b'Federal Civil Procedure Outline\n\n\n\nPersonal Jurisdiction: can plaintiff sue defendant in this state?  Must satisfy a statute and constitutional due process.  In Personam Jurisdiction: jurisdiction over the person because of contact between the defendant and the forum state. \n\nStatutory Analysis: CA statute reaches the Constitutional limit.\n\n*Constitutional Analysis: requires \xe2\x80\x9csuch minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.\xe2\x80\x9d  Assess contact, relatedness, and fairness.\n\nTraditional Bases: domicile in form, consents, present in forum when served (unless brought by trick).\n\nContact: with forum state: purposeful availment & foreseeability\n\nPurposeful Availment: D must reach out to the forum.  E.g., marketing a product, using the roads, causing some effect.  Defendant need not set foot in forum.  An interactive website can be purposeful availment, but a passive website is probably not.\n\nForeseeability: it must be foreseeable that defendant could be sued in forum\n\nRelatedness: must have either Specific or General PJ\n\nSpecific PJ: exists where claim is related to defendant\xe2\x80\x99s contact with forum (even if D otherwise has minimal contact with forum).\n\nGeneral PJ: exists even for claims unrelated to defendant\xe2\x80\x99s contact with forum if defendant has continuous and systematic ties with forum such that he is \xe2\x80\x9cessentially at home\xe2\x80\x9d there.  Human always at home in domicile, business always at home where formed or where it has its principal place of business.  Might be other places, but physical presence required, not just sales or purchases.\n\nFairness: consider (1) convenience, (2) state\xe2\x80\x99s interest, and (3) plaintiff\xe2\x80\x99s interest.\n\nConvenience: forum OK unless puts D at severe disadvantage.  Relative wealth of parties is not determinative.\n\nState Interest: e.g., providing forum for its citizens\n\nSubject Matter Jurisdiction: must be met for each claim\n\n*Diversity of Citizenship: requires (1) the case is either between (a) citizens of different states or (b) a citizen of a state and a citizen of a foreign country, and (2) amount in controversy exceeds $75,000.  Measured at time case is filed.\n\nComplete Diversity Rule: no P can be citizen of the same state as any D.\n\nCitizenship\n\nHuman: state of domicile: (1) presence in state and (2) intent to make it permanent home.  Can only have one domicile.\n\nCorporation: both incorporated and principal place of business.  PPB is where managers direct, control and coordinate corporate activity (the \xe2\x80\x9cnerve center\xe2\x80\x9d).\n\nUnincorporated Association: where any member is citizen.\n\nDecedents, Minors, Incompetents: their citizenship, not rep\xe2\x80\x99s.\n\nAmount in Controversy: good faith claim (unless clear to a reasonable certainty cannot be) must exceed $75,000.  Measured at time of filing, but a P who wins less than $75,000 may have to pay D\xe2\x80\x99s litigation costs.\n\nAggregation: claims of one plaintiff against one defendant may be aggregated, even if unrelated.  This is only permissible aggregation, unless defendants are jointly liable, in which case number of defendants is irrelevant.\n\nEquitable Relief: amount met if either (1) action hurt plaintiff by more than $75,000 or (2) it would cost defendant more than $75,000 to comply with injunction.\n\nFederal Question: complaint shows right or interest founded substantially on federal law, and claim arises thereunder.\n\nWell-Pleaded Complaint Rule: plaintiff\xe2\x80\x99s claim itself must arise under federal law; ask if plaintiff is enforcing a federal right.  Federal defense is not enough.\n\nSupplemental Jurisdiction: exercised if claim shares a common nucleus of operative fact with claim that invoked federal SMJ (e.g. same T/O).  Can use supplemental jurisdiction to meet amount requirement.  But in a diversity case, plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity (but a defendant can).  Court has discretion not to hear if federal question dismissed early.\n\n*Removal: a defendant sued in state court can remove to federal court within 30-days after service, which restarts after each defendant is served, if claim could have been filed in federal court.  All defendants who have been served with process must join\xe2\x80\x94i.e., unanimity required.  Plaintiff can never remove, even on counterclaim. \n\nLimitation in Diversity Cases: If removal jurisdiction is based on diversity, cannot remove (1) more than 1 year after filing, or (2) if any defendant is a citizen of the forum state, even if complete diversity met.  \n\nErie Doctrine: in diversity case, federal court applies state substantive law and federal procedural law.  First, if any federal law, including FRCP or FRE, if on point and conflicts with state law, is applied by supremacy clause if valid\xe2\x80\x94i.e., if arguably procedural.  Second, if no federal law on point, and issue is (1) elements of claim or defense, (2) SOL, (3) tolling SOL, and (4) conflict of law rules, state law applies\xe2\x80\x94these are substantive.  Third, if none of these, balance: outcome determinative, federal v. state interests, and avoidance of forum shopping.\n\n*Venue: plaintiff may lay venue in any district where (1) all defendants reside or (2) a substantial part of the claim arose.  \n\nDifferent Districts in Same State: If all defendants reside in different districts of same state, venue proper in any of the districts.\n\nResidence: humans reside in district where domiciled (one).  Businesses of any kind reside in all districts where subject to PJ for this case (many).\n\nTransfer of Venue: only to a district where case could have been filed\xe2\x80\x94i.e., a venue that had PJ over defendant, unless all parties agree otherwise.  \n\nWhere Original Venue Proper: court has discretion to transfer for convenience and interest of justice, and considers whether following factors show that other venue is center of gravity: applicable law, keeping controversy in local community, burden of jury service, location of witnesses and evidence.\n\nWhere Original Venue Improper: may transfer in interests of justice or dismiss.\n\nForum Non Conveniens: dismissal or stay of case where transfer is impossible because more convenient court is in a different judicial system, based on same factors for change of venue.  Requires a very strong showing.  Other court must be adequate, even if not same remedies.\n\nService of Process: delivery to defendant of (1) summons and (2) complaint, within 120 days of filing complaint, or dismissal without prejudice.\n\nWho Can Serve: any non-party at least 18.\n\nMechanics\n\nPersonal Service: given to defendant personally, anywhere.\n\nSubstituted Service: ok if service (1) at defendants usual abode and (2) on someone of suitable age and discretion who resides there.\n\nOn Agent: ok if receiving service within scope of agency.\n\nState Law: can use methods permitted by law of state of forum or service.\n\nWaiver: mail complaint and two copies of waiver form with prepaid means of return.  If D executes and returns within 30 days, waives formal service and gets 60 days from mailing to her to respond.  Plaintiff files waiver in court, effective at filing.  Does not waive any defenses.  If D does not waive, must compensate P for costs of service if no good cause.\n\nGeographic Limitation: can serve process outside state only if state law allows.\n\nImmunity from Service: service not effective while in state to be witness or party in another case.\n\nPleadings\n\nRule 11: attorney or pro se party must sign all papers except discovery documents.  Signing certifies that to best of knowledge/belief after reasonable inquiry, (1) paper not for improper purpose, (2) legal contentions warranted by law, and (3) factual contentions have evidentiary support.  This is a continuing certification each time advocated in court.  Sanctions available to deter (rather than punish), and can be non-monetary.  Prior to imposing sanctions, must give opportunity to be heard.  If another party violates Rule 11, a party cannot immediately move for Rule 11 sanctions.  Instead, party serves motion but does not file, and party in violation has 21 days to fix problem.  If she does not, file the motion.  Court, sua sponte, can raise Rule 11, and need not give 21-day safe harbor.\n\nComplaint: must contain (1) statement of grounds of SMJ, (2) short and plain statement of the claim, and (3) demand for relief.  Must allege facts supporting a plausible claim.  Fraud, mistake and special damages must be pled with particularity.\n\n*Defendant\xe2\x80\x99s Response: must be within 21 days after service of process\n\nIssues of Form: made by Rule 12 motion: for more definite statement; motion to strike\xe2\x80\x94aimed at immaterial things (e.g. demand for jury).\n\nRule 12 Defenses: made by Rule 12 motion or answer.\n\nDefense\n\nWhen May be Raised\n\nLack of SMJ\n\nAnytime, even appeal\n\nLack of PJ\n\nMust be raised in first defensive response, or they are waived\n\nImproper Venue\n\n\n\nInsufficient Process (problem with docs)\n\n\n\nInsufficient Service of Process\n\n\n\nFailure to State a Claim\n\nAnytime through end of trial\n\nFailure to Join an Indispensable Party\n\n\n\nAnswer: if D made Rule 12 motion and denied, must serve answer within 14 days of ruling on motion.  In answer, must respond to all allegations by (1) admit, (2) deny, or (3) lack sufficient information to admit or deny.  Cannot use (3) if information is public knowledge or in D\xe2\x80\x99s control.  May also raise affirmative defenses (e.g., SOL, SOF).  You must plead affirmative defenses, or you risk waiving them.\n\nEffect of Failure to Deny: constitutes an admission on any matter except damages.\n\nCounterclaim: claim against an opposing party.  Should be put in answer.  Must assess SMJ for counterclaims as well.\n\nCompulsory: arises from same T&O, and must be filed or waived.  This is the only compulsory claim.  However, if never required to answer (e.g. dismissal succeeds, no waiver.\n\nPermissive: does not arise from same T&O.  May file with answer or assert in a separate case.\n\nCrossclaim: claim against co-party.  Must arise from the same T&O.  Always permissive.\n\nAmending Pleading\n\nRight to Amend: plaintiff\xe2\x80\x94once within 21 days after defendant serves first Rule 12 response.  Defendant\xe2\x80\x94once within 21 days after serving answer.\n\nIf No Right: leave granted if justice so requires.  Court looks to delay, prejudice, and futility of amendment.\n\nVariance: if evidence at trial does not match pleadings, at or after trial plaintiff can move to amend complaint to conform to evidence.\n\nRelation Back: amendment after SOL\n\nTo Join New Claim: if concerns same T/O.\n\nTo Change Defendant: relates back if (1) same T/O, (2) new party knew of case within 120 days of filing, and (3) knew that but for mistake, she would have been named originally.\n\nDiscovery\n\nRequired Disclosures: must be produced even if nobody asks.  Includes disclosure of experts who may be used at trial, written report containing their opinion, data used, qualifications, compensation, etc.\n\nDiscovery Tools: after 26(f) conference unless order permits otherwise.  All can be used to get info from parties, issue often is which can be used to get info from non-parties.  There is a duty to supplement discovery responses if things change.\n\nDepositions: questions oral or written which deponent answers under oath, recorded.  Can depose non-parties, but should be subpoenaed so compelled, and may duces tecum, requiring deponent to bring material.  Party need not be subpoenaed, and notice of deposition is sufficient to compel presence of party.\n\nInterrogatories: questions propounded in writing to another party, answered under oath.\n\nRequests to Produce: request to another party or a non-party if accompanied by a subpoena, to make available certain material.\n\nPhysical or Mental Exam: only available through court order upon demonstrating good cause, of party or someone relevant under party\xe2\x80\x99s control.  Physical or mental condition must be at issue.\n\nRequest for Admission: to a party to admit truth of any discoverable matter.\n\nScope of Discovery: anything relevant to a claim or defense, even if inadmissible, so long as reasonably calculated to lead to discovery of admissible evidence.\n\nPrivilege: cannot discover communication protected by privilege.\n\n*Work Product: cannot discover material \xe2\x80\x9cprepared in anticipation of litigation.\xe2\x80\x9d  Factual WP (e.g. witness statements) can be obtained if (1) substantial need and (2) not otherwise available.  Mental impressions, opinions, conclusions, and legal theories are absolutely protected from discovery.  WP need not be generated by lawyer; can be by party or any representative of party.\n\nClaiming Privilege of Work Product: must claim expressly and particularly describe materials by date, author, recipient, and privilege.\n\nInadvertent Production: notify other party as soon as possible, and other party must await decision on waiver.\n\nEnforcement of Discovery Rules\n\nPartial Violation Sanctions: where party responds to some but not all discovery: can get order compelling response and costs and fees for motion.  If party violates order compelling, can get remedies for total violation, costs and fees of motion, and contempt (except no contempt for refusing to submit to medical examination.\n\nTotal Violation Sanctions: costs and attorneys fees and, on judge\xe2\x80\x99s choice:\n\nEstablishment Order (establishes facts as true)\n\nStrike Pleadings (as to issues re the discovery)\n\nDisallow Evidence from disobedient party\n\nDismiss case (if bad faith)\n\nDefault Judgment (if bad faith).\n\nFor ESI, if failure to produce was due to good faith loss in routine operation of system, no sanctions unless extreme case.\n\nJoining Parties\n\nProper Parties: those who may be joined: (1) arise from the same TO and (2) raise at least one common question.  Then assess SMJ & PJ.\n\nNecessary Parties: absentee must be joined if necessary and joinder feasible.\n\nWho is Necessary: An absentee is necessary if  (1) without absentee court cannot accord complete relief among existing parties; (2) absentee\xe2\x80\x99s interest may be harmed if not joined; or (3) absentee claims an interest which subjects a party to multiple obligations.  Joint tortfeasors are not necessary parties.\n\nCan Absentee Be Joined: feasible if (1) PJ over absentee and (2) joinder will not destroy diversity.  If absentee cannot be joined, must proceed or dismiss the entire case, and might consider alternative forum, likelihood of harm, and whether court can shape relief to avoid potential harm.\n\nImpleader: defendant seeks to join a third-party defendant, usually for indemnity or contribution.  Right to implead within 14 days of serving answer, otherwise leave is required. Not a cross-claim, because TPD is not yet a party.  After TPD joined, plaintiff/TPD can assert claim against each other if arises out of same TO as underlying case.   Always look for SMJ.  However, so long as the third-party complaint does not involve a claim against the original plaintiff, there is no need for diversity among original P and TPD. \n\nIntervention: absentee wants to join pending suit, either as P or D, and court can re-align her.  Intervention must be timely.\n\nIntervention of Right: absentee\xe2\x80\x99s interest may be harmed if not joined and her interest is not adequately represented now.\n\nClass Action\n\nInitial Requirements\n\nNumerosity: too many members for practicable joinder\n\nCommonality: some questions of law or fact in common\n\nTypicality: rep\xe2\x80\x99s claims/defenses typical of those of the class\n\nAdequate Representation: rep will fairly and adequately represent class\n\nMust Fit Within One of Three Types\n\nPrejudice: necessary to avoid harm to class members or party opposing class (e.g., many claims to a limited fund).\n\nInjunctive Relief: seeking for injunction or declaratory judgment because class was treated alike by the other party, but not damages.\n\nDamages: (1) common questions predominate over individual questions, and (2) class action is superior method for handling dispute.  \n\nNotice: for this type only, must provide individual notice of class membership to all reasonably identifiable members, informing that they can opt out, will be bound otherwise, and may enter separate appearance through counsel.  Class representative pays for this notice.\n\nCourt must determine at an early practicable time whether to certify class, and if class certified, class and claims, issues, and defenses must be defined, and court must appoint class counsel.\n\nWho is Bound?  All class members except those who opt out of damages class.  There is no right to opt out of any other class.\n\nSettlement: parties can settle or dismiss certified class action only with court approval.  Court gives notice to class members of potential settlement/dismissal.  Court may allow a second chance to opt out in damages suit at this point.\n\nSMJ: in diversity, for citizenship and amount in controversy, consider rep only.\n\nAdjudication\n\nPre-Trial Adjudication\n\nVoluntary Dismissal: may be allowed on court order, but plaintiff has right to voluntarily dismiss without prejudice by filing written notice of dismissal before defendant answers.  If plaintiff dismisses second case by written notice, it is with prejudice, even if the first case was in state court.\n\nDefault Judgment\n\nFailure to State a Claim: tests only sufficiency of allegations; court ignores legal conclusions and looks only to allegations of fact and asks if accepted as true, would plaintiff win a judgment.  Facts alleged must support plausible claim.  Same motion, if made after answer, is motion for judgment on pleadings.\n\nSummary Judgment: moving party must show (1) no genuine dispute on a material fact and (2) entitled to judgment as a matter of law.  Evidence viewed in light most favorable to non-moving party.  Pleadings can be relevant if they fail to deny or admit something, but otherwise not evidence.  Hearsay or speculation is disregarded.\n\nPre-Trial Conferences: court may hold to process the case and foster settlement, and the final determines all issues to be tried and evidence to be presented, recorded in a pretrial conference order, which supersedes the pleadings.\n\nTrial\n\nJury Trial: \n\nRight: right to jury trial in federal court for civil actions at law.  If case involves both law and equity, jury decides facts underlying the damages claim, but not the equity claim.  Jury issues come first, then equity issues.  \n\nDemand: must be demanded in writing no later than 14 days after service of last pleading raising jury triable issues.  Otherwise waived.\n\nSelection: no limit to strikes for cause, but each side gets only 3 peremptory challenges.  Peremptory must be used in race and gender neutral way, because jury selection is state action.\n\n*Motion for Judgment as a Matter of Law: Directed Verdict: brought after other side has been heard at trial.  Granted if reasonable people could not disagree on the result.  Court views evidence in light most favorable to the non-moving party.  Plaintiff typically can move once, defendant twice.\n\nRenewed JMOL: same, but occurs after verdict.  Must move within 28 days after judgment.  If did not move for JMOL at trial, cannot renew.\n\nMotion for New Trial: where judgment was entered but circumstances require new trial.  Must move within 28 days after judgment.  Many grounds, but common one is prejudicial error at trial makes judgment unfair.  Also available for excessive (Fed & CA) or inadequate (CA) damages where figure \xe2\x80\x9cshocks the conscience.\xe2\x80\x9d\n\nRemittitur: gives plaintiff a choice: can take a lesser amount, or go through a new trial.  Available in both state and federal court.  Court cannot simply lower the figure.\n\nAdditur: gives defendant choice: either pay more, or go through new trial.  Available in CA, but is unconstitutional in federal court.\n\nMotion to Set Aside Judgment\n\nAppellate Review\n\nFinal Judgment Rule: generally, right to appeal only from final judgment\xe2\x80\x94ultimate decision of merits of the entire case.  File NOA in trial court within 30 days of entry of final judgment.  To determine if final, ask if judge has anything left to do on merits.  E.g., denial of motion for new trial is final, grant of remand not final.\n\nCA: final judgment as to one of several parties is final, whereas in federal it would not be.\n\nInterlocutory Review: a number of instances, but here is important one: Court of Appeals has discretion to review order granting or denying certification of class action.  Must seek review in COA (not trial court) within 14 days or order.  Appeal does not stay proceedings unless trial court or COA orders.\n\n*Preclusion: affirmative defense of preclusive effect of prior judgment on merits\n\nApplicable Law: preclusive effect of a judgment is determined by the law of jurisdiction of that initial judgment.\n\nJudgment on Appeal\n\nFederal: entitled to preclusive effect.\n\nCA: not entitled to preclusive effect.\n\nClaim Preclusion: claim cannot be brought if (1) both cases were brought by the same claimant against the same defendant, (2) first case ended in a valid final judgment on the merits, and (3) both cases asserted same cause of action or claim.\n\nOn the Merits: presumed unless states otherwise or based on jurisdiction, venue, or indispensable parties.  Default judgment is on the merits, as is judgment based on discovery abuse.\n\nSame Cause of Action/Claim\n\nFederal: same T/O\n\nCalifornia: same \xe2\x80\x9cprimary right\xe2\x80\x9d invaded.  If a single accident caused both personal injuries and property damage, there are two causes of action for different rights, and a later claim is allowed on the different right (even though same T/O).\n\nIssue Preclusion: precludes relitigation of particular issue if (1) first case ended with valid final judgment on the merits, (2) same issue was actually litigated and determined, (3) issue was essential to judgment, (4) preclusion sought against someone who was a party to the first case, and (5) preclusion sought by someone who was a party to the first case or falls into a non-mutuality exception.\n\nActually Litigated & Determined: must actually have been decided, not default or judgment for discovery problems.\n\nSought By Whom: traditionally, must be sought by someone who was a party to the first case (mutuality), but modern practice dispenses with this requirement and permits non-mutuality in some cases.\n\nNon-Mutual Defensive IP: used by non-party to first case who is a defendant in second case: permitted if party in first case had a full chance to litigate the issue there.\n\nNon-Mutual Offensive IP: used by non-party to first case who is plaintiff in second case: permitted if fair: consider whether (1) full and fair opportunity to litigate; (2) multiple suits foreseeable; (3) non-mutual party could not have joined easily in original suit; and (4) no inconsistent judgments as to issue on record.\n\n\n\n\n\nEssay Tip:\n\n\n\n1.  Always assess SMJ and PJ on each claim and party.'


b'Torts Outline\n\n\n\nIntentional Torts\n\nPreliminary Points\n\nNo Incapacity Defenses (e.g., insanity, intoxication, child)\n\nMust be Deliberate: must intent to do physical act constituting tort.\n\nTransferred Intent: if defendant has intent to produce legally forbidden consequences, that intent transfers even if a different consequence results or different person is injured.\n\nBattery: harmful or offensive contact with plaintiff\xe2\x80\x99s person\n\nOffensive: if unpermitted by reasonable/normal person (regardless of whether permitted by this particular plaintiff)\n\nPlaintiff\xe2\x80\x99s Person: includes anything plaintiff is holding, touching or carrying.  Thus, mugging or purse-snatching may be battery.\n\nAssault: creating reasonable apprehension of an immediate battery\n\nReasonable Apprehension: reasonable knowledge (need not be fear at all).  Plaintiff must be aware of the threat, or doesn\xe2\x80\x99t apprehend.\n\nImmediate Battery\n\nWords Alone Lack Immediacy: must be accompanying conduct (e.g., display of a weapon, drawing arm back).\n\nWords Can Negate Immediacy of Conduct\n\nFalse Imprisonment: act of restraint & plaintiff confined in a bounded area\n\nAct of Restraint\n\nThreats Sufficient\n\nOmissions Sufficient only if duty to assist in mobility is owed.\n\nPlaintiff Must be Aware of Confinement or Suffer Harm\n\nBounded Area: not bounded if reasonable means of escape that plaintiff can reasonably discover.  \n\nNote: robbery can constitute false imprisonment.\n\nIntentional or Reckless Infliction of Emotional Distress: outrageous conduct causing severe distress.\n\nOutrageous Conduct: exceeds all bounds of decency tolerated in civil society\n\nNot Outrageous: mere insults; exercise of 1st Amendment rights.\n\nMay be Outrageous: continuous or repetitive conduct; defendant is common carrier or innkeeper; plaintiff is member of fragile class (child, elderly, pregnant women).\n\nAlways Outrageous: exploit or target known emotional weakness.\n\nSevere Distress: plaintiff need not suffer physical symptoms\n\nTrespass to Land: physical invasion interfering with exclusive possession of land\n\nInvasion: either (a) entering property, even if defendant is unaware; or (b) deliberately throwing tangible object onto land.\n\nInterference With Exclusive Possession: proper plaintiff is person in possession, rather than owner; possession also covers air above and soil below to reasonable distance.\n\nTrespass to Chattel & Conversion: intentional interference (damage or deprivation of possession) with item of personal property.  \n\nSlight Interference\xe2\x80\x94Trespass; Significant Interference\xe2\x80\x94Conversion.\n\nRemedy: conversion plaintiffs recover full value, not just cost of repair.\n\nNo Defense for Mistake as to Ownership.  Thus, BFP can commit.\n\nAffirmative Defenses\n\nConsent\n\nPlaintiff Must Have Legal Capacity to Consent.  However, children can consent to age-appropriate issues.\n\nImplied Consent: by custom or based on reasonable interpretation of plaintiff\xe2\x80\x99s objective conduct.\n\nConsent Has A Scope: if exceeded, liability.  However, implied consent for doctor to address adjacent issue if likely you\xe2\x80\x99d want it.\n\nSelf-Defense, Defense of Others, Defense of Property\n\nThreat Must Be in Progress or Imminent\n\nReasonable Belief That Threat is Genuine\n\nForce Must Be Proportional.  No deadly force to protect property.\n\nNecessity: Defense to Property Torts Only\n\nPublic Necessity: interference with property in an emergency to protect community as a whole or significant group of people.\n\nPrivate Necessity: invasion of property in emergency to protect personal interest.  Legal consequences: (1) remains liable for compensatory damages; (2) no liability for nominal or punitive damages; and (3) during emergency, property owner cannot throw defendant off land but must allow him to remain in position of safety.\n\nDefamation: a published defamatory statement specifically identifying the (living) plaintiff, causing damages.\n\nDefamatory: tends to adversely affect reputation.  But not mere insults.\n\nGroups: if statement references small group, every member is identified.\n\nPublication: sharing statement with someone other than plaintiff.  Publication need not be intentional, but may be negligent.\n\n*Damages\n\nPresumed \n\nLibel\n\nSlander Per Se: must be statement about (a) business or profession, (b) commission of crime of moral turpitude, (c) imputing unchastity to woman; or (d) loathsome disease (leprosy or venereal disease).\n\nMust be Proven: Slander Not Per Se: economic harm.\n\nStatement of Public Concern: plaintiff must prove falsity + fault (if plaintiff is public figure, requires malice; otherwise, negligence).  Malice is subjective.\n\nDefenses\n\nConsent\n\nTruth: defendant must prove truth (unless matter of public concern).\n\nPrivileges\n\nAbsolute: status-based\n\nSpouses: may communicate defamation to each other\n\nGovernment Officer in Official Duty: also judges, lawyers, witnesses\n\nQualified: where public interest in encouraging candor.  Must have good faith reasonable belief in truth, and cannot include irrelevant information (e.g., student is good but is gay), even if true.  E.g., letter of rec.\n\nPrivacy\n\nAppropriation: unauthorized commercial use of name or picture.  Newsworthiness Exception: may be used for newsworthy purposes.\n\nIntrusion: invasion of physical seclusion in a way highly offensive to average person.  Must have reasonable expectation of privacy.\n\nFalse Light: widespread dissemination of material falsehood highly offensive to average person.  Damages: unlike defamation, can get for non-economic harm.  Also, unlike defamation, falsehood need not damage reputation.\n\nDisclosure: widespread dissemination of (truthful) confidential information where highly offensive to average person.  Newsworthiness exception applies.  Also, information must truly be private.\n\nDefenses\n\nConsent: defense to all.\n\nPrivileges from Defamation: defense in False Light and Disclosure suits only.\n\nProcess & Prosecution\n\nMalicious Prosecution: (1) institution of proceedings, (2) favorable termination, (3) absence of probable cause, (4) improper purpose, and (5) damages.\n\nAbuse of Process: wrongful use of process for ulterior purpose and act or threat to accomplish purpose.  Doesn\xe2\x80\x99t matter if suit has merit.\n\nNegligence: Duty, Breach, Cause, & Damage\n\nDuty of Care: obligation to take risk-reducing cautions\n\nOwed to Whom?  Only foreseeable victims of carelessness.  Exception: rescuers need not be foreseeable.\n\nHow Much Care Owed: Default: that exercised by hypothetical reasonably prudent person acting under similar circumstances.  Objective standard (doesn\xe2\x80\x99t matter if D is retarded, novice).  Exceptions:\n\nDefendant Has Superior Skill or Knowledge: reasonable person is person with that skill or knowledge.\n\n*Defendant\xe2\x80\x99s Physical Characteristics: reasonable person is person with similar physical characteristics (e.g., blind, wheelchair).\n\nSpecial Duty Scenarios: duty owed is modified where defendant is\n\n*Child Over 5: hypothetical child of similar age, experience and intelligence acting under similar circumstances.  Subjective standard.  Exception: if child is engaged in adult activity, use default standard of care.\n\nProfessionals: skill and knowledge normally possessed by members of that profession in good standing in similar communities.   This is an empirical standard that looks to custom.  Expert typically required.  Note: specialists are measured on national scale, primaries on local.\n\n*Premises Liability \n\nKind of Trespasser\n\nCause of Injury\n\n\xc2\xa0\n\nActivity Being Done by Possessor On the Land\n\nDangerous Condition On the Land\n\nUnknown Trespasser\n\nNo Duty Owed\n\nKnown or Anticipated Trespasser\n\nDefault\n\nPossessor must protect against conditions that are (1) artificial, (2) highly dangerous, (3) concealed, & (4) known to possessor.\n\nLicensee (enters with permission but confers no economic benefit on possessor,\n\ne.g. social guests)\n\nDefault\n\nPossessor must protect against any conditions (1) concealed and (2) known by possessor.\n\nInvitee (either enter premises for commercial purposes or enters land open to public)\n\nDefault\n\nPossessor must protect against any conditions (1) concealed and (2) either known or could have discovered through reasonable inspection. \n\nFirefighters & Police Officers: never recovers negligence damages for injuries inherent to their employment.  They assumed risk.\n\nChild Trespassers: owed duty of reasonable prudence with regard to artificial conditions on land.  The more foreseeable the trespass, the more care required (e.g., pool, candy).  May also consider child\xe2\x80\x99s own ability to appreciate danger and take precautions.\n\nAvoiding Liability: fix the problem or give a warning.\n\nStatutory Standards of Care: criminal statutes providing duty which plaintiff might seek to import to tort.  \xe2\x80\x9cBorrowing\xe2\x80\x9d permitted if (1) plaintiff is in class of persons statute seeks to protect, and (2) accident is in class of risks that statute seeks to prevent.  Exceptions to Borrowing: compliance with statute (1) more dangerous than violation, or (2) impossible. \n\nDuties to Act Affirmatively: Generally, none.  No duty to rescue imperiled person.  Exceptions: (1) if relationship, duty to rescue; or (2) defendant put plaintiff in peril.  But, defendant need not put own life in peril.  Gratuitous Rescuer: if voluntarily opt to rescue, liable for negligence.\n\n*Negligent Infliction of Emotional Distress: negligent act (but unlike others because) causing no physical trauma itself but causing emotional distress: plaintiff can recover for emotional distress only in any of the following: \n\nNear Miss: (1) plaintiff in zone of danger of act; (2) distress caused subsequent physical manifestations (but modern trend to relax).\n\nBystander: (1) serious injury to or death of third person, (2) close relationship between bystander and third person, and (3) plaintiff sees injury and is distressed.\n\nRelationship: (1) plaintiff and defendant in business relationship, and (2) highly foreseeable that negligence will distress plaintiff.  E.g., lab.\n\nBreach: plaintiff must identify specific behavior (act or omission) that was wrongful and articulate theory as to why unreasonable.\n\nRes Ipsa Loquitur: used by plaintiff that cannot identify wrongful conduct: plaintiff must show accident of a type normally associated with negligence of someone in defendant\xe2\x80\x99s position (usually shown by control).  This gets issue to jury, but jury need not accept inference.\n\nCausation\n\nFactual: But For breach, plaintiff would be uninjured today.  Modifications for multiple tortfeasors:\n\nMerged Causes: each liable if each a substantial factor\xe2\x80\x94i.e., each breach could have caused the harm by itself.\n\nUnascertainable Cause: burden shifts: each defendant must demonstrate his breach did not cause the harm.\n\nLegal: Proximate: harm must be foreseeable.  Following are examples of instances in which proximate cause has been found despite attenuation:\n\nIntervening Medical Negligence\n\nIntervening Negligent Rescue\n\nIntervening Protection or Reaction Forces\n\nSubsequent Disease or Accident: after D causes weakened condition\n\nNote: intervening criminal acts and intentional torts can, in some cases, be foreseeable result of negligence, where negligence increases their likelihood.\n\nDamage\n\nEggshell Skull: defendant is liable for all harms suffered even if surprising (this applies to all torts, not just negligence).\n\nAffirmative Defense \n\nComparative Negligence: plaintiff failed to exercise reasonable care for his own safety.  Jury assigns percentage of fault to each, plaintiff\xe2\x80\x99s recovery is reduced accordingly.\n\nPure: Majority Rule: go strictly by numbers.\n\nModified/Partial: if P >50% negligence, P gets nothing.\n\nContributory Negligence: at common law, barred recovery entirely\n\nVoluntary Assumption of Known Risk\n\nStrict Liability\n\nInjuries Caused by Animals\n\nDomestic: No Strict Liability, unless knowledge of vicious propensities\xe2\x80\x94unless victim is trespasser on your property.\n\nWild: Strict Liability.\n\nAbnormally Dangerous Activities: activity (1) creates foreseeable risk of serious harm even with reasonable care, and (2) not common where conducted.\n\nProducts: strict liability for (1) merchants of a (2) defective product that (3) has not been altered and (4) is being used in a foreseeable manner.\n\nEssay Tip: see if question asks about strict liability, negligence, or breach of contract (e.g., warranty of merchantability).  It is possible for products liability to be based in strict liability, but also, as alternative, in negligence or contract.\n\nElements: plaintiff must prove\n\nMerchant: routinely deals in goods of this type.  Includes lessors, but not service providers who provide attending product.  Every party in chain of distribution is a merchant and potentially strictly liable.\n\nDefective Product\n\nManufacturing Defect: product differs from all others from same assembly line in manner making it more dangerous than expected\n\nDesign Defect: there is a hypothetical alternative design (1) safer, (2) economical, and (3) practical.  Warning will not absolve.\n\nInformation Defect: no superior design and still has residual risks that are not adequately disclosed.\n\nNo Alteration: product not altered since left defendant.  Presumed if product moved in ordinary channels of distribution.\n\nPlaintiff Making Foreseeable Use of Product\n\nAffirmative Defense: Comparative Responsibility: plaintiff misconduct will reduce liability accordingly.\n\nDisclaimers of Liability are Irrelevant\n\nIntermediary\xe2\x80\x99s Failure to Discover Defect is No Defense\n\nNuisance: excessive interference with ability to use and enjoy one\xe2\x80\x99s property.  Court balances interests, very subjective.\n\nVicarious Liability\n\nEmployer-Employee: employer liable provided tort committed in scope of employment.  Generally, intentional torts outside scope, unless (1) job involves use of force, (2) tort serves employer\xe2\x80\x99s interest (even if overzealous), or (3) employer authorized tort.\n\nHiring Party-Independent Contractor: no vicarious liability unless contractor injures invitee on business\xe2\x80\x99s property.\n\nCar Owner-Driver: no vicarious liability unless driver is doing errand for owner.\n\nParent-Child: no vicarious liability, no exceptions.  However, parents liable for own torts that enable kids to commit torts.\n\nCo-Defendant Contribution: Comparative Contribution: assign percentages of fault and pay accordingly.  However, Co-Defendant can recover complete contribution (i.e., Indemnity) from co-defendant: (1) in vicarious liability cases, the purely passive party can get indemnity from tortfeasor, and (2) in product liability, a non-manufacturer can be indemnified by manufacturer.\n\nLoss of Consortium: in any case where victim of tort is married, uninjured spouse has a separate tort claim.  Allows uninjured spouse to recover loss of household services, loss of society/companionship, and loss of sex.  Any defense asserted against injured spouse can be asserted against uninjured spouse.'


b"Constitutional Law Outline\n\n\n\nFederal Judicial Power: Article III\n\nCases & Controversies: Justiciability Requirements\n\n*Standing: is plaintiff proper party to bring matter to court\n\nInjury: has been or imminently will be injured\n\nMust be Personally Suffered Injury\n\nInjunctive or Declaratory Relief: must show likelihood of future personal harm.\n\nCausation & Redressability: defendant must have caused injury, so that favorable court decision will remedy decision.\n\nNo 3rd Party Standing: plaintiff cannot present the claims of another, unless (and plaintiff must meet all other standing requirements)\n\nClose Relationship: between plaintiff and injured party.  E.g., doctor-patient\n\n3rd Party Unlikely to Assert Rights\n\nOrganizations on Behalf of Members: so long as individual members have standing, interest is germane to organization\xe2\x80\x99s purpose, and the individuals\xe2\x80\x99 participation is unnecessary.\n\nNo Generalized Grievances: plaintiff cannot sue solely as citizen or taxpayer objecting to government conduct.  Exception: taxpayers may challenge government expenditures of money pursuant to statute as violating establishment clause.\n\nRipeness: may the federal court grant pre-enforcement review of a statute or regulation?  Courts analyze two factors:\n\nHardship of No Pre-Enforcement Review\n\nFitness of Record for Judicial Review \n\nMootness: if events after the lawsuit is filed end plaintiff\xe2\x80\x99s injury, the case should be dismissed, unless\n\nWrongs Capable of Repetition Yet Evading Review: must still have some chance, even remote, of happening to plaintiff.\n\nVoluntary Cessation: if defendant halts voluntary practice but can resume at any time, no mootness.\n\nClass Action Suits: if named plaintiff\xe2\x80\x99s claim becomes moot, class not dismissed so long as one member has ongoing injury.\n\nPolitical Question Doctrine: claims of constitutional violations that are left to political branches to resolve:\n\nRepublican Form of Government Clause\n\nPresident\xe2\x80\x99s Conduct of Foreign Policy\n\nImpeachment & Removal Process\n\nPartisan Gerrymandering\n\nSupreme Court Review: requires Case or Controversy, and\n\nCertiorari: discretionary review: all cases from state court or federal circuits.\n\nDirect, Non-Discretionary Appeal: 3-judge district court\n\nOriginal & Exclusive Jurisdiction: suits between states\n\nFinal Judgment required\n\nCannot be Independent & Adequate Ground of State Court Decision\n\nLower Federal Court Review: requires Case or Controversy, and\n\nSovereign Immunity: 11th Amendment: bars suits against state (bit not local) governments, in state courts, federal agencies, and federal courts, unless\n\nWaiver: must be explicit\n\n14th Amendment: state can be sued under statute adopted under Section 5 of the 14th Amendment\n\nFederal Government may sue state governments\n\nBankruptcy Proceedings: state cannot assert sovereign immunity in a bankruptcy proceeding.\n\nState Officers May Be Sued for Injunctive Relief, or for personal liability.\n\nAbstention: instances with jurisdiction but refusal to hear: federal courts may not enjoin pending state court proceedings.\n\nFederal Legislative Power\n\nSources of Congressional Authority\n\nRequires Express or Implied Authority: there is no general federal police power, unless legislating for military, Indian reservations, federal territories, or D.C.\n\nNecessary & Proper Clause: Congress can take all actions necessary and proper to carry out its authority, and may choose any means not prohibited to do so.\n\nTaxing, Spending, & Commerce Clause\n\nGeneral Welfare: congress may create any tax and spend in any way for the general welfare.\n\nCommerce Clause: Congress can regulate foreign and interstate by regulating any of the following:\n\nChannels of Interstate Commerce: highways, streams, etc.\n\nInstrumentalities of Interstate Commerce & Persons or Things in Interstate Commerce: internet, telephones, mails, cattle, etc.\n\nActivities With Substantial Effect on Interstate Commerce: intra-state activities with some, even minor, effect on interstate commerce.  However, in the area of non-economic activity, \xe2\x80\x9csubstantial effect\xe2\x80\x9d cannot be based on cumulative act (e.g., cannot regulate violence against women even though significant cumulative impact on economy).\n\nException: laws regulating guns in school zones exceed commerce clause power.\n\n14th Amendment Section 5: Congress cannot create new rights or expand the scope of rights, but can act (i.e., pass laws) to prevent or remedy violations of rights already recognized by the courts, and such laws must be proportional and congruent to remedying constitutional violations.\n\n10th Amendment Limitation: all powers not granted to federal government are reserved to the states.\n\nCongress Cannot Compel State Activity: congress cannot compel state legislative or regulatory activity.  However, Congress can induce states if conditions are (1) clearly stated, (2) not unduly coercive, and (3) related to program.  E.g., reducing federal funding for other related programs.\n\nCongress May Prohibit Harmful State Commercial Behavior\n\nCongressional Delegation of Powers\n\nNo Limit: no limit exists on Congressional authority to delegate powers.\n\nLegislative Vetoes & Line-Item Vetoes Unconstitutional\n\nLegislative Veto: Congress cannot attempt to overturn an executive branch action without bicameralism and/or presentment\n\nLine Item Veto: president cannot veto part of a bill while signing the rest into law.\n\nCongress Cannot Delegate Executive Power to itself or others to implement or enforce the law.\n\nFederal Executive Power\n\nForeign Policy\n\nTreaties: requires senate ratification\n\nSupersedes All State Laws\n\nTreaty vs. Federal Statute: most recent control\n\nConstitution Supersedes All Treaties\n\nExecutive Agreements: agreements between U.S. & foreign country effective when signed by countries\xe2\x80\x99 leaders\n\nMay be Used for Any Purpose (including those for treaties)\n\nExecutive Agreements Prevail Over State, But Not Federal, Law.\n\nCommander in Chief: powers to use troops in foreign countries is very broad.\n\nDomestic Affairs\n\nAppointment & Removal Power\n\nWho Possesses: \n\nPresident appoints ambassadors, federal judges, and officers of the U.S., and senate must confirm. \n\nCongress may vest appointment of inferior officers in president, federal department heads, or lower federal courts.   An inferior officer is someone that can be fired by a superior officer.\n\nCongress cannot give appointment power to itself or its officers.\n\nRemoval Power: president may fire any executive branch official unless limited by statute.  Congress can limit removal by statute if (1) independence from president is important, and (2) statute merely limits removal to good cause, but but does not prohibit it altogether.\n\nImpeachment & Removal\n\nPresident, VP, federal judges, and all other officers may be impeached and removed for treason, bribery, or high crimes and misdemeanors.\n\nImpeachment does not remove a person from office.  House impeaches (majority vote), then trial in senate.  Only if senate convicts (2/3 vote) is officer removed.\n\nPresidential Civil Immunity: President has absolute immunity for civil suits for money damages for anything done in carrying out presidency, but no immunity for acts prior to taking office.\n\nExecutive Privilege: protects papers & conversations with advisors, but yields to overriding need for the information.\n\nPardon Power: president has power to pardon all accused or convicted of federal crimes, but no pardon for impeachment.\n\nFederalism: limits on state and local government power\n\nPreemption: Supremacy Clause: federal law trumps state law\n\nExpress: states that it is exclusive\n\nImplied\n\nFederal & State Law Mutually Exclusive\n\nImpedes Achievement of Federal Objective\n\nCongress Evidences Clear Intent to Preempt: e.g., immigration law.\n\nState Cannot Tax or Regulate Federal Activity: state cannot put substantial burden on federal activity.\n\nDormant Commerce Clause, Privileges & Immunities Clause\n\nDefinitions\n\nDormant Commerce Clause: state or local law is unconstitutional if it places an undue burden on interstate commerce.\n\nArt. 4 Privileges & Immunities Clause: no state may deprive a citizen of another state of the privileges and immunities it accords its own citizens.\n\n14th Amendment Privileges or Immunities Clause: no state can unduly burden U.S. citizen\xe2\x80\x99s right to travel.\n\nIf State Law Does Not Discriminate Against Out-of-Staters\n\nArt. 4 Privileges & Immunities Clause Inapplicable\n\nDormant Commerce Clause Test: if law puts a burden on interstate commerce, it violates the Dormant Commerce Clause if the burdens outweigh the benefits to state and local governments.\n\nIf State Law Discriminates Against Out-of-Staters\n\nDormant Commerce Clause: if the law burdens interstate commerce, it violates Dormant Commerce Clause unless it is necessary to achieve an important state objective.  Exceptions:\n\nCongressional Approval: if Congress approves of state or local law, it is permissible.  No more dormancy.\n\nMarket Participant Exception: state or local government may favor its own citizens in receiving benefits from state government programs or in doing business with the state.\n\nArt. 4 Privileges & Immunities Clause: discrimination permitted if necessary to achieve important government purpose.\n\nDiscrimination Must Regard Civil Liberties or Important Economic Activities: ability to hunt for sport not enough.\n\nCorporations & Aliens: cannot invoke this provision  (but can sue under Dormant Commerce Clause).\n\nState Taxation of Interstate Commerce\n\nStates may not use their tax systems to help in-state businesses.\n\nState only may tax activities that have substantial nexus to the state\n\nState taxation of interstate companies must be fairly apportioned\n\nFull Faith & Credit: courts in one state must enforce judgments from other states so long as all of the following requirements are met:\n\nIssuing Court Had Subject Matter & Personal Jurisdiction\n\nJudgment on Merits\n\nFinal Judgment\n\nStructure of Constitutional Protections for Individual Liberties\n\nIs There Government Action?\n\nRule: Constitution applies to state, not private, action.\n\nExceptions: private conduct to which Constitution applies\n\nPublic Functions Exception: if private entity is performing task traditionally and exclusively done by government, Constitution applies.  Very narrow.\n\nEntanglement: if government authorizes, encourages or facilitates private conduct, the Constitution applies.  Examples:\n\nCourts Cannot Enforce Racially Restrictive Covenant\n\nState Action Where State Leases Space\n\nState Action By Provision Of Free Textbooks To Schools\n\nNo State Action By Private School Despite Government Funding: government subsidy by itself is not enough for state action.\n\nNo State Action For Collegiate Sports Decisions\n\nState Action Where Private Entity Regulates Sports Within State\n\nNo State Action By Private Club With Liquor Licence\n\nConstitution vs. Statute: Congress by statute may apply constitutional norms to private conduct.  \n\n13th Amendment: Congress may prohibit private race discrimination through statute pursuant to 13th Amendment.\n\nCommerce Clause: Congress can use its commerce clause authority to prohibit private discrimination.\n\n14th Amendment Section 5: when regulating under this section, Congress only has authority over state and local governments, not private conduct.\n\nApplication of the Bill of Rights\n\nGeneral Application: applies directly only to the federal government, but is applied to state governments through the 14th Amendment Due Process Clause.  Only 4 provisions have not yet been found to be incorporated:\n\n3rd Amendment Rights Against Quartering\n\n5th Amendment Right to Grand Jury Indictment\n\n7th Amendment Right to Civil Jury Trial\n\n8th Amendment Right Against Excessive Fines\n\nLevels of Scrutiny: a law will be upheld if:\n\nStrict Scrutiny: necessary to achieve a compelling government purpose.  Only government\xe2\x80\x99s actual objective will be analyzed.  Government has burden of proof.\n\nIntermediate Scrutiny: substantially related to an important government purpose.  Only government\xe2\x80\x99s actual objective will be analyzed, not simply conceivable one.  Government has burden of proof.\n\nRational Basis: rationally related to a legitimate government purpose.  Any conceivable legitimate purpose is sufficient.  Challenger has burden of proof.\n\nProtected Individual Liberties\n\nDefinitions\n\nProcedural Due Process: procedures that government must follow when depriving of life, liberty or property\n\nSubstantive Due Process: asks whether government have adequate reason for deprivation\n\nEqual Protection: whether government\xe2\x80\x99s differential treatment are justified\n\nProcedural Due Process\n\nHas There Been Governmental Deprivation of Life, Liberty, or Property\n\nDefinitions\n\nDeprivation of Liberty: loss of a significant freedom provided by the constitution or statute.  However, reputational harm itself does not count.\n\nDeprivation of Property: an unfulfilled entitlement.  An entitlement is a reasonable expectation of continued receipt of a benefit.\n\nGovernment Negligence: insufficient as a deprivation of due process.  However, in emergency situation, liability if conduct \xe2\x80\x9cshocks the conscience.\xe2\x80\x9d\n\nFailure to Protect: government\xe2\x80\x99s failure to protect people from privately-inflicted harm does not deny due process.  Exception: custody, or government creates the danger.\n\nIf So, What Procedures Are Required?\n\nTest: balance\n\nImportance of Interest to Individual\n\nAbility of Additional Procedures to Increase Accuracy of Fact-Finding\n\nGovernment\xe2\x80\x99s Interest\n\nExamples\n\nWelfare Benefits: before termination, must be notice & hearing\n\nSocial Security Disability: need only a post-termination hearing\n\nStudent Discipline: notice of charges & opportunity to explain\n\nChild Custody: notice & hearing before termination\n\nPunitive Damages: require instructions to jury + judicial review, and grossly excessive punitive damages violate due process\n\nU.S. Citizen Enemy Combatant: must be given due process\n\nPrejudgment Attachment: except in exigent circumstances, must be preceded by notice & hearing.  Note: government may seize property used in crime, even if innocent owner.\n\nEconomic Liberties: money, jobs\n\nRational Basis: deprivation of economic liberties subject to rational basis review.\n\nTakings Clause: government may take private property for public use if it provides just compensation.\n\nIs There A Taking?\n\nPossessory Taking: confiscation or physical occupation of property, even if but a single inch.\n\nRegulatory Taking: regulation that leaves no reasonable economically viable use of the property.  \n\nGovernment conditions on the development of a property must be justified by a benefit roughly proportionate to burden imposed.\n\nProperty owner may bring challenge even as to regulations already in place at the time the property was acquired.\n\nTemporarily denying owner ability to develop property is not a taking, so long as delay is reasonable.\n\nIs It For Public Use?  So long as government acts out of reasonable belief that taking will benefit the public.  Even if property given to private parties.\n\nHas Just Compensation Been Paid: measured by loss to the owner; gain to taker is irrelevant.\n\nContracts Clause: no state shall substantially impair existing contracts\n\nPrivate Contracts: Intermediate Scrutiny: state impairment permitted where reasonably and narrowly tailored to serve legitimate and important government purpose.\n\nState Government Contracts: Strict Scrutiny\n\nEx post facto clause does not apply in civil cases.  It is wrong answer.  Retroactive civil need only meet rationale basis.\n\nRight to Privacy: fundamental right generally triggering strict scrutiny, including\n\nMarry\n\nProcreate\n\nCustody of One\xe2\x80\x99s Children\n\nKeep Family Together (includes extended family)\n\nControl Children\xe2\x80\x99s Upbringing\n\nContraceptives\n\nAbortion: not strict scrutiny\n\nPrior to Viability: may not prohibit abortion, but can regulate so long as no undue burden.  24-hour wait, and prohibition on partial-birth, is OK.\n\nViability (when fetus can survive outside of womb): may prohibit abortion unless necessary to protect woman\xe2\x80\x99s life or health.\n\nSubsidization: no government duty to subsidize or use public facilities for abortions.\n\nSpousal Consent/Notification Unconstitutional\n\nParental Notice/Consent: state may require parental notice or consent for unmarried minor\xe2\x80\x99s abortion but only if there is alternative procedure where minor can go before judge, who can find maturity or in best interest\n\nPrivate Consensual Homosexual Activity: but level of scrutiny unclear.\n\nRight to Refuse Medical Treatment: level of scrutiny unclear: competent adults can refuse medical care; state may require clear and convincing evidence that person wants treatment terminated; state may prevent family members from terminating treatment for another.\n\nNo Right to Physician-Assisted Suicide\n\n2nd Amendment: non-absolute right to guns in home for security. Level of scrutiny unclear.  \n\nTravel: interstate travel is a fundamental right\n\nLaws preventing people from entering a state must meet strict scrutiny\n\nDurational Residency Requirements: must meet strict scrutiny\n\nRestrictions on Foreign Travel: rational basis scrutiny\n\nVote\n\nLaws preventing some citizens from voting must meet strict scrutiny\n\nOne Person, One Vote must be met for all elections, and electoral districts must be roughly equal in population\n\nAt-Large elections permitted unless proof of discriminatory purpose\n\nUse of race in drawing election district lines must meet strict scrutiny\n\nCounting uncounted votes without standards in a presidential election violates equal protection\n\nNo Fundamental Right to Education\n\nEqual Protection\n\nApproach:\n\nWhat is the Classification?\n\nWhat Level of Scrutiny?\n\nIs Scrutiny Met?\n\nClassification Based on Race or National Origin\n\nStrict Scrutiny Applies\n\nHow Discriminatory Classification Proven?\n\nFacial Discrimination: law on its face classifies\n\nFacially Neutral, But Discriminatory Impact & Intent\n\nNote: if neither is met, apply rational basis\n\nClassifications Benefitting Minorities\n\nStrict Scrutiny Applies\n\nQuotas Require Clear Proof of Past Discrimination\n\nSchool Admissions: may use race as factor in decisions, but cannot add points to application based on race.\n\nPublic School Assignment: race cannot be used in assigning students to schools, unless strict scrutiny is met.\n\nGender Classification\n\nIntermediate Scrutiny Applied, but justification must be exceedingly persuasive.\n\nHow Classification Proven\n\nFacial Discrimination\n\nFacially Neutral, But Discriminatory Impact & Intent\n\nNote: if neither is met, apply rational basis\n\nClassifications Benefitting Women\n\nIntermediate Scrutiny Applies\n\nIf based on role stereotypes, unconstitutional.\n\nIf designed to remedy past discrimination, likely constitutional.\n\nAlienage Classifications: laws discriminating against non-U.S. citizen\n\nGenerally, Strict Scrutiny Applies \n\nRelate to Self-Government/Democratic Process: Rational Basis: government can deny non-citizens voting, serving on jury, police officer, teacher, probation officer.\n\nCongressional Discrimination: rational basis\n\nUndocumented Alien Children: Intermediate Scrutiny\n\nNon-Marital Children: Intermediate Scrutiny.  Laws providing benefit to all marital children but no non-marital children are unconstitutional.\n\nRational Basis Classifications\n\nAge\n\nDisability\n\nWealth\n\nEconomic Regulations\n\nSexual Orientation\n\nReligion: no case yet.  Always has been strict scrutiny under Establishment Clause.\n\nEqual Protection & Fundamental Rights: where action burdens a fundamental right, but the classification would otherwise be rational basis, apply strict scrutiny but note how it is based on the fundamental right, not the classification.\n\n*First Amendment\n\nFree Speech Methodology\n\nContent-Based v. Content-Neutral Laws\n\nContent-Based Laws: Strict Scrutiny.  Two types:\n\nSubject-Matter Restriction: application of the law depends on the content of the speech.\n\nViewpoint Restriction: application of law depends on ideology of the message.\n\nContent-Neutral Laws: Intermediate Scrutiny\n\nPrior Restraint: Generally: disfavored, and requires narrowly tailored measure to protect against special societal harm\n\nCourt Orders Preventing Speech: Strict Scrutiny.  However, procedurally proper court orders must be complied with until overturned.  Person can be punished for violating a court order, and is barred from challenging.\n\nLicensing/Permit Systems: permitted if government has important reason for licensing, clear criteria giving agency little discretion, and procedural safeguards.\n\nVagueness & Overbreadth\n\nVagueness: laws regulating speech must be clear about what is prohibited.\n\nOverbreadth: regulates substantially more speech than permitted under 1st Amendment.\n\nFighting Words Laws: always vague and unconstitutional.\n\nSymbolic Speech: government may regulate communicative conduct if it has an important interest unrelated to suppression of the message and impact on communication is no greater than necessary.  Burning flag OK, but not draft card.\n\nCampaigns: may limit contributions, but not expenditures.\n\nAnonymous Speech: protected\n\nGovernment Speech: cannot be challenged under 1st Amendment.\n\nUnprotected & Less-Protected Speech\n\nIncitement of Illegal Activity: government may punish speech if there is a substantial likelihood of imminent illegal activity and the speech is directed to causing it.\n\nObscenity\n\nRule: obscenity is material that (1) appeals to prurient interest; (2) is patently offensive under law at issue; and (3) taken as a whole, material must lack serious redeeming artistic, literary, political, or scientific value (measured nationally).\n\nZoning Ordinances: may be used to regulate location of adult stores.\n\nChild Pornography: may be banned, even if not obscene\n\nPrivate Possession of Obscenity: cannot be prohibited.\n\nAsset Seizure: government may seize all assets of businesses convicted of violating obscenity laws.\n\nProfane & Indecent Speech: generally protected unless in free media or school\n\nCommercial Speech\n\nFalse/Deceptive Advertising unprotected\n\nTrue Ads: may be regulated if inherently risks deception\n\nGovernment May Prohibit Professional Advertising/Trade Names\n\nMay Prohibit Attorney In-Person Solicitation for Profit\n\nCannot Prohibit Accountant In-Person Solicitation for Profit\n\nOther Regulation: Intermediate Scrutiny\n\nDefamation\n\nPublic Official or Figure: can recover for defamation only by proving falsity and actual malice (knows falsity or acted recklessly).\n\nPrivate Figure, Public Concern: can recover by proving falsity and negligence.  To get presumed or punitive damages, actual malice required.\n\nPrivate Figure, Private Concern: can recover presumed or punitive damages without proving actual malice.\n\nIntentional Infliction of Emotion Distress: cannot evade defamation requirements by suing for IIED.  Must meet standards for defamation, and no IIED for protected speech.\n\nPrivacy\n\nTruthful Reporting of Lawfully Obtained Information: no liability\n\nMedia Broadcast of Illegally Intercepted Communication: no liability if media did not participate and involves matter of public importance.\n\nGovernment Disclosure: government may limit its dissemination of information to protect privacy.\n\nAccess to Trials: right to access criminal trials, but may be limited by overriding interest articulated in findings by trial judge\n\nGovernment Employee Speech: no protection for speech on the job in performance of their duties.\n\nPlaces Available for Speech\n\nPublic Fora: places government is required to make available for speech.  Regulation permitted, but only if the regulation is (1) subject-matter and viewpoint neutral, and (2) a time, place, or manner regulation that serves an important government purpose and leaves open alternative places for communication.  Need not use least-restrictive alternative.  Cannot have discretion to set permit fees for demonstrations.  E.g., sidewalks.\n\nDesignated Public Fora: government properties that could be closed to speech but government chooses to open to speech.  Same rules as public fora.  E.g., schools after hours.\n\nLimited Public Fora: government properties that government opens only to some groups and for some topics.  Regulation permitted if reasonable and viewpoint neutral.  E.g., bus advertisements.\n\nNon-Public Fora: government properties can and does close to speech.  Regulation permitted if reasonable and viewpoint neutral.  E.g., courtrooms, military bases, areas outside prisons and jails, sidewalks on post-office property, airports (ok to prohibit solicitation of money, but not distribution of literature).\n\nPrivately Owned Property: no right.  E.g., private shopping center.\n\nFreedom of Association: Fundamental Right, Strict Scrutiny\n\nMembership in a Group: may be punished only if the defendant is (1) actively affiliated with the group, (2) knows of the group\xe2\x80\x99s activities; and (3) has the specific intent of furthering those illegal activities.\n\nLaws Requiring Disclosure of Group Membership: where disclosure would chill association, Strict Scrutiny.\n\nProhibiting Group From Discriminating: constitutional unless interfere with intimate association or expression activity.\n\nFreedom of Religion\n\nFree Exercise Clause \n\nWhat Constitutes Religious Belief?  Need not recognize supreme being nor be a traditional, major, or recognized religion, so long as belief is genuine/sincere and occupies place in life similar to regular religious belief  \n\nCannot be used to challenge a neutral law of general applicability.\n\nGovernment may not deny benefits to individuals who quit their jobs for religious reasons.\n\nEstablishment Clause\n\nSect Preference: Strict Scrutiny\n\nNo Sect Preference: law is constitutional if (1) secular purpose for the law; (2) effect neither advances nor inhibits religion; and (3) no excessive entanglement with religion.\n\nGovernment generally cannot pay teachers salaries in parochial schools, as it would then have to monitor whether they taught religion, and this would be excessive entanglement.\n\nDiscrimination Triggers Strict Scrutiny\n\nGovernment-sponsored religious activities in public schools unconstitutional.  E.g., school prayer, even if voluntary.\n\nGovernment may give aid to parochial schools so long as not actually used for religious instruction.  Government may provide vouchers that parents can use in public schools.\n\n\n\nEssay Tips\n\n\n\n1.  If question involves plaintiff seeking declaratory judgment, look to both standing and ripeness.\n\n2.  On a Commerce Clause issue, if the actor is Congress, look at its authority to act; if the actor is a state, analyze the Dormant Commerce Clause.\n\n3.  Always start by asking who the actor is: Congress, president/executive branch, federal courts, states, private individuals.\n\n4.  If a right is not fundamental, or a discrimination not subject to strict or heightened scrutiny, apply the rational basis test.  That is, if nothing else, always apply rational basis to any deprivation, burden, or differential treatment.\n\n5.  Even if a law fails because it is vague or overbroad, also discuss how it would fail under strict scrutiny.  This overlaps, and is a good way to get extra points.\n\n\n\n\nConstitutional Law Checklist Outline & Hard Sheet\n\n\n\nFederal Judicial Power: Article III\n\nCases & Controversies: Justiciability Requirements\n\n*Standing\n\nInjury: has been or imminently will be personally injured\n\nCausation & Redressability favorable court decision will remedy decision.\n\nNo 3rd Party Standing, unless\n\nClose Relationship\n\n3rd Party Unlikely to Assert Rights\n\nOrganizations on Behalf of Members: so long as individual members have standing, interest is germane to organization\xe2\x80\x99s purpose, and the individuals\xe2\x80\x99 participation is unnecessary.\n\nNo Generalized Grievances: cannot sue solely as citizen or taxpayer, but taxpayers may challenge government expenditures of money pursuant to statute as violating establishment clause.\n\nRipeness: courts analyze two factors:\n\nHardship of No Pre-Enforcement Review\n\nFitness of Record for Judicial Review \n\nMootness: dismiss, unless\n\nWrongs Capable of Repetition Yet Evading Review: must still have some chance, even remote, of happening to plaintiff.\n\nVoluntary Cessation:\n\nClass Action Suits: so long as one member has ongoing injury.\n\nPolitical Question Doctrine: courts will not address\n\nRepublican Form of Government Clause\n\nPresident\xe2\x80\x99s Conduct of Foreign Policy\n\nImpeachment & Removal Process\n\nPartisan Gerrymandering\n\nLower Federal Court Review: requires Case or Controversy, and\n\nSovereign Immunity: 11th Amendment: bars suits against state (but not local) governments, in state courts, federal agencies, and federal courts, unless\n\nExplicit Waiver\n\nStatute Under 14th Amendment \xc2\xa7 5\n\nSuit By Federal Government\n\nBankruptcy Proceedings\n\nState Officers for injunctive relief, or for personal liability.\n\nAbstention: federal courts don\xe2\x80\x99t enjoin pending state court proceedings.\n\nFederal Legislative Power\n\nSources of Congressional Authority\n\nRequires Express or Implied Authority: no general police power\n\nNecessary & Proper Clause\n\nTaxing, Spending, & Commerce Clause\n\nTax for General Welfare\n\nCommerce Clause: may regulate\n\nChannels of Interstate Commerce\n\nInstrumentalities of Interstate Commerce & Persons or Things in Interstate Commerce\n\nActivities With Substantial Effect on Interstate Commerce: intra-state activities with even minor, effect on interstate commerce.  However, in the area of non-economic activity, \xe2\x80\x9csubstantial effect\xe2\x80\x9d cannot be based on cumulative act (e.g., cannot regulate violence against women even though significant cumulative impact on economy).\n\nException: regulating guns in school zones exceed commerce clause power.\n\n14th Amendment \xc2\xa7 5: Congress cannot create new rights or expand the scope of rights, but can pass proportional & congruent laws to prevent or remedy violations of recognized rights, and laws bind state & federal government.\n\n10th Amendment Limitation: all powers not granted to federal government are reserved to the states.\n\nCongress Cannot Compel State Activity: congress cannot compel state legislative or regulatory activity.  However, Congress can induce states if conditions are (1) clearly stated, (2) not unduly coercive, and (3) related to program.  E.g., reducing federal funding for other related programs.\n\nCongress May Prohibit Harmful State Commercial Behavior\n\nCongressional Delegation of Powers\n\nNo Limit On Delegation of Own Powers\n\nLegislative Veto Unconstitutional: Congress cannot attempt to overturn an executive branch action without bicameralism and/or presentment\n\nLine Item Veto Unconstitutional: president cannot veto only part of a bill\n\nCongress Cannot Delegate Executive Power to itself or others\n\nFederal Executive Power\n\nForeign Policy\n\nTreaties: requires senate ratification\n\nSupersedes All State Laws\n\nTreaty vs. Federal Statute: most recent control\n\nExecutive Agreements: agreements between U.S. & foreign country effective when signed by countries\xe2\x80\x99 leaders\n\nMay be Used for Any Purpose\n\nExecutive Agreements Prevail Over State, But Not Federal, Law.\n\nDomestic Affairs\n\nAppointment Power\n\nPresident appoints ambassadors, federal judges, and officers of the U.S., and senate must confirm.  Congress cannot give itself this power.\n\nCongress may vest appointment of inferior officers in president, federal department heads, or lower federal courts. \n\nRemoval Power: president may fire any executive branch official unless limited by statute.  Congress can limit removal by statute if (1) independence from president is important, and (2) statute merely limits removal to good cause, but does not prohibit it altogether.\n\nImpeachment & Removal\n\nPresident, VP, federal judges, and all other officers may be impeached and removed for treason, bribery, or high crimes and misdemeanors.\n\nHouse impeaches by majority vote, then trial in senate, and removal only if convicted by 2/3 vote\n\nPresidential Civil Immunity: for civil suits for money damages for anything done in carrying out presidency, but no immunity for acts prior to taking office.\n\nExecutive Privilege: but yields to overriding need for the information.\n\nPardon Power: but no pardon for impeachment itself\n\nFederalism: limits on state and local government power\n\nPreemption: Supremacy Clause: federal law trumps state law\n\nExpress: states that it is exclusive\n\nImplied\n\nFederal & State Law Mutually Exclusive\n\nImpedes Achievement of Federal Objective\n\nCongress Evidences Clear Intent to Preempt: e.g., immigration law.\n\nState Cannot Tax or Regulate Federal Activity: state cannot put substantial burden on federal activity.\n\nDormant Commerce Clause, Privileges & Immunities Clause\n\nDefinitions\n\nDormant Commerce Clause: state law unconstitutional if it places an undue burden on interstate commerce.\n\nArt. 4 Privileges & Immunities Clause: no state may deprive a citizen of another state of the privileges and immunities it accords its own citizens.\n\n14th Amendment Privileges or Immunities Clause: no state can unduly burden U.S. citizen\xe2\x80\x99s right to travel.\n\nIf State Law Does Not Discriminate Against Out-of-Staters\n\nArt. 4 Privileges & Immunities Clause Inapplicable\n\nDormant Commerce Clause Test: violated if burden on interstate commerce outweighs benefits to state governments\n\nIf State Law Discriminates Against Out-of-Staters\n\nDormant Commerce Clause: violated unless burden on interstate commerce necessary to achieve an important state objective.  Exceptions:\n\nCongressional Approval (i.e., no more dormancy)\n\nMarket Participant Exception: state may favor own citizens in receiving benefits from state programs or doing business with state\n\nArt. 4 Privileges & Immunities Clause: discrimination permitted if necessary to achieve important government purpose.\n\nDiscrimination Must Regard Civil Liberties or Important Economic Activities: ability to hunt for sport not enough.\n\nCorporations & Aliens: cannot invoke this provision  (but can sue under Dormant Commerce Clause).  *Be careful any time a corporation is being injured by economic regulation.\n\nState Taxation of Interstate Commerce\n\nStates may not use their tax systems to help in-state businesses.\n\nState only may tax activities that have substantial nexus to the state\n\nState taxation of interstate companies must be fairly apportioned\n\nFull Faith & Credit: courts in one state must enforce judgments from other states so long as issuing court had SMJ and PJ and judgment was final and on the merits\n\nStructure of Constitutional Protections for Individual Liberties\n\nIs There Government Action?\n\nRule: Constitution applies to state, not private, action.\n\nExceptions: private conduct to which Constitution applies\n\nPublic Functions Exception: private entity performing task traditionally and exclusively done by government\n\nEntanglement: if government authorizes, encourages or facilitates private conduct, the Constitution applies.  Examples:\n\nGovernment Action\n\nCourt Enforcing Racially Restrictive Covenant\n\nGovernment Leases Office Space\n\nGovernment Provides Free Textbooks to School\n\nPrivate Entity Regulates Sports Within State\n\nNo Government Action\n\nPrivate School Despite Government Funding: government subsidy by itself is not enough for state action\n\nCollegiate Sports Decisions\n\nPrivate Club With Liquor License\n\nStatutory Constitutional Norms: Congress may enact statute pursuant to following provision to apply constitutional norms to private conduct: \n\n13th Amendment: to prohibit private race discrimination \n\nCommerce Clause: to prohibit private discrimination\n\nNO: 14th Amendment Section 5: under this section, Congress only has authority over state and local governments, not private conduct.\n\nApplication of the Bill of Rights\n\nGeneral Application: applies directly only to the federal government, but is applied to state governments through the 14th Amendment Due Process Clause.  Only 4 provisions have not yet been found to be incorporated:\n\n3rd Amendment Rights Against Quartering\n\n5th Amendment Right to Grand Jury Indictment\n\n7th Amendment Right to Civil Jury Trial\n\n8th Amendment Right Against Excessive Fines\n\nLevels of Scrutiny: a law will be upheld if:\n\nScrutiny\n\nStandard\n\nBurden\n\nStrict\n\nNecessary to achieve compelling purpose\n\nGov\xe2\x80\x99t\n\nIntermediate\n\nSubstantially related to important purpose\n\nGov\xe2\x80\x99t\n\nRational Basis\n\nRationally relates to any conceivable legitimate purpose\n\nPlaintiff\n\nProtected Individual Liberties, Rights & Property\n\nProcedural Due Process\n\nHas There Been Governmental Deprivation of Liberty or Property?\n\nLiberty: significant freedom provided by constitution or statute\n\nProperty: entitlement (reasonable expectation of continued receipt of benefit)\n\nGovernment Negligence: insufficient unless \xe2\x80\x9cshocks the conscience\xe2\x80\x9d\n\nFailure to Protect: insufficient unless custody or gov\xe2\x80\x99t creates danger\n\nIf So, What Procedures Are Required?  Balance\n\nImportance of Interest to Individual\n\nAbility of Additional Procedures to Increase Accuracy of Fact-Finding\n\nGovernment\xe2\x80\x99s Interest (typically efficiency)\n\nEconomic Liberties & Property: money, jobs\n\nGeneral Rule: Rational Basis is default for any economic deprivation\n\nTakings Clause: requires for public use + just compensation\n\nIs There A Taking?\n\nPossessory Taking: even a single inch\n\nRegulatory Taking: leaves no reasonable economically viable use\n\nProperty Development Conditions: must be justified by benefit roughly proportionate to burden imposed.\n\nProperty Owner May Challenge Pre-Purchase Regulations\n\nTemporary Denial of Development Ability not a taking if reasonable\n\nIs It For Public Use?  Yes if reasonable belief that taking will benefit public\n\nHas Just Compensation Been Paid?  Measured only by loss to owner.\n\nContracts Clause: no state may substantially impair existing contracts\n\nPrivate Contracts: Intermediate Scrutiny\n\nState Contracts: Strict Scrutiny\n\nFundamental Rights\n\nMarry\n\nProcreate\n\nContraceptives\n\n\n\nStrict Scrutiny\n\nStrict ScrutinyCustody of One\xe2\x80\x99s Children\n\nKeep (Extended) Family Together\n\nControl Children\xe2\x80\x99s Upbringing\n\nVote\n\nInterstate Travel\n\n\n\n\n\n\nScrutiny Unclear\n\nScrutiny UnclearPrivate Consensual Homosexual Activity\n\nRefuse Medical Treatment\n\n2nd Amendment Right to Gun\n\n\n\nAbortion\n\nPrior to Viability: No Undue Burden: cannot prohibit, but may regulate.\n\nViability: can prohibit abortion unless necessary to protect life or health\n\nNo Government Duty to Subsidize/Provide Facility\n\nSpousal Consent/Notification Unconstitutional\n\nParent Notice/Consent: can be required only if alternative procedure before judge.\n\n    Note: no fundamental right to education, foreign travel, practice trade, physician- \n\n    assisted suicide, and so apply rational basis.\n\n\n\n\n\n1.  Types of Classifications\n\nFacial Classification\n\nFacially Neutral But Discriminatory Impact + Intent\n\nIf neither, go straight to rational basis\n\n2.  Levels of Scrutiny\n\nStrict Scrutiny\n\n\n\nRace\n\nNational Origin\n\nAlienage (with exceptions)\n\nIntermediate Scrutiny\n\n\n\nGender\n\nNon-Marital Children\n\nUndocumented Alien Kids\n\nRational Basis Scrutiny\n\n\n\nAlienage \xe2\x80\x93 Self-Government\n\nCongr. Regulation of Aliens\n\nAge\n\nDisability\n\nWealth\n\nAll Other Classifications\n\nEqual Protection\n\nRace or National Origin: Strict Scrutiny\n\nQuotas Require Clear Proof of Past Discrimination\n\nSchool Admissions: may be factor, but cannot be point-based system\n\nPublic-School Assignment: cannot be factor unless strict scrutiny met\n\nGender: substantially relayed to exceedingly persuasive purpose\n\nGender-Role Stereotypes: even to benefit women, usually unconstitutional\n\nIf designed to remedy past discrimination, likely constitutional\n\nAlienage (non-U.S. citizens): Strict Scrutiny unless:\n\nSelf-Government/Democratic Process: Rational Basis: police officers, voting, jury service, teacher, probation officer.\n\nCongressional Discrimination: Rational Basis, plenary immigration power\n\nUndocumented Alien Kids: Intermediate Scrutiny\n\n*Equal Protection & Fundamental Rights: where action burdens a fundamental right for only a specific group, but the classification would otherwise be rational basis, apply strict scrutiny, but note that it is based on fundamental right, not classifications.  However, this is not the same as substantive due process, which applies where all are deprived of the fundamental right.\n\nFirst Amendment\n\nFree Speech Methodology\n\nContent-Based Laws: Strict Scrutiny\n\nSubject-Matter Restriction\n\nViewpoint Restriction\n\nContent-Neutral Law: Intermediate Scrutiny.  If conduct is regulated, assess Intermediate scrutiny in context of Time, Place & Manner restrictions chart.\n\nPrior Restraint: disfavored, and requires narrowly tailored measure to protect against special societal harm\n\nCourt Orders: Strict Scrutiny, but must comply until overturned\n\nLicensing/Permit Systems: ok if (1) important reason, (2) clear criteria with little discretion, and (3) procedural safeguards\n\nVagueness & Overbreadth\n\nSymbolic Speech: government may regulate conduct if (1) important interest unrelated to speech, and (2) impact no greater than necessary.  Burning flag is protected, but not draft card.\n\nCampaigns: may limit contributions to, but not expenditures\n\nAnonymous Speech: protected\n\nUnprotected & Less-Protected Speech\n\nIncitement of Illegal Activity: if substantial likelihood of imminent illegal activity.\n\nObscenity: material that (1) appeals to prurient interest, (2) is patently offensive under law at issue; and (3) lacks serious redeeming artistic, literary, political, or scientific value.\n\nZoning Ordinances OK to regulate location of adult store\n\nPrivate Possession: cannot be prohibited\n\nAsset Seizure: permitted for all assets of business violating obscenity\n\nProfane/Indecent Speech: protected unless in free media or school\n\nCommercial Speech\n\nFalse/Deceptive Advertising: unprotected\n\nTrue Ads: may be regulated if inherently risks deception\n\nRandom rules: gov\xe2\x80\x99t may prohibit professional advertising/trade names and attorney in-person solicitation for profit, but cannot prohibit same for accountant.\n\nDefamation\n\nPlaintiff\n\nLiability Standard\n\nDamages\n\nBurden of Proof\n\nPublic Official (or running for it)\n\nActual Malice\n\nCompensatory & Punitive\n\nP must prove Falsity & Actual Malice\n\nPublic Figure\n\nActual Malice\n\nCompensatory & Punitive\n\nP must prove Falsity & Actual Malice\n\nPrivate Figure, Public Concern\n\nNegligence & Actual Injury\n\nCompensatory (punitive only if Actual Malice)\n\nP must prove Falsity & Negligence\n\nPrivate Figure, Private Concern\n\nUnclear - Negligence\n\nCompensatory & Punitive\n\nBurden on D to Prove Truth\n\nPrivacy\n\nTruthful Reporting of Lawfully Obtained Information: protected\n\nMedia Broadcast of Illegally-Intercepted Communication: protected if media did not participate and concerns matter of public importance\n\nAccess to Trials: right to access criminal trials, but may be limited by overriding interest articulated in findings by trial judge\n\nGovernment-Employee Speech: no protection for speech on-the-job in performance of duties.\n\n\n\n\n\n\n\n\n\n\n\nPlaces Available for Speech\n\n\xc2\xa0\n\nSubject Matter Neutral?\n\nViewpoint Neutral?\n\nRegulation Allowed?\n\nGov't Interest Required\n\nPublic Forums (sidewalks, parks)\n\nYes\n\nYes\n\nTime, Manner, Place\n\nImportant\n\nLimited Public Forums (non-public forums that government opens to speech\n\n\n\n\n\n\n\n\n\nNon-Public Forums (military bases, courtrooms, airports)\n\nNo, need not be\n\nYes\n\nReasonable regulations\n\nLegitimate\n\nNote: if private forum, consider whether exception to state actor requirement.\n\nFreedom of Association: Fundamental Right, Strict Scrutiny\n\nMembership in Group: punishable only if defendant (1) actively affiliated, (2) knows of its illegal activities, and (3) has specific intent of furthering them.\n\nLaws Requiring Disclosure of Membership: if chills association, strict scrutiny.\n\nProhibiting Group From Discriminating: constitutional, unless interferes with intimate association or expression activity.\n\nFreedom of Religion\n\nFree Exercise Clause: cannot punish/burden religious belief\n\nWhat Constitutes Religious Belief?  Need not recognize supreme being nor be a traditional, major, or recognized religion, so long as belief is genuine/sincere and occupies place in life similar to regular religious belief\n\nRule: permissible if neutral law of general applicability, even if incidental effect.\n\nGovernment may not deny benefits to individuals who quit jobs for religious reasons.\n\nEstablishment Clause: prohibits laws respecting establishment of religion\n\nSect Preference: Strict Scrutiny\n\nNo Sect Preference: law constitutional if (1) secular purpose, (2) effect neither advances nor inhibits religion, and (3) no excessive entanglement.\n\nGovernment cannot pay teachers in parochial schools.\n\nGovernment-sponsored religious activities in schools unconstitutional, even if voluntary.\n\nGovernment may aid parochial schools so long as not used for religious purposes, and may give parents vouchers."