Con Law

Question 1

What constitutes a deprivation of liberty under the Due Process Clause?

Answer 1

(1) A loss of significant freedom of action or
(2) Denial of a freedom provided by the Constitution or statute.

Question 2

The “Taking” Clause Rule Statement

Answer 2

The Fifth Amendment prohibits governmental taking of private property for public use without just compensation. It is applicable to the states through the Fourteenth Amendment.

Question 3

Rule statement for difference between “Taking” and “Regulation”

Answer 3

The government must fairly compensate an owner when her property is take for public use; however, it does not need to pay compensation for a mere property regulation.

Question 4

Punitive Damages Key issue plus factors to consider to determine if they violate due process

Answer 4

Key issue: whether the defendant had fair notice of the possible magnitude of the punitive damages. Factors: (1) The reprehensibility of the defendant’s conduct; (2) The disparity between the actual or potential harm suffered by the plaintiff and the punitive award; and (3) The difference between the punitive damages award the criminal or civil penalties.

Question 5

Substantive Due Process Clauses Rule Statement

Answer 5

The Due Process Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment guarantee the fairness of laws—substantive due process guarantees laws will be reasonable and not arbitrary.

Question 6

Rule Statement for Punitive Damages

Answer 6

The Court has held that punitive damages do not necessarily violate due process. However, “grossly excessive” damages—unreasonably high to vindicate the state’s interest in punishment—are invalid. Except for particularly egregious conduct, punitive damages should not exceed nine times the compensatory damages.

Question 7

How is just compensation measured when required to compensate a taking?

Answer 7

The measure is based on the loss to the owner, not he gain to the taker. Increases in value to the owner’s remaining property as a result of the taking will not be used to offset damages.

Question 8

When is a use “public” in terms of the Taking Clause? Standard of Review

Answer 8

A use will be held to be public as long as it is rationally related to a legitimate public purpose.

Question 9

Actual damages for plaintiff who prevails in defamation suit

Answer 9

May be awarded not only for economic losses but also for injury to the plaintiff’s reputation int he community and for personal humiliation and distress.

Question 10

What is the rule for temporary denials of all economic use in terms of the Taking Clause?

Answer 10

It does not constitute a taking per se. The Court will carefully examine and weigh all the relevant circumstances to determine whether fairness and justice require just compensation.

Question 11

Prior Restraint on Speech rule statement

Answer 11

A prior restraint is a court order or administrative system that keeps speech from occurring. Court will uphold prior restricts if some special harm would otherwise result. A prior restraint must be narrowly tailored to achieve some compelling government interest and certain procedural safeguards must be included.

Question 12

Rule for proving fault in defamation case where private figure is suing on a matter of public concern

Answer 12

The plaintiff must show that the defendant was negligent in failing to ascertain the truth of the statement. If plaintiff only shows negligence and not “actual malice” he must also show evidence of actual damages.

Question 13

What will be required of the government if a landowner brings an inverse condemnation action and the court determines that government action amounted to a taking?

Answer 13

The government will be required to: (1) Pay the property owner compensation for the taking or (2) Terminate there regulation and pay the owner for damages that occurred while the regulation was in effect.

Question 14

What happens when property is “worthless” to the owner in terms of the Taking Clause?

Answer 14

Because just compensation is measured by the loss to the owner and not by the gain to the taker, property that is “worthless” to the owner can be the subject of a taking, but no compensation need to be paid when it is taking.

Question 15

Rule statement regarding remedy for a governmental “taking”

Answer 15

When the government acts under the power of eminent domain to take property for public use, it will condemn the property and pay the owner just compensation. Where the property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation.

Question 16

Rule for procedural safeguards for prior restraint on speech.

Answer 16

(1) The standards must be narrowly drawn, reasonable, and definite so as to include only prohibit able speech; (2) If the restraining body wishes to restrain dissemination of an item, it must promptly seek an injunction; (3) There must be a prompt and final determination father validity of the restraint

Question 17

Categories of Unprotected Speech

Answer 17

(1) Imminent Lawless Action (2) Fighting Words (3) Obscenity (4) Defamation (5) False Advertising

Question 18

Burden on plaintiff in public figure or public concern defamation case regarding falsity

Answer 18

The plaintiff must prove by clear and convincing evidence that the statement was false.

Question 19

Constitutional Rule RE Defamation

Answer 19

When a person is sued for making a defamatory statement, the First Amendment places restrictions on the ability of the government to grant a recovery where (1) the person suing is a public official or figure or where (2) the defamatory statement involves an issue of public concern. In such cases, the plaintiff must prove the tort elements of defamation plus they must show (1) the statement was false and (2) the person making the statement was at fault to some degree.

Question 20

Procedural Due Process Rule Statement

Answer 20

The Due Process Clause of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide the the government shall not take a person’s life, liberty, or property without due process of law. Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker.

Question 21

What is “just compensation” for a “taking” of property?

Answer 21

The owner is entitled to the fair market value other property AT THE TIME OF THE TAKING—not the value it would have if put to its highest and best use.

Question 22

What is the scope of the “Taking” Clause in terms of what is considered a taking?

Answer 22

Includes physical appropriations of property as well as some governmental action that significantly damages property or impairs its use. Also personal property and intangibles.

Question 23

Damage actions by private individuals for intentional infliction of emotional distress are subject to the First Amendment rights of defendants if . . .

Answer 23

the speech related to a matter of public concern, despite its outrageous and hurtful quality.

Question 24

“Deprivation” rule statement under the Due Process Clause

Answer 24

A deprivation of life, liberty, or property requires more than a mere denial of certain remedies. Only when the government affords no remedy or inadequate remedies may a deprivation of life, liberty, or property result.

Question 25

What will almost always, if not always, constitute a taking under the Taking Clause? What is the rule for damage from temporary interference with use?

Answer 25

A taking will almost always be found if there is an actual appropriation or destruction of a person’s property or a permanent physical invasion by the government or authorization of law. Government action that amounts to a temporary appropriation or physical invasion of property may amount to a taken depending on the severity.

Question 26

Considerations to determine whether a regulation that decreases the economic value of property constitutes a taking.

Answer 26

(1) Social goals sought to be promoted (2) Diminution in value to the owner (3) Whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.

Question 27

Factors for weighing what type of process is required for a substantive Due Process issue? What is always required?

Answer 27

(1) importance of individual interest;
(2) value of specific procedural safeguards to that interest; and
(3) governmental interest in fiscal and administrative efficiency.

Fair procedures and unbiased decisionmaker. Generally, also notice and opportunity to respond.

Question 28

Rule for proving fault in defamation case where plaintiff is a public official or figure

Answer 28

A public figure may not recover for defamatory words relating official conduct or a matter of public concern without clear and convincing evidence that the statement was made with actual malice.

Question 29

When is a use restriction considered a “taking”? What is a use restriction not considered a “taking”?

Answer 29

If a government regulation denies a landowner of ALL economic use of his land, the regulation is equivalent to a physical appropriation and it thus a taking. Generally, regulations that merely decrease the value of property do not result in a taking as long as they leave an economically viable use for the property.

Question 30

Exceptions to the finding of a “taking” where it involves an actual appropriation or physical invasion?

Answer 30

(1) Emergencies (2) Some temporary interference

Question 31

Definition of “Actual Malice”

Answer 31

(1) Knowledge that the statement was false; or (2) Reckless disregard as to its truth or falsity

Question 32

General rule for injunctions that restrict First Amendment activity Test to determine whether it is constitutional

Answer 32

Injunctions that restrict First Amendment activity in public forums are treated differently from generally applicable ordinances because injunctions present a greater risk of censorship and discriminatory application. The test depends on whether it is content neutral. (1) Content Based—necessary to achieve compelling government interest (2) Content Neutral—burdens no more speech than necessary to achieve an important government purpose

Question 33

Fundamental Rights Requiring Strict Scrutiny

Answer 33

Right to travel; Right to privacy; Right to vote; First Amendment Rights

Question 34

What are the due process guarantees for a taking of property under the government’s eminent domain authority?

Answer 34

Due process guarantees notice and hearing on the amount of compensation, but the hearing need not precede the taking.

Question 35

General rule for when zoning ordinances constitute a “taking” Exception

Answer 35

Governments may adopt zoning ordinances that regulate the way real property may be used. Such regulations generally do not amount to a taking even if they deny an owner the highest and best use of her property. Exceptions: (1) It amounts to a physical appropriation; (2) It denies an owner of all economic use; or (3) it unreasonably interferes with district investment-backed expectations

Question 36

What is required for procedural due process regarding civil forfeitures of property?

Answer 36

Notice and hearing prior to seizing the property.

Question 37

What is required for a statement to be defamatory?

Answer 37

It must be false and the statement must be viewed by a reasonable person as a statement of fact, rather than opinion or parody.

Question 38

Rule for when building/development permits conditioned on conveying land to the government or granting the public access will be considered a taking.

Answer 38

Such exactions constitute an uncompensated taking unless (1) the government can show the condition related to a legitimate government interest and (2) the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer.

Question 39

Recovery for Depiction in False Light

Answer 39

Te recover damages for depiction in a false light arising out of comments directed at activities of public interest, an individual must establish falsity and actual malice, whether or not he qualifies as a public figure.

Question 40

Test to Determine What Process was Due Before or After the Taking of Rights

Answer 40

The court balances three factors: (i) importance of private interests being affected, (ii) the government’s interest in efficiency, and (iii) the likely added value of additional protective procedures.

Question 41

Substantive Due Process Generally

Answer 41

Guarantees fairness of laws—law will be reasonably and not arbitrary.

Question 42

Standards of Review for Due Process Violations

Answer 42

(1) Strict Scrutiny–narrowly tailored to serve a compelling government interest

• Fundamental Rights
  
  • Travel
  • Privacy
    
    • Sex
    • Abortion
    • Marriage
    • Contraceptives
    • Parental Rights
  • Voting
  • First Amendment Rights
  • Etc.

(2) Rational Basis–rationally related to a legitimate government interest
* Everything else that is not a fundamental right

Question 43

Procedural Due Process

Liberty includes . . .

Property includes . . .

Answer 43

losses of significant freedom of action.

legitimate claims/entitlements to property and government benefits.

Question 44

Taking Clause

Use Restrictions

1. Denial of all economic value constitutes what?
2. Decrease in economic value constitutes what?
3. Rule for dedications.

Answer 44

1. A taking
2. Generally not a taking if economically viable use remains
3. Building permits cannot be conditioned on forced dedication unless government can show legitimate interest and adverse impact of development reoughly proportional to loss.