Wendy's ConLaw Outline Spring - Purvis

Wendy's ConLaw Outline Spring - Purvis - WENDYS CONLAW...

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WENDY’S CONLAW OUTLINE SPRING page 1 of 5 Identify the regulation/statute/law/act Does the act/regulation impose a classification? YES → Equal Protection What is the basis for the classification? Suspect/Quasi-suspect class analysis → STRICT SCRUTINY / MID - LEVEL / RATIONAL BASIS Does the regulation also adversely affect a Fundamental Right? YES Does the Fundamental Right have its own jurisprudence? STRICT SCRUTINY / MID - LEVEL / RATIONAL BASIS / UNCONSTITUTIONAL NO → done NO → Fundamental Right Identify the Fundamental Right and Standard of Review STRICT SCRUTINY / MID - LEVEL / RATIONAL BASIS / UNCONSTITUTIONAL Has there been a substantially adverse effect or undue burden on the right? Identify the government interest Apply the Standard of Review (this incorporates the government interest answer) If Freedom of Speech, is the act vague and/or is there viewpoint discrimination? Vagueness / Overbroad FUNDAMENTAL RIGHTS A regulation that infringes on a fundamental right generally must withstand STRICT SCRUTINY . If it is not a fundamental right, the regulation need only withstand RATIONAL BASIS . ISSUE: Is a fundamental right involved and if so, what is the Standard of Review? It is a FUNDAMENTAL RIGHT if: It is implicit in the concept of “ordered liberty”: People would not feel free with it absent It is deeply rooted in history and tradition (continuous regulation is not required, just regulation dependent on a community’s will) Courts have deemed it a fundamental right π can formulate C ANDIDATE H UMAN I NTERESTS at both extremes: specific/concrete and abstract/general When it’s not yet determined to be a FR and the π is proposing it to be so (Statute prohibits aiding suicide. Specific: right to kill person because he asked. Abstract: right to assist dying person to end his pain as he is unable to do so himself.) E DUCATION is NOT a fundamental right MARRY, PER THE PREVAILING DEFINITION OF MARRIAGE PROCREATE CONTRACEPTIVES ABORTION GOVERNMENT FUNDING of abortion is NOT a fundamental right PARENTAL CARE, CONTROL, AND CUSTODY OF CHILDREN LIVE WITH RELATIVES TRAVEL SEE EQUAL PROTECTION SECTION FREEDOM OF EXPRESSION/SPEECH 1st A provides Freedom of Expression. H IGH L EVEL : STRICT SCRUTINY - When a regulation is “content-based,” there is a threat of government suppression of speech ( C HILLING E FFECT ) and STRICT SCRUTINY is applied--unless the speech falls under a category allowing a MID - LEVEL or RATIONAL BASIS to be applied. There also must not be a problem with vagueness, overbreadth, or viewpoint discrimination. Prior Restraint is a content-based order not to speak new speech w/o permission → presumed UNCONSTITUTIONAL : SUPER - STRICT SCRUTINY Prompt Judicial Adversarial hearing, where The Government has the burden (this is the super-strict scrutiny part) The decision must be rendered promptly E XCEPTIONS A court order--later determined unconstitutional--is violated but there is no punishment if, by seeking a judicial review of the injunction, one
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Wendy's ConLaw Outline Spring - Purvis - WENDYS CONLAW...

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