110416462-Con-Law-Checklist.doc

110416462-Con-Law-Checklist.doc - CON LAW THE BASICS For...

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CON LAW THE BASICS For every argument consider: Formalism : strict categories provided in C. 1. Text of Constitution Functionalism - practical effects of something 2. History 3. Structure - separation of powers/federalism 4. Precedent 5. Prudential/other values - natural law Limitations of Judicial Review 1. Limited SMJ of federal courts. 2. Need statutory right and constitutional right to go before federal court 3. Courts may only review constitutionality of executive and legislative acts . a. Courts may NOT review uses of political discretionary authority 4. Congress cannot increase the Supreme Court = s original jurisdiction. Sup. Ct. can review Sup. Ct. cannot review executive acts Merely discretionary acts legislative acts Cannot issue advisory opinions state court decisions Political question cases state court law If there is no standing, ripeness or actions of state officials Mootness For every single statute consider : Federal - first look at whether Congress had the authority to act (either expressly or impliedly), then ask whether the act violates any other provision of the Constitution. State - ask if legislation is constitutional. Separation of Powers versus check and balances Separation of powers - preserves idea of independent branches of government - none are subservient to the other branches. Check and Balances - allows branches to serve as a check or limitation on the other branches. Goals of SOP/Checks and balances 1. Efficiency - someone needed to be in control. 2. Preventing tyranny - equality before the law, no arbitrariness. Separation takes power from those who make the law and enforce the law. The law applies to the legislators. Justiciability Doctrine - Limitations on jurisdiction of federal courts 1
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Prohibition against advisory opinions 1. Federal courts are forbidden from issuing advisory opinions on the constitutionality of legislative or executive acts that do not arise out of a case or controversy . Such a power would enable executive and legislative officials to obtain authoritative jmts on constitutional issues before relevant actions are taken. 2. Requirements - (1) must be an actual dispute between adverse litigants and (2) there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect. Requirement of Standing - ( Lujan factors) 1. must have suffered some injury in fact which is concrete and particularized and actual or imminent , not conjectural or hypothetical 2. There must be a causal connection between the injury and the conduct - cannot be independent action of some third party 3. It must be likely that the injury will be redressed by a favorable decision. 4. Need to have proper plaintiff . 5. Alternative - merits based standing 1. Standing depends on whether the particular legal provision at issue gives a right to this plaintiff. Look at whether the legislature intended to give an enforceable right to this plaintiff. Gives more power to Congress because Congress creates laws and determines who can sue.
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  • Fall '09
  • Steiker
  • Separation of Powers

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