Uniform Bar Examination (UBE) Constitutional Law Flashcards

24 sample cards from the Constitutional Law deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. When does a regulation constitute a regulatory taking?

   A per se taking occurs when regulation denies an owner all economically viable use (Lucas) or causes permanent physical occupation (Loretto). Otherwise, courts apply the Penn Central factors: economic impact, interference with investment-backed expectations, and the character of the government action.

2. What is the 'public use' requirement for takings (Kelo v. New London)?

   Public use is broadly interpreted to mean any 'public purpose,' including economic development that provides a public benefit, even if property is transferred to a private party.

3. What is the rule on exactions/conditions on land-use permits (Nollan/Dolan)?

   A government condition requiring an owner to give up property in exchange for a permit must have an essential nexus to a legitimate state interest and be roughly proportional to the impact of the proposed development.

4. What is the Contracts Clause and what scrutiny applies?

   Article I, Section 10 bars states from passing laws that substantially impair existing contracts. For private contracts: intermediate scrutiny (reasonable and necessary to serve an important purpose). For government's own contracts: stricter review.

5. What is the rule on ex post facto laws and bills of attainder?

   Both federal and state governments are barred from passing ex post facto laws (retroactively criminalizing conduct or increasing punishment) and bills of attainder (legislative punishment of specific persons without trial).

6. What is the distinction between content-based and content-neutral speech regulations?

   Content-based regulations (targeting subject matter or viewpoint) get strict scrutiny. Content-neutral regulations get intermediate scrutiny (time, place, manner test).

7. What is the test for valid time, place, and manner restrictions in a public forum?

   The restriction must be: (1) content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels of communication.

8. What are the categories of unprotected or less-protected speech?

   Incitement to imminent lawless action, fighting words, true threats, obscenity, defamation, and certain commercial speech. Government may regulate these more freely.

9. What is the Brandenburg test for incitement?

   Speech advocating illegal action may be punished only if it is (1) directed to inciting imminent lawless action and (2) likely to produce such action.

10. What is the Miller test for obscenity?

    Material is obscene if: (1) the average person, applying contemporary community standards, finds it appeals to the prurient interest; (2) it depicts sexual conduct in a patently offensive way as defined by state law; and (3) taken as a whole, it lacks serious literary, artistic, political, or scientific value.

11. What is the test for regulating commercial speech (Central Hudson)?

    For lawful, non-misleading commercial speech, the regulation must: (1) serve a substantial government interest; (2) directly advance that interest; and (3) be narrowly tailored (not more extensive than necessary / reasonable fit).

12. What is a prior restraint and what standard governs it?

    A prior restraint stops speech before it occurs. It bears a heavy presumption of unconstitutionality and is allowed only in rare cases with a special societal harm and procedural safeguards.

13. What makes a law unconstitutionally vague or overbroad in the First Amendment context?

    A law is void for vagueness if a reasonable person cannot tell what speech is prohibited. It is overbroad if it regulates substantially more protected speech than the Constitution allows.

14. What are the three types of forums for speech and the standard for each?

    (1) Public forums (streets, parks) and designated public forums — content-neutral TPM restrictions; (2) Limited/nonpublic forums — restrictions must be viewpoint-neutral and reasonably related to a legitimate purpose.

15. What is the standard for regulating symbolic (expressive) conduct (United States v. O'Brien)?

    Regulation is valid if: (1) it is within the government's power; (2) it furthers an important government interest; (3) the interest is unrelated to suppression of speech; and (4) the burden on speech is no greater than necessary.

16. What is the standard of proof for defamation involving public officials/figures (NYT v. Sullivan)?

    Public officials and public figures must prove 'actual malice' — that the defendant made the statement with knowledge of its falsity or with reckless disregard for the truth.

17. What is the freedom of association standard for laws that punish or burden group membership?

    Laws prohibiting or punishing group membership must meet strict scrutiny. To punish membership, the person must (1) actively affiliate with the group, (2) know of its illegal aims, and (3) have specific intent to further those illegal aims.

18. What is the rule on compelled disclosure of group membership and expressive association?

    Government may not compel disclosure of membership where it would chill association unless it survives strict scrutiny. Groups have a right to exclude members when forced inclusion would impair their expressive message (Boy Scouts v. Dale).

19. Does the press have greater First Amendment rights than the general public?

    No. The press generally has no greater right of access to information than the public and is subject to generally applicable laws; it has no constitutional privilege to refuse to testify.

20. What is the test for laws under the Establishment Clause?

    Modern doctrine (Kennedy v. Bremerton) asks whether the practice is consistent with historical practices and understandings, replacing the Lemon test. Government may not coerce religious participation or establish an official religion.

21. What standard applies to laws that facially discriminate among religions or target religion?

    Sect preferences and laws targeting religious practice receive strict scrutiny — they must be necessary to serve a compelling interest.

22. What is the rule for free exercise challenges to neutral laws of general applicability (Employment Division v. Smith)?

    A neutral law of general applicability that incidentally burdens religion is subject only to rational basis review; the Free Exercise Clause does not require a religious exemption.

23. When does a law burdening religion receive strict scrutiny under the Free Exercise Clause?

    When the law is not neutral or not generally applicable — i.e., it specifically targets religious conduct or contains secular exemptions but no religious ones (Church of Lukumi).

24. Can the government exclude religious organizations from generally available public benefits?

    No. Excluding religious institutions from neutral, generally available public benefit programs solely because of their religious status violates the Free Exercise Clause (Trinity Lutheran, Carson v. Makin).

What this deck covers

Constitutional Law flashcards FAQ