Con Law II - Amann - S04B - Attack Outline

Con Law II - Amann - S04B - Attack Outline - I. EP ATTACK...

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I. EP ATTACK OUTLINE A. STATE ACTOR? 1. No, Private a. Traditional govt function: Marsh v. Alabama (company town) b. Extraordinary entanglement: Wilmington Parking Authority i. Rely on govt aid or benefits c. Extraordinary endorsement i. Shelly v. Kramer ii. Edmonson (jury selection – received authority from state) d. If these factors are met, then Private actor and state actor are joint state actors . 2. No, Feds a. Liberty/Substantive DP has EP element. Feds held to same liberty standard as states. Bolling v. Sharpe B. PRIMA FACIE SHOWING OF CLASSIFICATION IMPROPERLY TREATS SIMILARLY SITUATED INDIVIDUALS DIFFERENTLY. 1. Law may declare a facially suspect classification. If not, plaintiff can make prima facie case by showing Invidious Discriminatory Intent as a motive. 2. Dissimilar treatment occurred b/c of such intent. 3. Factors: a. Disproportionate impact on disadvantaged group b. Clear pattern of differential treatment otherwise unexplainable i. Boating case – town borders re-drawn so blacks can’t boat c. Sequence of events leading up to decision/act i. Historical events ii. Act of the legislating body: Secret meetings of city council d. Statements made at decision-making, i. I don’t like so and so ii. Court rarely allows testimony. 4. If Plaintiff succeeds, then BoP shifts to defendant to show that decision was based on neutral reason – would have been made even if the impermissible purpose had not been considered. 5. If Defendant succeeds, then BoP shifts back to plaintiff to show that the neutral reasons are really a pretext and real reason was discrimination based on impermissible basis. C. CLASSIFICATION 1. If invidious discrimination is established, is the classification Suspect or otherwise deserving of heightened scrutiny? 2. Discrete and Insular minority a. Discrete = Set apart (Highly visible characteristic) b. Insular = isolated 3. Traits considered Accident of Birth, ordinarily immutable a. Race i. Brennan would put benign racial classification in intermediate classification. Court goes there eventually but returns to strict scrutiny. b. Alienage – only in education for K-12 do noncitizens have rights c. National Origin d. 4.
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This note was uploaded on 04/05/2010 for the course LAW LAW5502 taught by Professor Stern during the Spring '10 term at Florida State College.

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Con Law II - Amann - S04B - Attack Outline - I. EP ATTACK...

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