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10 Cards in this Set

  • Front
  • Back
When does a government regulation become a taking?
Criteria for evaluation:
1) the economic impact of the regulation on the claimant
2) the extent to which the regulation has interferred w/ the investment-back claimant and
3) the character of the governmental action
**there is a taking when the regulation leaves no economic viable use
**However the government regulation is not a taking simply b/c it decreases the value of a persons property so long as it leaves reasonable economically viable use
Is the Permanent Physical Occupation of Private Property a Taking?
A permanent physical occupation of private property by the governemtn or government regulation which allows someone other than the property owner to have permanent physical occupation of a definable part of a piee of property should constitute a taking.
**As such property owner should get damages for the value of the property used
Contract Clause
Prohibits states from enacting retroactive laws that impair an existing contractual obligation
(3) Step Test:
1)whether the state law has operated as a substantial impairment of a contractual relationship and if so
2) whether the state law is designed to promotes a significant and legitimate public purpose and if so
3) whether the law adjusting the contract obligations was a reasonable and narrowly tailored means of promoting the public purpose identified
May Congress waive the 11th Amendment immunity of the States to enforce the provisions of the 14th Amendment
Yes - in appropriate circumstances (i.e. ADA properly abrogated the 11th Amendment thru sec. 5 of the 14th Amendment as applied to cases involving the fundamental right of access to courts)
11th Amendment
Immunity of the states extends to states "arms of the state" which include state agencies
May Congress abolish the 11th Amendment immunity of the states whenever it "percieves" an existing or future 14th Amendment violation by the states?
No - there must be a congruence and proportionality b/t the injury to be prevented/remedied and the Congressional remedy
Ex post facto Clause
invalidates retroactive criminal laws
Test for the regulation of commercial speech
1)directly advance
2) a substantial government interst and
3) be no more rstrictive than necessary (there must be a narrowly tailored fit b/t the means and the end)
Just as a case can be brought too late, and thereby be moot, it can be brought to early, and not yet ripe for adjudication
General structure foe federal court review
Proceed from Federal Distict Court to Federal Court of Appeals and then to the U.S. Supreme Court
** Obligatory U.S. Supreme Court Review has been virtually eliminated