Property rights guarantees: takings and contract clause

Question 1

Takings clause rule

governmental regulation of property

Answer 1

fed gov’t (5A) and state gov’ts (14A) cannot take PRIVATE PROPERTY

for PUBLIC USE

without JUST COMPENSATION

Question 2

Takings: rule of thumb

Answer 2

the more drastic the REDUCTION IN VALUE to objectively RP, more likely a taking

Question 3

Takings vs. Non-Takings: obvious takings (2 types)

Answer 3

1) possessory takings

2) regulatory takings

Question 4

Exception to possessory takings

Answer 4

Public Emergency Exception: can posses w/o paying compensation in cases of SERIOUS PUBLIC SAFETY or HEALTH EMERGENCIES

Question 5

Examples of possessory takings (3)

Answer 5

confiscation, destruction, or permanent physical occupation

Question 6

What is a regulatory taking?

Answer 6

regulation leaves NO reasonable ECONOMICALLY VIABLE USE of the property

e.g. ordinance requires preservation of lot in natural state

Question 7

What are NOT obvious regulatory takings?

Answer 7

regulations that merely decrease economic value

Question 8

Taking: When regulations merely decrease economic value (leaving reasonable economically viable use), how does the court determine if it is a taking?

Answer 8

use balancing analysis:

weight gov’t purpose

vs.

decrease in value of property to owner w/ reasonable expectations in use

Question 9

Taking: when is the “public use” requirement satisfied? examples?

Answer 9

(rational basis review)
when gov’t reg is RATIONALLY RELATED to a LEGITIMATE PUBLIC INTEREST

examples: health, safety, aesthetics

Question 10

Taking: what “just compensation” is required? (2 ways to provide)

Answer 10

1) FMV for prop @ time of taking

OR

2) terminate reg + pay owner reasonable damages for loss of use when reg was in effect

Question 11

Steps for reviewing taking Q

Answer 11

taking? - possessory or regulatory that leave no viable economic use?

if yes, public use? - rational basis review

if yes, just compensation (pay FMV) OR
terminate the taking (pay interim damages)

Question 12

Contract clause rule

governmental regulation impairing K rights

Answer 12

• STATE and LOCAL (not fed gov’t)
• governmental REGULATIONS (statutes and administrative regs, NOT judicial decisions)
• cannot SUBSTANTIALLY INTERFERE (must go to heart of K)
• with the obligations of EXISTING Ks

Question 13

What are the different review standards for private vs. public contracts (to determine if they’ll be upheld)?

Answer 13

private- intermediate-level scrutiny (substantially related, important gov’t interest)

public- strict scrutiny (narrowly tailored, achieve compelling interest)

Question 14

Who are private Ks b/w?

Answer 14

private parties

Question 15

Who are public Ks b/w?

Answer 15

gov’t is one of the parties

Question 16

Who usually wins when someone challenges governmental interference w/ PRIVATE Ks?

Answer 16

gov’t

intermediate-level scrutiny (substantially related, important gov’t interest)

Question 17

Why are public Ks subject to strict scrutiny?

Answer 17

conflict of interest when gov’t tries to change a K they are a party to

Question 18

What is the usual result of challenges to gov’t interference w/ public Ks?

Answer 18

gov’t usually loses

ct won’t strike down law for ALL purposes, but just as applied to this PARTICULAR K