constitutional-law-big-picture-outline.pdf - CONSTITUTIONAL LAW BIG PICTURE OUTLINE With Constitutional Law we want to ask the following three questions

constitutional-law-big-picture-outline.pdf - CONSTITUTIONAL...

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CONSTITUTIONAL LAW BIG PICTURE OUTLINE With Constitutional Law, we want to ask the following three questions: 1. WHAT POWER IS BEING EXERCISED? 2. WHO IS EXERCISING THAT POWER? 3. ARE THERE ANY CONSTITUTIONAL LIMITATIONS ON THE POWER? JUDICIAL POWER On a bar question, the power of the judiciary is usually raised through the issue of judicial review. Typically, the Bar Examiners will tell you that a party is seeking to challenge the constitutionality of a law or some government action, and then ask you to determine whether the action is properly subject to judicial review. For example, if you are told that a party is seeking to challenge the constitutionality of a state law in federal court, you should discuss whether that party has standing, and whether any other limitations in judicial review exist. STANDING à Requires that the litigant have a significant stake in the controversy and has suffered some form of injury before judicial power is properly exercised. Special rules govern whether a federal taxpayer, third parties and organizations have “standing” to sue. ABSTENTION à The federal courts should “stay its hand” or abstain temporarily as to give local or state courts the opportunity to settle underlying state law in question. ADVISORY OPINIONS à The courts will not offer advisory opinions on matters, there must be an actual case or controversy. MOOTNESS à Moot cases are dismissed whenever there is no longer an injury or stake in the controversy. a. Controversies that are capable of repetition yet evading review are not moot, even though they look like it. Cases in this category always involve disputes with an internal time limit [i.e. it does not last long enough for the case to make its way to the courts.] POLITICAL QUESTIONS à They are non-justiciable, which means they are questions that a court will not decide. RIPENESS à It requires that the harm be actual or that there is an immediate threat of harm. LEGISLATIVE POWER Legislative power is the authority to create laws granted to Congress.
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