Economic liberties Flashcards
applicable level of scrutiny for economic substantive due process
fairly strict–substantial interest and substantially related
Why was Lochner criticized?
too much judicial activism
not enough deference to elected branches
right to K not fundamental
Contemporary protections of property rights
takings clause
contracts clause
Where is the takings clause found?
5th Amend
Types of Takings
physical
regulatory
Physical takings
govt occupies property at issue, no matter how minor. Compensation required
Regulatory takings
when legislation goes too far and deprives owner of economically beneficial use of land
Penn Central Factors–to determine if regulatory takings have “gone too far”
- economic effect on property owner
- extent to which regulation interferes w/ reasonable, investment-backed expectation of owner
- character of govt action
Where is the Ks clause found?
Art I §10 cl 1
Ks clause
no state shall pass any law impairing the obligation of Ks
Who is prohibited from impairing Ks in the K clause?
Only states and local govts, not fed
What Ks are protected by K Clause?
existing Ks
private and govt Ks
What level of scrutiny is applied to Govt Ks?
closer to strict scrutiny
impairments myst “be necessary to serve an important public purpose”
otherwise, govt could just get out of Ks
level of scrutiny applied to private Ks
intermediate
Ks clause analysis for private Ks
- is the impairment to the K substantial?
- is the govt interest legitimate?
- are the means reasonable?
