamson v. CA: Black's dissent 4 full incorp. but not incl. 9th amend.
      5. Frankfurter: 4 justice of Eng. speaking people & positivist approach
    4. Barron v. Baltimore (B/R not 2 states) & Slaughterhouse Cases (No privileges & immunities)

Specific Textual Limitation

  1. K Clause: Art 1, 10, cl2: No state shall pass any law impairing oblgn of K's
    1. Priv. K's
      1. Home Bldg & Loan Ass'n v. Blaisdell 5 Prong (statute upheld)
        1. Emergency
        2. Basic soc. int.
        3. Approp. tailored
        4. Rsbl
        5. Duration limited
      2. Allied Structural Steel v. Spannaus 3 Prong (statute struck down)
        1. Gen'ed soc. prob.
        2. Temp. / perm.
        3. Area subj. 2 reg.
      3. Both balance impairment v. justification of impairment but unpredictable
    2. Pub. K's
      1. US Trust Co. v. NJ 2 Prong (statute struck down)
        1. K valid when adopted?
          1. Reserved pwrs can't B K'ed away (police & eminent domain)
        2. Impairment rsbl & nec?
    3. Exxon v. Eagerton's Reformulation
      1. Impairment incidental 2 promotion of broader soc. int. / leg. didn't intend, then not apply K clause
  2. Taking Clause: 5th Amend.: Nor shall priv. prop. B taken 4 pub. use w/o just compensation
    1. Taking
      1. Keystone: Extent 2 which a reg. advances a legit. state int. v. extent 2 which it denies prop. owner an econ'ly viable use of prop.
      2. Focus on prop. rts
      3. Reg. can B taking
      4. Poss'n by govt temp'ly can B taking
    2. Just Compensation not def'ed
    3. Princ's 2 Apply
      1. Benefic. Princ.: Those benefitting should pay
      2. Internalization Princ.: Internalize externality 2 allocate res's eff'ly & used 2 take w/o just compensation
      3. Notice Princ.: W/notice, no real prop. int. in reg'ed area so can take w/o just compensation
      4. Notice gen'ly not enough 4 taking but when internlization & benefic. dictate cert. outcome, ct. would probably use those
    4. C/L
      1. Hadachek v. Sebastian (notice)
      2. Nollan v. CA Coastal Comn. (benefic.)
      3. Penn Central Tranportation Co v. NY
      4. Penn Coal v. Mahon (benefic.)
      5. Keystone Bituminous Coal Ass'n v. De Benedictis
    5. Theories on Taking
      1. Michelman: Perm. phys. occupation of 1 portion of prop. taken wholly & compl'ly so that investment backed expectation undermined & totally elim's prop's econ. value
      2. Sax: Denies all econ'ly viable use of land & govt not ask landowner 2 solve prob. he created
      3. Peterson: If govt intentionally forces except if wrongful so look @ purpose
    6. Prop. Def. from C/L
      1. Econ'ly valued freedom (Nollan)
      2. Pracel as a whole (Keystone & Penn Central)
      3. Freedom of K (Lochner v. NY)

Implied Limitation

  1. Procedural Due Process (D/P): not rise anymore
    1. Two Prongs (Mathews v. Eldrige)
      1. Was prop / lib. int. violated (K, statute, / ordinance)
        1. Board of Regents v. Roth Entitlement Test: K, statute, / ordinance entitles 2 cert. benefits
        2. Hewitt Case: Nat. rt as source of lib. int.
        3. Perry v. Sinderman: Custom 4 prop. but also 1st amend. issue
        4. Bishop v. Wood: No stigma of reputation so no lib. int. violated b/c not publicized
        5. Paul v. Davis: Reputation itself isn't lib. int. & should B tied 2 tangible things like job, not just defamation
        6. Vitek v. Jones: K'al statutory entitlement 4 prison not mental hospital
      2. If so, what process due (hearing / notice)
        1. Balance of priv. int, risk of deprivation, alt's, burden on state, etc.
        2. Process can B after
  2. Subst. D/P
    1. Dif. Stand's
      1. Strict Scrutiny
        1. Lochner v. NY 4 freedom of K as prop. int. & lib. int. but should've used rational basis
        2. Near v. Minn.: 1st amend., polit. process, & integrity of channels of rep.
      2. Ftnt 4 Test: US v. Carolene Prod's Co (neutral princ. & obj. stand.)
        1. Rep. reinforcement: process malfn so need strict scrutiny 4 14th amend.
        2. Discrete & insular minority
        3. Focus on group & purpose of rt, not which rt
      3. Rational Basis After Lochner 4 Econ. Rts
        1. Rsbl rel. 2 proper purpose, not discrim, / arb. then statute satisfies D/P (Nebbia v. NY)
        2. Williamson v. Lee Optical Co.
        3. Ferguson v. Skrupa
        4. Not 4 jud. 2 det. if statute is wise
    2. Subst. D/P dead unless 4 Const'al rt.
  3. Fund'al Rt 2 Privacy
    1. Privacy Cases & Search 4 Fund'al Rt
      1. Meyer v. Neb.
      2. Pierce v. Soc. of Sisters
      3. Skinner v. OK
      4. Griswold v. Conn.
        1. Douglas: Penumbras & emanations 4 fund'al rt 2 zone pf pers. autonomy
        2. Goldberg: 9th amend.
        3. Harlan: Ordered lib. & 14th amend.
    2. Approaches 4 Sources
      1. Category of Rts: Rts of access @ top, econ. rts is derivative & 2nd order
      2. Ftnt 4: Princ'ed approach but cases wouldn't come out the same
      3. Nat. law: Subj.
      4. Judge's own values: Subj.
      5. Predicting Prog.: Subj.
      6. Tradition: Eng. speaking / implicit in ordered lib. but circular b/c maj. dec's trad.
      7. Rsn: Common sense but not explain maj. premises
      8. Objectivist, nat. law, intuitionism / deontological: oblgn as cond. of being, obj. truth w/ Kant saying we all accept categorical stuff & Rawls w/designing soc. from veil of ignorance
      9. Utlitarianism: Max. positive utils b/c no nat. law
      10. Biological / Psychological: Prioritize hierarchy of needs so food, clothing, & shelter more imp.
      11. Post structuralist: Lang. prob. not philosophy
      12. E/P: Need disparate result AND leg. invidious intent
    3. Stand. of Review: Strict scrutiny 4 all burdens on fund'al rt. restrctions & need compelling state int. 2 overcome
  4. Traditional & Fund'al Rt in Family
    1. Source from Tradition
      1. Rt 2 Family: Moore v. E. Cleveland (Subst D/P)
      2. Rt 2 Marry: Zablocki v. Redhail (E/P)
      3. No Rt 2 Sodomy Btwn Homosexuals: Bower v. Hardwick (utlitarian)
  5. Abortion & Woman's Fund'al Rt. 2 Choose
    1. Source
      1. Tradition & Customary rt. (Douglas)
    2. Roe v. Wade Trimester Rule
      1. Woman 1st tri, compelling state int. in 3rd tri, & strict scrutiny in middle
      2. Compromise of Woman's rt. & state's int. in unborn
      3. Jud. not supp'ed 2 write statutes
    3. C/L
      1. Danforth: No spousal consent
      2. Belloti v. Baird: No parental consent w/o jud. bypass
      3. City of Akron v. Akron Cetner of Reprod. Health: No prohibition of 2nd tri. abortions in outpatient clinics
      4. Ashcroft: 2nd dr's reqt o.k.
      5. PPSP v. Casey: Viability testing o.k.
    4. Undue Burden Stand. Overturns Roe
      1. If reg. unduly burdens women is the stand.
  6. Right 2 Die
    1. Fund'al Rt 2 Die
    2. Stand. of Clear & Convincing Evid. (Cruzan v. Director, Missouri Dept of Health)
    3. State has int. in individual's rt. 2 die (Compassion in Dying v. Washington)
      1. Gen. int. in preserving life
      2. Specif. int. in preventing suicide
      3. Avoid involving 3rd parties, & precl. use of arb., unfair, / undue influence
      4. Protecting family members & loved ones
      5. Protecting med profession's integrity
      6. Avoiding adverse conseq's if statute is unConst'al
    4. Factors
      1. Ommission v. commission (w/drawing nutrition / aff'ly choosing 2 die)
      2. Intent v. unintended (whether conscious dec. 2 die / others making dec's 4 U)
      3. Final v. nonfinal (terminal illness / not)

Legal Interp. Tools

Doc. of Sources

Formalism v. Legal Realism

  1. Formalism: Law predictable by text & intent
    1. Textualism
      1. Plain meaning rule that if Const. text dispositive, then no extrinsic ref.
      2. Open text then interp.
    2. Originalism
      1. Look 2 framers' intent & lots of wt if used w/custom
  2. Legal Realism: Law unpredictable b/c other factors affect judges & law
    1. Factual Indetermincay: Gen / narrow the facts 2 predet. outcome
    2. Normative Indeterminacy: Limit alt. tools & law
    3. LR & CLS

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