Pg 22

Question 1

Does the constitution guarantee an unrestricted privilege to engage in business?

Answer 1

No, some types of business are not allowed and the right to do business is conditional.

I.e.: Usery laws fix lending, industry is subject to control for the public good, etc.

Question 2

How are women’s body rights protected under the privileges immunities clause?

Answer 2

The Constitution protects women’s rights to have an abortion before viability without undue interference from the state
- but once viability hits, unless there’s an emergency that endangers the female or the baby, the state has a legitimate interest in protecting the health of the woman and the life of the fetus.

This deprives women of their liberty interest at that point

Question 3

Is retroactive legislation permitted?

Answer 3

No, it is prohibited by the due process clause and it voids legislation with a retrospective impact.

Question 4

What are four categories where retroactive legislation could be an issue?

Answer 4

– Emergency retroactive legislation
– curative statutes
– retroactive taxing legislation
– retroactive general legislation

Question 5

Is emergency retroactive legislation permitted?

Answer 5

This is usually sustained because of deference to emergency measures

Question 6

Are curative statutes often permitted?

Answer 6

These are usually sustained when they ratify prior official conduct in order to make a remedial adjustment in an administrative scheme.

I.e.: correcting a statutory flaw, removing unintended flaws that existing legislation had and trying to give full effect to the legislative intent, etc.

Question 7

Is retroactive taxing legislation usually upheld?

Answer 7

This is usually held to violate due process if it doesn’t have a rational relationship to a legitimate government interest.

Amendments to income tax laws are usually upheld because the court says that individuals should be on notice that all income may be subject to federal or state tax at some future time.

Increasing or modifying income tax to meet revenue goals of the government is rationally related to the legitimate government interest of raising revenue

Question 8

Is retroactive general legislation usually upheld?

Answer 8

The court looks at the constitutional validity of the legislation by considering reasonable notice and expectations. Usually if it is just a modification to a remedy, it is upheld

Question 9

What is the takings clause or eminent domain?

Answer 9

Private property will not be taken by the government without just compensation [market value of the property at the time of the taking] or for no reason [must be public use for property]. If property is taken for public use, the owner cannot stop it, but he can compel the government to pay value.

This is applicable to the states through the 14th

Question 10

What are the two different kinds of takings that can happen under the takings clause?

Answer 10

• Physical occupation

- regulatory taking

Question 11

What is a taking?

Answer 11

A physical intrusion on land, either permanently or temporarily that counts no matter how small. It is necessary that there is an interference with the owner’s present use or a prevention from him realizing a reasonable rate of return on his investment.

Ie: government parking trucks on the plaintiff’s land while doing construction beside it

Question 12

What must the government do if they commit a taking?

Answer 12

They must pay just compensation for any physical occupation, even if temporary.

Question 13

Is it considered to be a taking if the government is not occupying the land, but they are just regulating it in a way that the owner cannot use it anymore or in the way the owner wants to use it?

Answer 13

Yes

Question 14

Is it considered to be a taking if the government puts up a prison beside your house and that reduces your property value?

Answer 14

No

Question 15

What are the elements of a taking?

Answer 15

– Public use
– public purpose
– just compensation

Question 16

What are the two things that have to happen for a taking to be OK?

Answer 16

It must be for a public purpose or use and just compensation must be given

Question 17

What does public use mean under the takings clause?

Answer 17

For the public good or benefit, a public purpose, public necessity, or public utility, and it must be part of a plan that is legitimate and rational

Question 18

Under the takings clause can a city take land to confer a private benefit on a private party?

Answer 18

No

Question 19

Under the takings clause, is it necessary that the property be literally put to public use?

Answer 19

No, if it has a public purpose that is enough.

Ie: the state can transfer private property from one person to another private person if future use by the public is the purpose of the taking, such as a railroad

Question 20

If it isn’t a per se taking under the takings clause, but is instead a regulatory taking, then how is it decided?

Answer 20

Ad hoc after a balance of equities considering:
– the nature of the harm caused
– the social interests advanced by the regulation

Question 21

If there is a regulatory taking, what do the owners have to show in order to be compensated?

Answer 21

That the regulation unjustly shifts social costs to them by greatly diminishing the value of their property without promoting a legitimate social interest

Question 22

If land is transferred to a private person does that mean that it is not being “taken“ for a public purpose?

Answer 22

No, it can be for a public purpose if the taking is rationally related to a conceivable public purpose. The state can transfer property from one private party to another if a future use by the public is the point of the taking.

Question 23

If a taking is intended to favour a private party and also has an incidental or pretextual public benefit, is that OK?

Answer 23

No, that will be struck down

Question 24

What is the test to use to determine how much compensation a landowner should get under the takings clause?

Answer 24

Market value tests: what the owner has lost is what he will get, not what the taker has gained. This is based on the fair market value of the property in light of the property’s present and potential uses if they can be anticipated with reasonable certainty and is determined on the date of taking.

Question 25

Can a plaintiff get interest if there’s been a taking?

Answer 25

Yes, he can get interest if there has been a delay between the date of the taking and the date that the government gives payment. He can also get a new valuation if the value of the property materially changed during the delay

Question 26

What is inverse condemnation?

Answer 26

When the property has been taken by the government through a regulatory action or impairment of value. This asks for a court determination that a taking occurred and for the government to be forced to pay just compensation, cease their actions, or rescind the regulations.

Question 27

If a license has been revoked, is that a taking?

Answer 27

No, because there is no property right in a license, so there’s no taking if it is revoked

Question 28

What is the essay approach for a takings issue?

Answer 28

– ask if there has been a per se taking of private property for public use
– ask if it has deprived the plaintiff of all economic value

Question 29

If a taking occurs by regulation, what must have happened?

Answer 29

It must’ve denied the owner of all economically productive use of his land

Question 30

What are the different ways that a taking can happen?

Answer 30

– Physical seizure/appropriation
– regulation that denies the owner of all economically productive use of his land
– physical invasion

Question 31

What is a per se taking under the takings clause?

Answer 31

An absolute deprivation of the economic value of property through either:
- a regulation that denies the owner all economically productive use of the land
– a physical invasion of the land
– a seizure of property

Question 32

What is required when there has been a per se taking?

Answer 32

Just compensation must be paid. This is a categorical duty to compensate the owner regardless of whether the interest taken was the entire parcel or just a part of it. It’s necessary that the government pay for that share, no matter how small

Question 33

What is the difference between how you deal with a per se taking and any other kind of taking under the takings clause?

Answer 33

When it has been a per se taken, there’s no need for further inquiry, this type requires just compensation. If it is any other type of taking it requires a balancing test