good con law outline

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This is a constitutional law outline for Northwestern Law School. Apparently it is one of the best, as many people have used it before.


JUDICIAL REVIEWExclusive SCOTUS ability to (1) Interp. Constn; (2) Invalidate laws by Cong (legisv) or axns by Pres (execv) repugnant to ConstnJudicial Review in Constn! However . . . 1. Art. III, 2: Judicial Power (limited, original jdxn) Over cases + controversies: Arising under the Constn, laws, treaties of U.S. Admiralty & Maritime jxdn When U.S. = party Bw 2+ states Bw a state and citizens of another state Bw citizens of different states Bw citz of same state claiming lands under grants of diff. states Bw a state/its citz, and foreign states, citz, subjects2. Art. VI, 2: Supremacy ClauseThis Constn [ Art. Confed.], and the Laws of the U.S. [federal] which shall be made in Pursuance thereof [made accord. to Constn]; and all Treaties made [still binding], or which shall be made, under the Authority of the U.S., shall be the supreme Law of the Land [over what? STATE LAWS]; and the Judges in every State shall be bound thereby, any Thing in the Constn or Laws of any State to the Contrary notwithstanding.3. Marbury MAJOR versus Marbury MINOR/MODEST: Is Constn supreme law? Courts exclusive/ultimate interprs of Constn?BROADNARROW

M regards the courts as having special competence to interp. law EXCLUSIVE interprs Hamiltons #78: If actually deciding constty of exec + leg then actually pwr (puppet strings over sword + purse) Exercise jgmt will (Jgs = robots) Judiciary = shield of Constn, to block legisr passing unconstl laws Marshall wrote Constn is a rule for the govt of courts as well as the legr Judl rev as BYPRODUCT of SCOTUS duty to decide cases in accord. w/ Constn (system has two levels of law: statry + constl) Unclear why SCOTUS interps binding o/s 4 corners of ctrm

4. POLICY: Why entrust Constn to Judiciary? Least dangerous branch; politicized or involved in legn Restraints: Justiciability, Art. IIIs internal limitns, Congress SOP; each branch has its own duties Efficiency; Dangers of Judl Rev? WHO WATCHES THE WATCHMEN Counter Majoritarianism, judl activism, lifetime tenure Fedst Pprs #78: Cts enforcing ppls will ctr-majn, judl activismREVIEW ACTS OF CONGRESS: Combine cases + controversies clause, Supremacy clause, Marbury SCOTUS has judl review over Congl acts + to declare them void for contravention of Constn.Marbury v. Madison (1803, Marshall) (Horizontal uniformity) It is emphatically the province and duty of the judl dept. to say what the law is. Strikes down a congl law extending additl power for SCOTUS to hear cases involving execv officers (re: Mandamus); BUT execv and legv branch have discretion (Exec. acting as Exec, etc . . . ) Art. III is exclusive/exhausting, or else meaningless (expresio unius); provides origl jxdn to SCOTUS in limited circs + appellate jxdn for all others If Cong were to interp. Constn, fox in hen house; too much powerREVIEW STATE COURT DECISIONSMartin v. Hunters Lessee (1816, Story) (Vertical uniformity) Issue: VA accept SCOTUS interp of U.S. Treaty (attempt at vertical deptsm) SCOTUS has final rev over state holdings based on fedl law/Constl issues, upheld Judiciary Act of 1789 25 Need Vertical Judl Review!1. Uniformity of laws (ex: have a treaty interpd 50 diff ways in 50 states)2. Avoid state jealousies/biased interests (Marshall asserts state courts capable of dealing with fedl Constl issues w/o being swayed by politics)3. Art. IIIs in all other cases before mentioned the SC shall have appellate jdxn (nature of the CASE not the court system) Cong. estd SCOTUS but other fedl cts; if hear state cases, what is it meant to hear?4. Entitles s power of removal to Fedl Ct (fairness/rights!)Cohens v. VA (1821, Marshall) Issue: brothers in VA sold DC lottery tix in violation of VA law (jdxn question) SCOTUS sustained 25 jdxn to review validity of state laws in criminal proceedings that have fedl Constl elementsLEGAL PRINCIPLES: SUPREMACY CLAUSE + BINDING O/S CT ROOMCooper v. Aaron (1958, Warren) Issue: School board in Little Rock AK postpones legally mandated desegn (response to Brown v. Board) b/c turmoil States must follow SCOTUS decisions; What SCOTUS decides lmtd to facts of a single case; obligate decs of other branches (Pres can pardon/veto) Big Marbury! SCOTUS as exclusive interpr of Constn, and SCOTUS decisions binding But! Lincoln/Dred Scott (binding on that case, not every case like it) Little Marbury in that what SCOTUS decides for a particular case is supreme law for those particular parties, but if SCOTUS creates law to rule people as a whole via one case b/w two parties, that is overextension of SCOTUS power

1Tension!Broad/Narrow BrownBig/Little MarburyN+PLevel of GENERALITYStates Ints + [Narrow] Tailoring for CAsStandard of Review?Formal/Function SOP

LIMITATIONS ON SCOTUS: POLICY + SUMMARYPOLITICAL RESTRAINTS Art. II 2 cl.2 Judl Selection: Exec. Appoints, Senate confirms Art. III 1, Art. II 4 Behavior/Impeachment: Justices apptd to hold Offices during good behavior (life tenure); Impeachable for treason, bribery, high crimes & misdemeanors Packing/Budgets Art. III 2 Jdxn Stripping: Cong can make exceptions to app. jdxn Legv overriding of Statutory Interps Art. II 2 cl.1 Pardon Power Vetos of Constl Legn Art. V Constl Amendments: either/or 2/3 Congl vote to propose amdmt, Ratifn by 3/4 states 2/3 states apply to Cong to call Constl Convention

JUSTICIABILITY SCOTUS self-imposed limitation, cases + controversies of Art. III 2 Judicially created doctrines define/limit circs under which Art. III fedl ct may exercise Constl authority. Why? Broadly, concerned w/ SOP Conserve Judl Resources Judl Efficiency (prevent ideoll suits, limit cts pltcl activity) Improve Judl Decision-making Promote Fairness Adversaries bring out the FACTS Policy AGAINST: burdening courts ability to adjudicate RIGHTS by keeping out cases that need justice!

ADVISORY OPINIONS Will not comment until there is a case, between parties. No moot cases, collusive cases, theoretical cases Even though an advisory opinion would not be binding, SCOTUS will not issue legal advise to execv, legv branch due to unintended consequences. (SCOTUS make law!) Not advisory if:1. Actual dispute b/w adverse parties/litigants2. Substl likelihood that decision will bring change/FXWho: StandingSCOTUS will not hear constl challenge unless person challenging the law meets Standing reqts Art. III 2: extends judl pwr to all cases in law and equity, but not all questions in law; restrictions promote fairness + check SOP Need1. Injury in-fact Real, imminent; probable, general2. Causation Burden of proof on Harm must be fairly traceable to s axn3. Redressability Overlaps w/ causation; Connection b/w alleged injury and judl relief reqd; Must be likely speculative that injury redressed by favorable decision; Partial redress may be sufficientPrudential Standing DoctrineGoes above and beyond case + controversy reqts, based on prudential fedsm and SOP notions1. Third-Party ( must assert own interests)2. Generalized Grievances (no abstract question of pub. sig.)3. Zone of Interest (s complaint must fall within ZOI protected/regd by statute or Constl guarantee in question)What: Political QuestionExists if (1) There is a textually demonstrable commitment of the issue to another branch; OR (2) a lack of judly manageable standards (inherently incapable of resolution by judicial process) Baker Six Factor Test:1. Textually demonstrable commitment (in Constn)?2. Lack of judicially discoverable/manageable standards3. Turns on POLICY DECISION?4. Unusual need for adherence to already made political decision?5. Potential for embarrassment from different branches saying diff. things?6. Disrespect for another political branch (foreign policy, step on s/os toes)? When: Mootness/Ripeness Mootness: its too late to bring the case; must be an actual controversy at all stages of trial (under Big Marbury, matter b/c clear issue to adjudicate) EXCEPTION: Capable of Repetition but Evading ReviewReasonable expectation that same will be subj. to same axn again + resolve issue b/c of short duration of axn (ex: Pregnancy Roe) Ripeness: Its too early to bring the case; seeking anticipatory relief

JUSTICIABILITY: THE WHOSTANDINGART. III 2 Cases + Controversies; Subj-matter Jdxn1. Injury In-Fact: Concrete + Particularized; Actual or Imminent Specifically: physical bodily injury, financial harm; Broadly: Vote dilution, loss of opp to participate in racially neutral procedureLujan v. Defenders of Wildlife (1992, Scalia) FACTS: Enviro group suing over lack of adherence to the ESA; claimed physical injury by # dangered species (elephant/leopard habitat) SCOTUS says imminent harm ( give time frame for total of habitat) + too general (hurts everyone equally special harm); s essentially challenging policy FX Congl Conferral of Standing: Cong created citz suit in stat itselfIf clearly o/s Art III judl pwr, Cong create it; b/c Cong get around other Constl provns by statute, shouldnt be able to here; SOPLegr decides what law is absent individualized case (standing essentially); Judl make law! To make decn absent standing judry is making law; TOO BROAD MARBURY Private attny genl in conflict w/ Pres attny genl if create a right to such a thing, youre creating the rt to challenge Pres ability to do his job Konto ex: W tries to enforce contempt order (DAs discretion) of exBF who pay ch supp; enforcing supp if allowed, overburden DA On the other hand . . . If s/t harming entire country, shouldnt SCOTUS address? If hurts everyone in general, shouldnt legr address? Legr deals with whole sale issues; judry a/b retail issues Legr already created this law what suppd to do now? (amend ESA to impose stricter sanctions . . . ?) spending time/money on prepng this litigation must actually be injured?Massachusetts v. EPA (2007, Stevens) FACTS: global temps CO2 Group of states, local govts, priv. orgs. allege EPA abdicated responsty under Clean Air Act to reg e