Takings and Retroactive Legislation Flashcards
What is the Contracts Clause?
prohibits states from passing any law impairing existing obligations or contracts .
Who does the contracts clause apply to?
states only
NOT federal government or judicial decisions
What is the exception to the Contracts Clause?
state law impairing existing contract will be permissible if:
Private contracts: intermediate scrutiny
Public contracts: stricter scrutiny
What are the rules regarding ex post facto laws?
State nor federal govt. may pass legislation that retroactively alters criminal liability.
e.g. criminalize act that was innocent when done; make crime greater/set greater punishment than when committed; reduce evidence required to convict.
What are the rules regarding bills of attainder?
Neither state nor federal govt. may pass legislation that designates particular individuals for punishment without trial.
Punishment = traditional measures but also exclusion from employment and benefits
What is the rule regarding takings?
Federal government (5A takings clause) and states (14A DP) may not take private property unless:
- public use
- just compensation
What types of property constitute property for takings purposes?
- real personal property (including right to possess, use, dispose, etc.)
- some intangible property
What are types of physical takings?
- confiscation
- regular or permanent occupation (temporary occupation depends on just how much interference)
- decreasing economic value- balancing test
What is regulatory taking?
- If regulation on use does not merely diminish property value but leaves no economically viable use, it is a taking
- merely decreasing economic value- balancing test looks to how much decreased compared to owner’s expectations for the property
What is the development exception for takings?
traditional conditions on property development (e.g. streets, utility easements, etc.) are not taking if benefits are roughly proportional to burdens
What is the emergency exception to takings?
taking less likely to be found, even for a complete and permanent deprivation, if pursuant to public emergency such as war
What is public use?
rationally related to a legitimate public purpose
What is just compensation?
FMV at time of taking.
What are remedies for takings?
- just compensation
- if no condemnation proceeding, landowner can get just compensation or termination of the regulation and temporary takings damages (called “inverse condemnation”)
