Constitutional law is one of the most interesting classes in law school. Below is a cheat sheet for handling these essay questions, as well as a sample essay.
ATTACK SHEET
1. Always discuss standing whether requested or not.
has. The individual has standing if he has suffered an injury, relationship between the injury suffered and the cause of the action and the treatment of the damage through the cause of the action.
2. Then discuss the state action
has. State action is required for Amendment 14 to apply only if there is an action by a state or local government, government official, or private person whose behavior meets the requirements for state action. State action can be found when the person or entity performs exclusive public functions or has significant State participation in its activities.
3. Equal protection
has. The equal protection analysis requires a two-part facial discrimination test or facially neutral but with discriminatory intent or impact. The required level of scrutiny is then applied.
b. In assessing a violation of the equal protection clause, the court will apply one of three standards when examining government classification that discriminates against a certain group of people.
4. Privileges and immunities
has. Prohibit a state from arbitrarily discriminating against the citizens of another state.
5. Interstate Commerce
has. If a law encumbers IC, it is considered to be in violation of the DCC unless it is necessary to achieve an important governmental purpose.
b. Market Participant Exception: If the state acts as a market participant, then it is exempt.
against Latent trade clause that can be regulated or taxed IC as long as there is no discriminatory intent, balance, less burdensome and promotes a state interest.
SAMPLE TEST:
Permanent Arguments
Standing
A party will have active standing if it can demonstrate that there is actual damage, that the damage was caused by the party, and that a favorable verdict will bring a solution to the problems. Here, the party bringing the cause of action is an association representing various retailers that are affected by the ordinance. In order for ARO to present a legitimacy cause, it must demonstrate that it has associative legitimacy.
associative situation
The associative position requires a proof of (i). Members would have the right to sue independently; I (I). Related to the purpose of organizations; and (iii). Neither the claim nor the relief require the participation of individuals.
independent situation
Here, ARO can show that each of the individuals would have an independent position since their economic benefits were impaired as a result of the ordinance. The facts indicate that the ordinance “would cause hardship for store owners by depriving them of needed advertising revenue.” Therefore, each store owner would have an independent position.
german purpose
The purpose of the association is related to the interest of individuals. The ARO was “formed to protect the economic interest of its retail members” and its pursuit of the unconstitutionality of the ordinance would justify a purpose related to the protection of that interest.
Participation of Individuals
Here, members would not be required to participate in any way to benefit from the outcome of the procedure.
Therefore, ARO could establish the position through the position of a third party or an association.
state action
For a cause of action to be brought against a state, a state action will be required. Here, because the ordinance is written by the state, this element will be met.
merits of 1st amendment claim
Vague
An ordinance will be void if it is vague. Lawmakers consider vagueness to be based on a reasonable person standard, where if a reasonable person can’t understand their purpose, then they are vague. Here, the ordinance specifically states that tobacco advertising will be prohibited on “billboards, store windows, anywhere within 1,000 feet of a school, and ‘any other place where minors under the age of 18 traditionally congregate.'”
The state will surely argue that this is quite specific and therefore a reasonable person can and will understand its purpose. This argument is likely to hold, and therefore an attack for vagueness is likely to fail.
too wide
An ordinance will be void if it is too broad. Here, as they say on the ordinance is very broad in terms of what can and cannot be done. The ordinance prohibits any type of advertising through almost all commercial media. Therefore, an attack on the fact that the ordinance is too broad is likely to succeed.
Content-Based Regulation
Speech that imposes regulations based on content will be considered a violation of the 1st Amendment if the speech is considered protected speech. Protected speech being regulated based on content will require strict scrutiny analysis. Here, the regulation is not imposing a regulation on the content of the speech, but where it can be published, that is, time, form and place restrictions.
content neutral regulation
Speech that does not regulate content will be subject to time, place, and form restriction analysis.
Restriction of time, place and manner
If an ordinance prohibits speech or regulates speech based on restrictions of time, place, and manner, a two-part test will be administered, in which the party seeking to enforce the ordinance must show i. That serves a legitimate government purpose; ii. It strictly fits in with other avenues of communication that are left open.
legitimate government purpose
Here, the state will argue that the purpose of the ordinance is to prevent children from buying or being influenced to smoke. However, while this may be of great interest, it is not enough as there are other methods available to prevent it. As AOR argues, “the best way to discourage young people from smoking is by directly restricting access to tobacco and not by banning all tobacco advertising.” Therefore, although it is a legitimate purpose of the government, there are less restrictive means to carry out this initiative.
Closely adapted and other routes of communication
In this case, the nature and language of the ordinance is very oppressive in terms of its regulations and is not strictly adhered to. In addition, it does not leave any other means of communication open because it basically blocks any type of advertising.
Thus, it would fail as a restriction of time, place and manner.