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CONSTITUTIONAL LAW
MODULE 1: INTRODUCTION
- Con law questions can be broken up into 2 issues:
1. Does the government have the power to act?
a. Federal gov’t can act only when it has express authority but state local
gov’t can do anything (unless limited by Constitution)
i. No general authority of Congress to act either must point to
provision in Const
ii. Federal court can hear a case if there’s both statutory &
constitutional authority
1. State & local governments have the police power
can do anything EXCEPT for what’s forbidden by
Constitution
2. Congress & Federal gov’t LACK the police power
2. Has the government violated a limit on its authority?
a. All gov’ts at all levels are constrained by the Constitution
constrains take many forms
i. Rights in Cons are limits on gov’t (ex: First Amendment)
ii. Government at any level cannot take away life, liberty, or
property; can’t deny person of equal protection
- Since state law is independent from federal law, there can be no supreme court review
- Lower federal court review
A. Federal courts and state courts cannot hear suits against state governments
Principle of sovereign immunity – the Eleventh Amendment bars suits
against state governments in federal courts – it doesn’t matter if π is a
citizen of this state or that state a state government CANNOT be named
a ∆ in a federal suit
Sovereign immunity prevents suits against state governments in
state courts or federal agencies (Alden v. Maine)
o Probation officers claimed they were owed $ from the state
under Fair Labor Standards Act – fed. Ct dismissed on 11th
Amendment but SCOTUS said state gov has sovereign
immunity
Exceptions to sovereign immunity (state gov can be named as ∆)
o Waiver: state may waive SI and consent to be sued but
waiver must be explicit (no implied waiver of SI)
o May be sued pursuant to federal statutes adopted by
Congress in § 5 of the 14th Amendment but Congress
cannot override SI any other powers
o Fed gov may sue state government – SI no bar to fed gov
suing state gov
o State gov cannot assert SI as a defense in bankruptcy
proceedings.
State officers may be sued – can be sued for injunctive relief
- Federal legislative power – Art I of Constitution defines power of Congress
A. Congress may act only if there’s expressed/implied authority – state and local
government possess the police power (their power to do anything except what’s
prohibited by the Constitution)
Congress lacks the police power
B. Necessary & Proper Clause: Found in Article I, § 8 – Congress can take all acts
that are necessary & proper to carry out its authority
McCulloch v. Maryland: Congress may choose any means not prohibited
by the Constitution to carry out its lawful authority
C. Taxing, Spending, & Commerce Clause Powers – Article I, § 8
Tax & Spend: Congress may tax and spend for the general welfare – may
create any tax raise revenue and any spending program to expend it that
Congress believes will expend the general welfare
NFIB: ACA (individual mandate) said that every American had to
purchase health insurance of pay a tax. SCOTUS (5-4) – the
individual mandate was an exercise of the taxing power; Congress
has broad power to tax for the general welfare
Commerce Clause: Congress has power to regulate commerce
1937-1995 broadly defined the scope of the commerce clause b/c
not one cause was ruled unconstitutional
o United States v. Lopez (1995) involved fed criminal state
(Gun Free School Zone Act) – SCOTUS declared this law
unconstitutional & exceed the commerce power b/c guns
near schools have too attenuated relationships to allow
Congress to regulate. Congress can act under commerce
clause:
Congress can regulate the channels of interstate
commerce
Places where commerce occurs (highways,
waterways, internet)
Congress can regulate the instrumentalities of
interstate commerce and persons/things in interstate
commerce
Instrumentalities: things that facilitate
commerce (props, planes, internet)
Persons/things: – commerce refers to all
forms of intercourse (electricity, radio
waves, cattle, people if they go against
state lines) [Gibbons]
Congress may regulate activities that have a
substantial effect on interstate commerce
Wickard v. Filburn: Congress adopted a law
limiting the amount of wheat a farmer can
grow for his own consumption. Farmer said
this exceeds the scope of the Constitution.
Congress looked at all the wheat of all the
farmers similarly situated (aggregate), there
was a substantial economic effect
Gonzales v. Raich: Congress
constitutionally can criminally prohibit the
cultivation and possession of marijuana for
medicinal and personal use. Marijuana (like
wheat) is sold in interstate commerce.
Producing a crop that’s sold in interstate
commerce is economic activity.
o When it comes to regulating
noneconomic activity, substantial
effect cannot be based on cumulative
impact (United States v. Morrison)
Congress can regulate economic activity but cannot
regulate inactivity (5 justices said this)
NFIB
10th Amendment: all powers not granted to the United States nor
prohibited to the States are reserved to the States and the people
respectively.
Congress cannot compel state legislative or regulatory activity –
for Congress to do so violates the 10th Amendment
o New York v. United States: SCOTUS declared law
unconstitutional
o Printz v. United States: Congress was commandeering the
States and this violates the 10th Amendment
CONGRESS CANNOT COMEPL STATE
REGULATORY ACTIVITY
Congress can try to induce states to act with grants so long as
they’re clearly stated, related to the purpose of the program, and so
long as they’re not unduly coercive.
o South Dakota v. Dole: Congress was seeking to induce the
state government to act using grants.
o NFIB
Congress may prohibit harmful commercial activity by state
government
o Reno v. Conditt: involved federal drivers privacy protection
act – State dept of motor vehicles cannot release personal
information on individuals – SCOTUS upheld law.
Congress here was not imposing burden on states; Congress
was prohibiting activity – the law was constitional b/c
Congress was prohibiting harmful commercial activity by
the states
§ 5 of the 14 Amendment – authorizes Congress to adopt laws to enforce
th
- Preemption:
A. Art. VI contains the Supremacy Clause which says the Constitution is the
Supreme Law of the Land; if conflict fed law v. state law state/local law is
deemed preempted
B. Can be found in any one of 3 ways:
Express preemption: if fed statute explicitly says that fed law is exclusive
in a field, then state/local laws are deemed preempted
Anytime Congress has authority to act, Congress in a statute can
say fed law is exclusive & state/local laws are preempted
Implied preemption: even if fed statute is silent, implied preemption can
be found by:
a. If fed law & state law are mutually exclusive, state law is
deemed preempted (conflicts preemption)
o If not possible to simultaneously comply w/ both, state law
is deemed preemption
o States can set stricter environmental and safety standards
than fed gov & fed gov has to follow this. Not deemed
conflict when state sets stricter standards states can
provide more rights under their rights
b. if state or local law impedes the achievement of fed objective,
state/local law is deemed preempted (objects preemption)
c. If Congress evidences a clear intent to preempt state/local laws,
state/local laws are deemed preempted (field preemption)
States cannot tax or regulate federal gov activity *
McCulloch v. Maryland: SCOTUS declared unconstitutional fed
tax on Bank of US power of tax is power to destroy; if states
could tax fed gov might tax it out of existence
o Unconstitutional to pay state tax out of federal treasury
States cannot regulate fed gov – it would be placing substantial
burden on federal activity
- Dormant Commerce Clause & Privilege & Immunities Clause in Article IV:
A. Dormant Commerce Clause: principal that state & local laws are unconstitutional
if they place an undue burden on interstate commerce
No provision in Constitution that says this SCOTUS has inferred it in
grant of power to Congress to regulate commerce in states
If Congress has not acted, commerce power lies dormant;
nonetheless, state law is found unconstitutional if it places undue
burden on interstate commerce
Two distinct meanings to commerce clause:
Authority for Congress to act
Limit on what state/local gov’s can do (DCC**)
How to know which to apply? Always focus on WHO IS THE
ACTOR in the Q …
If Congress is doing something, does it fit within Congress’s
power? commerce clause
Or is it a challenge of what a state/local gov has done? dormant
Commerce Clause
B. Privileges & Immunities Clause of Article IV: no state may deprive citizens of
other states of privileges & immunities it accords its own citizens
Has Antidiscrimination provision: limits ability of state/local gov
to discriminate against out-of-staters with regard to privileges and
immunities
Does state/local law discriminate against out-of-staters, or does it
treat in-staters and out-of-staters alike?
o Always start by asking this question
State govs try to help citizens of their own state at the expense of
citizens of other states adopt laws that discriminate
Phil v. NJ: NJ adopted law that no out of state garbage can be
buried in NJ landfills – obviously discriminated against out-of-
staters; SCOTUS found it violated SCC
Whenever you see Q about DCC or P&I clause, always focus on
question ^^
If state or local gov does not discriminate:
P&I Clause of Article IV does not apply – if not discriminatory
against out-of-staters
If state/local law puts burden on interstate commerce, it violates DCC
if the burdens on interstate commerce outweigh the benefits in the law
Even if law is not discriminatory but puts burden, it violates DCC
Weigh burdens of interstate commerce v. benefits of the law
o Ex: IL adopted a law that all trucks have curved mudflaps
but other states allowed straight mudcaps; SCOTUS
declared law unconstitutional – put substantial burden on
interstate commerce
Would have to avoid IL or stop at border; no benefit
of different mud flaps.
If it discriminates against out-of-staters:
If law puts burden on interstate commerce, it violates DCC unless
it’s necessary to achieve a very important gov purpose
o SCOTUS said there’s a strong presumption against state
laws that discriminate against out-of-staters & put burden
on interstate commerce; can only be upheld if show that
very important interest to be served
State will have to show law is necessary to achieve
objective & no less discriminatory alternative can
achieve this goal
o Maine v. Taylor: Maine adopted law that prohibited
importing out-of-state baitfish; state concerned that fish
might carry parasites that might kill fish in Maine; while
Maine law was discriminatory, it was constitution. Maine
had interest to protecting their fish & no alternative to
achieve this goal.
Exception: law that would otherwise violate DCC is
upheld
Congressional approval: if Congress has
approved the state law, it is then permissible
even if it would otherwise violate the DCC
o Once Congress has acted, commerce
power is no longer dormant; so if
Congress has approved the action, it
is then permissible under DCC.
Market-Participant Exception: state/local
gov may favor its own citizens in receiving
benefits from gov programs when dealing w/
gov owned businesses
o UC can charge less in tuition to in-
state than out-of-state residents;
doesn’t violate DCC b/c of M-P
UC is regarded as gov benefit
program; state can prefer its own
citizens who have been paying
taxing to support program over those
who have not
o SD owned a cement factory &
charged more to out-of-state
purchasers of cement than in-state;
Court said this was a gov owned &
operated business; gov was M-P
justified exception under DCC
If state/local gov discriminates against out-of-staters with regard to the
ability to earn a living, it violates the P&I Clause of Article IV (applies
only when discrimination against out-of-staters) unless it’s necessary to
achieve substantial gov interest.
There must be discrimination against out-of-staters
Discrimination must be w/ regard to fundamental rights or the
ability to earn one’s livelihood
If π is a corporation challenging a state/local law, use ONLY the
DCC in analysis
If π is a citizen, then consider both DCC & P&I Clause
Discrimination will be allowed only if it’s necessary to achieve substantial
gov interest
Means have to be necessary (necessary no less restrictive
alternative can reach its objective)
C. Privileges or Immunities Clause of 14th Amendment: been used only by
SCOTUS to protect the right to interstate travel.
This clause says no state may deprive any citizen of US of privileges or
immunities of US citizenship. Fed courts cannot use P/I clause to strike
down local laws
PROPERTY
Easements: the grant of a nonpossessory interest that entitles its holder to some limited use or
enjoyment of another’s land called the servient tenement
- Ex: right to lay utlity lines on another’s lands, the easement giving its holder the right of
way across a tract of land, etc.
- Easements can be affirmative or negative
A. Most are AFFIRMATIVE the right to do something on servient land – called
the servient tenement
B. Can also be NEGATIVE entitles its holder to compel the servient donor to
refrain from doing something that otherwise but for the negative easement would
be permissible
Are permitted in only four settings: (LASS)
Light
Air
o Refrain servient donor that would interrupt or impede
parcel’s access to air flow
Support
o Refrain from excavating/digging on parcel that would work
to detriment for support
Stream water from an artificial flow
Minority states: scenic view
C. NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY no
explicit or automatic right to negative easements
Must be created by signed writing
- Easements are either appurtenant to land or held in gross
A. Appurtenant: when it benefits its holder of the easement in his physical use &
enjoyment of his property
“it takes two” two parcels must be involved: a dominant tenement
derives the benefit of the easement; servient tenement suffers the burden
of the easement
(1) A grants (2) B a right of way across A’s land so that B can more easily
reach his land
Two parcels are involved; A’s land is serving B’s easement
[servient tenement] – B’s land is deriving a benefit thanks to the
easement [dominant tenement] B has an easement appurtenant
to B’s dominant tenement
o Allows B to derive a benefit gained or advantage of B’s use
& enjoyment of B’s own land
B. In gross: confers upon its holder only a personal/financial commercial benefit (not
linked to easement holders use or enjoyment of any or his own land)
Right to place billboard on another’s lot
Right to swim in another’s pond
Right to lay power lines on another’s land
Servient land is burdened in all examples, but there is no dominant
tenement; only one parcel is involved servient land
- Easement appurtenant passes automatically with the dominant tenement; burden of
easement appurtenant will pass with the servient land, unless the new owner is a bonified
purchaser without notice
A. Even burden will pass automatically with the servient land
- Easements in gross are not transferable unless they are for commercial purposes
A. Ex: A has right to swim in B’s pond easement in gross; only 1 parcel
These are considered personal to their holder so not transferable
B. Commercial easements in gross are assignable (for business purposes)
- Scope of easement is set by terms or conditions that created it cannot be any unilateral
expansion of an easement to benefit a non-dominant parcel
A. Unilateral expansion of easement is not allowed – technically, asking how to
create affirmative easements mindful that negative easements can only be
created EXPRESSLY by express grant
B. Affirmative easements can be created in any 1 of 4 ways: (PING)
Prescription
May be acquired by the elements of AP – COAH (Continuous use
for the given statutory period that is open & notorious use, actual
entry that need not be exclusive, with hostile use [without the
servient owner’s consent])
o A cuts across B’s front lawn to get across to B’s parcel;
suppose B makes continuous habit of that use for the
statutory period & it’s open and notorious (visible)
Implication (easement implied from prior use)
Court will imply easement on behalf of a pattern of preexisting use
if the use/easement is apparent & if easement’s continuation is
reasonably necessary to the dominant land’s use & enjoyment
Necessity
Whenever grantor conveys his land without no way out except
over some part of the grantor’s remaining land
o Ex: A owns 100 acres & conveys 2 acres to B. B is in the
middle of the remaining 98 acres. Court will not abide a
landlocked situation – will imply an easement of necessity
over some necessity of the grantor’s remaining acres
Grant
Easement to endure for 1+ year must be in writing that complies
with the formal elements of a deed – writing to create easement is
called deed of easement
o Need for writing requirement is linked to Statute of Frauds
- License: mere privilege to enter another’s land for some delineated purpose
A. Are not subject to the statute of fraud – very informal; don’t need writing to create
a license can be created orally
B. Licenses are freely revocable at the will of the licensor unless estoppel applies
to bar revocation
Estoppel applies to bar revocation only when the licensee has invested
substantial money or labor, or both in reasonable reliance on the licenses’
continuation
- Applies when:
A. “Ticket cases:” tickets create freely revocable licenses
B. “Neighbors talking by the fence” suppose neighbor A is talking by the fence
w/ neighbor B and says you can have that right of way across my property; this
easement is unenforceable & violates the statute of frauds creates a freely
revocable license
Profit: the profit gives its holder the right to enter servient land and take from it the soil or some
natural resource
- Profit shares all the rules of easements but don’t call this entitlement call it a profit and
then apply all you know about easements
Covenants: starts off as a contract regarding land; covenants can be restrictive (negative) or
affirmative; most are called restrictive covenants
- Restrictive covenants: promise to refrain from doing something related to land (obliging
maker from doing something related to land)
A. Ex: “I promise not to build for commercial purposes on my land;” “I promise not
to post for sale sign;” “I promise not to maintain a petting zoo”
B. The covenant had to be born because of the property law instance that negative
easements be so negative in scope (LASS)
Negative easements would not allow neighboring landowners to restrict
their easements more broadly
- Affirmative covenants: promise to do something related to land
A. Ex: “I promise to maintain our common fence”
Equitable Servitudes (in equity) v. Covenants (at law): look for the relief you’re seeking
when π wants money damages to be made whole as a consequence of ∆’s betrayal of the
servitude, THIS IS A COVENANT; when π wants an injunction construed in equity, THIS IS
EQUITABLE SERVITUDE – “π seeks to enjoin ∆ from doing x, y, and z.”
- When asked to construe promise as covenant, prepare to answer when will this covenant
run with the land at law? When capable of binding successors to the originally promising
parties
A. Neighbor A promises neighbor B that A won’t build for commercial purposes on
A’s land (these are the originally promising/covenanting parties). A then sells her
burdened parcel to A1 A & A1. B sells benefitted parcel to B1. A1 is now
commencing manufacture of a plant. B1 wants to sue A1 for money damages, for
A1’s alleged betrayal of A’s promise to B. Will B1 succeed?
A’s parcel is burdened by the promise & B’s promise is benefited by the
promise
IT DEPENDS if whether the burden of original promise runs
from A to A1 and the benefit of A’s original promise runs from B
to B1 – DOES THE BURDEN OF A’S ORIGINAL PROMISE
RUN WITH THE LAND FROM A TO A1? Are subsequent
owners subject to this limitation?
o For a burden to run with the land at law, follow WITHN
(Does burden of A’s promise to B from A to A1?)
Writing original promise had to be in writing
Intent original parties (A&B) intended that the
burden would run
Touch & concern promise affects parties as
landowners; when it is relevant/pertaining to the
parties as landowners & not simply as citizens at
large
Horizontal and vertical privity: BOTH needed for
burden to succeed in running from A to A1
Horizontal: from A to B (originally
conventing parties); Requires they be in
succession of estate
o At the time A made promise not to
build to B, A and B were in grantor-
grantee relationship visive each
other; also satisfied if A & B are in a
landlord-tenant relationship; also
satisfied if A & B are each other’s
debtor-predator
o Difficult to establish; likely absence
tends to be sticking point
o When there is horizontal privity, it
means A & B were in grantor-
grantee relationship when the
original promise was made.
Vertical: from A to A1; demands non-hostile
nexus between A & A1 comes from
contract, deed, familial relationship, devise
from will
o Will be absent if A1 acquired interest
through AP AP is hostile to A
Notice A1 must have had notice of that promise
when she took
o If facts can sustain conclusion that all those WITHIN
elements have been met & these are successful in binding
the successor A1, if B1 wants to sue A1 for money
damages for A1’s violation, you need to get to second
inquiry DOES THE BENEFIT FROM A’S
PROMISE TO B RUN FROM B TO B1? (WITV)
Writing original promise in writing
Intent original promisee intends the promise
would run
Touch & concern
Vertical privity non-hostile nexus between B and
B1
MODULE 6: CONVEYANCING
Deed
- To pass title, must be: (LEaD)
A. Lawfully executed, and
Must be in writing, signed by the grantor; must reasonably describe the
property
Does not need to recite consideration, doesn’t need to have to pass
for valid deed
Description requires only unambiguous description
B. Delivered
Delivery standard could be met when grantor physically or manually
delivers the deed
However, delivery of a deed DOES NOT require ACTUAL, PHYSICAL
TRANSFER of the deed instrument itself
Standard of delivery is a legal standard, not an actual standard.
Grantor must show the present intent to be immediately bound. If
grantor does this, delivery has been accomplished as a legal matter
o Exception: Recipients express rejection of the deed defeats
delivery (e.g. I can’t accept such an expensive gift = NO
delivery)
- If a deed absolute on its face & is transferred to the grantee with an oral condition, the
oral condition is dropped out it’s void/unenforceable
- Delivery by escrow is permissible; grantor may deliver an executed deed by a third party
(escrow agent) w/ instructions that deed delivered to grantee when x conditions are met.
When conditions are met, the title is transferred automatically.
A. Why? B/c grantor doesn’t have to be present/alive to ensure that title is passed
Doesn’t matter if grantor is dead, incompetent, or unavailable before
condition is met
- 3 types of deed:
A. 1. Quitclaim: contains NO promises; grantor isn’t even promising that he has
good title to convey. Quitclaim is worst deed buyer can hope for
Grantor is not promising he has title to convey – but grantor did implicitly
promise in land K to provide marketable title at closing any post-
closing problems are the buyer’s problem b/c the grantor is off the hook
B. 2. General Warranty: warrants against ALL defects in title including those due
to grantor’s predecessors; best deed buyer can hope for
Contains 6 promises grantor makes, including promises of predecessors in
interest:
Present Covenants: breached, if ever, at the moment of delivery
Statute of Limitations begins to run at the instance of delivery
o 1. Covenant of Seisin: grantor owns this estate that grantor
is giving to grantee
o 2. Covenant of Right to Convey: grantor promises she has
the power to make this transfer
Grantor is under no temporary restraint of alienation
o 3. Covenant Against Encumbrances: grantor promises there
are no servitudes or mortgages on the land
Future Covenants: not breached, if ever, until grantee is disturbed
in possession; cause of action for breach will not begin to accrue
until such time in the future as grantee is disturbed in possession
o 4. Covenant for Quiet Enjoyment: grantee won’t be
disturbed by possession by a third-party’s lawful claim of
title
The grantor is promising that he isn’t conveying the
land two people at the same time
o 5. Convents of Warranty: grantor will defend grantee
against lawful title claims brought by others
If someone does happen to show up w/ a claim of
superior title (surprise to us both), grantor will step
up to the plate & defend grantee
o 6. Covenant for Further Assurances: grantor will do
whatever is reasonably needed in the future to perfect the
title if it turns out to be flawed
Grantor says he’s a good faith cooperator
C. 3. Statutory Special Warranty Deed: Provided by statute in many states;
contains 2 promises that grantor makes only on behalf of himself; grantor makes
no promises/assumes no liability for any transgressions transmitted by his
predecessors
Promises:
1. Grantor promises he hasn’t conveyed estate to anyone other than
grantee; AND
2. Estate is free from encumbrances made by grantor
Recording System: “case of the dirty double dealer”
- Ex: O conveys Blackacre to A; thereafter, O conveys Blackacre to B. O leaves town.
- Policy: exists to protect mortgagees & bonified purchasers
- Who wins?
A. If B, who got there last, is a bonified purchaser in a notice Jx, B wins.
Must prove that you’re a BFP by:
1. Purchases land for substantial pecuniary value – must not have
come to the land b/c of a gift or left it in their will
o Recording statutes don’t protect donee’s, heirs, or devisees.
Must have BOUGHT land.
2. Buyer, at the time of his closing, must have been without notice
of A’s existence
o Later buyer must have taken w/o notice that someone else
got there first.
3 Forms of Notice:
1. Actual
2. Inquiry
o If A was in possession at or before
the time of B’s closing, B has inquiry
notice of that fact
3. Record
o Imputed to buyers on the basis of the
public records; if at the time B closes
& A’s deed had been properly
recorded within the chain of title, B
has record notice of A; regardless of
whether B bothered to search the
public records or not.
B. If B, who got there last, is a bonified purchase in a race-notice Jx, B wins ONLY
IF she records first
- Once you identify whether B, who got there is last, is a bonified purchaser & he is a BFP:
A. Notice state: B wins, as long as he is the last BFP to enter
Half US enacted notice statute
B. Race-notice state: in addition to (1) being the last BFP to enter, to win, (2) B
must also win the race to record (must record first)
C. Race state (minority): awards victory to whoever wins the race of recording,
irrespective of persons good faith or bad faith