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10 Cards in this Set
- Front
- Back
When does a government regulation become a taking?
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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 |
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Is the Permanent Physical Occupation of Private Property a Taking?
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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 |
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Contract Clause
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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 |
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May Congress waive the 11th Amendment immunity of the States to enforce the provisions of the 14th Amendment
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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)
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11th Amendment
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Immunity of the states extends to states "arms of the state" which include state agencies
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May Congress abolish the 11th Amendment immunity of the states whenever it "percieves" an existing or future 14th Amendment violation by the states?
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No - there must be a congruence and proportionality b/t the injury to be prevented/remedied and the Congressional remedy
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Ex post facto Clause
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invalidates retroactive criminal laws
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Test for the regulation of commercial speech
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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) |
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Ripeness
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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
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General structure foe federal court review
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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 |