Pg 24

Question 1

What is a total regulatory taking?

Answer 1

A regulation that deprives the owner of all economically beneficial use of the property. Regulating property is a taking if it goes too far.

Question 2

What is an exception to a total regulatory taking?

Answer 2

Noxious use exception: It is OK if the regulation did nothing more than prohibit use of property that historically would’ve been prohibited by nuisance law or other real property law. If that is the case then the regulation is not a taking even if all economic use was prohibited

Question 3

When are land use regulations not considered to be takings?

Answer 3

If they advance a legitimate state interest and they do not deny the owner economically viable use of the land.

Question 4

When is a land use regulation considered to be a taking?

Answer 4

If it is so onerous in its effect as to be the same as a direct appropriation or ouster. It is necessary to look at the regulation in the aggregate to see if the extent of the deprivation interest as a whole is trivial or not

Question 5

What is the two-part test to determine if a zoning law is a taking?

Answer 5

• it must appear that the interest of the public requires the interference
  – and the means are reasonably necessary to accomplish the purpose
  – as well as not unduly oppressive on the individuals

Only the most unusual and completely arbitrary zoning ordinance requires compensation. If zoning reasonably advances some arguable police power, it doesn’t require compensation

Question 6

Who has the burden to establish that the government should be required to pay compensation when the government has regulated an entire class of property, and an owner thinks that his property has diminished in value because of the regulation?

Answer 6

The owner.

But if the regulation is only on a specific piece of land, the government has the burden to justify its regulation

Question 7

Is it a taking if the government gives a legal monopoly to a utility provider that is private and then regulates the utility’s rates?

Answer 7

This is a regulation of the utility owner’s property, but if the rates are unjust it can be a regulatory taking. It is not a taking unless the rate is so unreasonable and unjust to be considered confiscatory because the government limited the rates of return to be so low

Question 8

What is a physical taking?

Answer 8

When the government puts water, earth, sand, or any artificial structure on land so that it effectually destroys or impairs its usefulness.

Question 9

What is the reasoning behind the doctrine of taking?

Answer 9

If the government has taken away the owner’s right to possess his space and he has no power to exclude the occupier, plus it denies the owner the power to control the use of his property, so that makes it devoid of value since a buyer wouldn’t be able to use the property either.

Question 10

What are some examples of physical takings?

Answer 10

An easement for electricity or cable, when the government condemns property, if the government buys property for a public purpose like building a highway

Question 11

What are the two different types of per se takings?

Answer 11

Total regulatory takings and physical taking

Question 12

What are the two types of taking that are not considered to be per se takings?

Answer 12

Conditions on land-use and Penn central takings

Question 13

How can putting conditions on land-use be considered a taking?

Answer 13

This happens when a government puts conditions on a property owner’s use of property, such as forcing a beach front owner to let the public access his beach.

Two different tests:
– essential nexus between legitimate state interest and the condition
– rough proportionality: the government must make individual determination that the dedication is roughly proportionate to the impact on the proposed development.

Question 14

What is a Penn Central taking?

Answer 14

A regulation that doesn’t totally eliminate the use or economic value of land, but put restrictions on it.

Look at this criteria to see if it is a taking: the economic impact, the extent it interfered with a distinct investment-backed expectation, the character of the government action, if it was objectively reasonable, diminution of value, substantiality, if fundamental aspects of ownership remained intact, etc.

Question 15

What is the essence and policy behind substantive due process?

Answer 15

This requires that if the government does something that infringes on an individual’s fundamental personal rights, it must be done fairly and with some good reason, not arbitrarily or capriciously. The more fundamental the right, the more protection it gets. This attempts to identify and protect inalienable rights

Question 16

What are inalienable rights?

Answer 16

Those that pre-exist the government, so they are not in a government’s legitimate power to subvert

Question 17

What is the difference between substantive due process and procedural due process?

Answer 17

– Substantive: deals with the substance of a government’s decision
– procedural: deals with the process that has to be given before a government can deprive someone of their rights

Question 18

What is substantive due process?

Answer 18

Judicial determination of the compatibility of the substance of a law or government action with the constitution. It looks at the constitutionality of the underlying rule. If the law can arguably be said to be rationally related to a legitimate government goal, it is upheld. All rights can be infringed on by the government if there is sufficient enough reason and the actions are sufficiently related to that means.

Question 19

Under substantive due process, if the government is going to classify people and treat them differently, what must they do?

Answer 19

They have to be able to justify it

Question 20

What is the standard to end life support under substantive due process?

Answer 20

If a person is incapacitated, the standard to be able to end their life support is that there must be clear and convincing evidence.

The state has an interest in protecting human life and this is balanced against the compelling liberty interest of the person. There is a higher evidentiary standard here to be sure that there is no error and everyone has a fundamental right to withdraw life-support

Question 21

Is physician-assisted suicide a fundamental right under substantive due process?

Answer 21

No and it isn’t protected under the constitution, so the government just needs a rational legitimate state interest. But states can go beyond constitutional rights and they can create statutes that allow these things as long as they do it in a way that is more protective of individuals constitutional rights

Question 22

Are economic rights considered to be fundamental under substantive due process?

Answer 22

No