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Constitutional Law: Has there been a violation that’s redressible under the U.S. Constitution?
Washburn University School of Law, Bar Services | Constitutional Law MBE Flow Chart | 1 Don’t forget the different types of standing (e.g., 3d party standing, organizational standing, taxpayers, etc.)
Was there Standing? Was there Ripeness?
1. Threshold question: If P is suing, is the case justiciable?
Was there Mootness? Were there Political Questions? Will the Fed court here abstain from hearing the case? Were there 11th Amendment issues? Legislative Branch issues (sources of powers & limits [see below]) Separation of Powers issue?
Federal Legislative Powers issue? 2. What kind of Constitutional issue has arisen?
Note: This flow chart was prepared by Washburn Bar Services and is merely intended as a supplement to helping students gain practical comprehension of the MBE subject that it reflects. There may be more issues or more depth of issues that will need to be covered by students in a usual bar study. It is not intended to replace materials for a comprehensive bar program, such as BarBri or Kaplan.
Did Congress’s actions come from a legitimate and Constitutional source of power, such as the following? 1. Commerce Clause (Intestate & Dormant) 2. War Powers 3. Tax and Spending Powers 4. Necessary and Proper Clause 5. Takings Power 6. Citizenship 7. Postal Monopoly Was Congress’s powers limited in some legitimate and Constitutional way by perhaps the following? 1. 10th Amendment? 2. Section 5 of the 14th Amendment (civil rights)? 3. No plenary police powers? 4. Geographic neutrality? Pre-emption?
State limits or interference with Federal powers issue?
Dormant Commerce Clause? Intergovernmental immunity? State Privileges & Immunities? Federal Privileges & Immunities? Contracts Clause? Full Faith & Credit?
Washburn University School of Law, Bar Services | Constitutional Law MBE Flow Chart | 2 Content based regulations (including defamation)
Always analyze first if there was state action. Then move onto the constitutional issues involving individual rights.
Religion Establishment Clause Press Association
Equal Protection
Note: This flow chart was prepared by Washburn Bar Services and is merely intended as a supplement to helping students gain practical comprehension of the MBE subject that it reflects. There may be more issues or more depth of issues that will need to be covered by students in a usual bar study. It is not intended to replace materials for a comprehensive bar program, such as BarBri or Kaplan.
Substantive Due Process
Know the scrutiny tests and what kind of violations will trigger what corresponding test. For instance, discrimination based on race will trigger strict scrutiny.
Know the scrutiny tests and what kind of rights violations will trigger what corresponding test. For instance, right to vote will always trigger strict strutiny.
Procedural Due Process
Takings Ex post facto laws Retroactive legislation
