Substantive due process - Next Generation Bar Exam

1. What standard governs substantive due process challenges to abusive executive action?

   Whether the conduct shocks the conscience. County of Sacramento v. Lewis applied this standard to a police chase.

2. Under Troxel v. Granville, what fundamental right do parents have?

   To make decisions concerning the care, custody, and control of their children. A court may not override a fit parent's decision simply because it disagrees.

3. What standard applies to laws burdening a fundamental right protected by substantive due process?

   Strict scrutiny. Laws not burdening a fundamental right receive rational-basis review.

4. What standard governs substantive due process challenges to economic and social welfare legislation?

   Rational basis. The Court abandoned the Lochner era's close scrutiny of economic regulation.

5. Under Washington v. Glucksberg, what is the status of a claimed right to physician-assisted suicide?

   It is not a fundamental right. Cruzan, by contrast, assumed a right of a competent person to refuse unwanted medical treatment.

6. Through what doctrine do most Bill of Rights guarantees apply to the states?

   Selective incorporation through the Fourteenth Amendment's Due Process Clause. Recent examples include the Second Amendment in McDonald and the Excessive Fines Clause in Timbs.

7. Under Obergefell v. Hodges, to whom does the fundamental right to marry extend?

   To same-sex couples. The Court relied on both the Due Process and Equal Protection Clauses.

8. Under Dobbs v. Jackson Women's Health Organization, what standard applies to abortion regulations?

   Rational basis, because the Constitution confers no right to abortion. Dobbs overruled Roe v. Wade and Planned Parenthood v. Casey and returned the issue to the people and their representatives.

9. Under BMW v. Gore and State Farm v. Campbell, what guideposts determine whether punitive damages violate due process?

   Reprehensibility of the conduct, the ratio to actual harm, and comparable civil penalties. Single-digit ratios are more likely to satisfy due process.

10. Under Washington v. Glucksberg, what must be shown to establish an unenumerated fundamental right?

    A carefully described right that is deeply rooted in the nation's history and tradition and implicit in ordered liberty. Dobbs reaffirmed this history-and-tradition approach.

11. An ordinance defining 'family' narrowly bars a grandmother from living with two grandsons who are cousins. Under Moore v. East Cleveland, what is the status of the ordinance?

    It violates substantive due process by intruding on the extended family's right to live together. Family living arrangements deeply rooted in tradition are protected.

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