Term
| What does the privileges and immunities clause prohibit? |
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Definition
| State discrimination against citizens of another state, DOES NOT INCLUDE corporations, or aliens. |
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Term
| Which rights are protected under the privileges and immunities clause? |
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Definition
| Fundamental rights and essential activities. Ex: employment, transfer of property, access to state courts. |
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Term
| Discrimination against out-of-state citizens may be valid if the state can show: |
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Definition
A substantial reason for the difference in treatment:
1. The nonresidents either cause or are a part of the problem that the state is attempting to solve; and
2. There are no less-restrictive means to solve the problem. |
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Term
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Definition
| The power of the government to take private property for public purposes. The takings clause of the 5th amendment requires just compensation. |
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Term
| May the government transfer property taken under the takings clause to another private party? |
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Definition
| Only if the taking is rationally related to a conceivable public purpose. |
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Term
| What type of property may be "taken" by the government? |
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Definition
| All real and personal property including intangible PP such as IP. |
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Term
| What is the standard to justify the government taking property for public use, |
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Definition
| The taking must merely be rationally related to a conceivable public purpose. |
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Term
| If the government damages or destroys private citizen property, is that a taking? |
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Definition
| Yes. Even airspace has been considered a taking. |
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Term
| What exception releases the government from their duty to compensate for a taking? |
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Definition
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Term
| Can the government re-characterize private property to public property without it becoming a taking? |
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Definition
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Term
| How does a court determine whether there is a regulatory taking? |
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Definition
The court considers:
1.The economic impact of the regulation on the property owner
2.The extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and
3.The character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property. |
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Term
| What are two scenarios in which a per se taking has occurred? |
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Definition
1. A taking has occurred when the governmental regulation results in a permanent physical occupation of the property.
2. When a regulation results in a permanent total loss of the property’s economic value, a taking has occurred. |
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Term
| A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is: |
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Definition
i) An essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance legitimate state interest); and
ii) A rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. |
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Term
| What does "just compensation mean? |
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Definition
| The phrase “just compensation” has been interpreted to mean fair market value, which is the reasonable value of the property at the time of the taking. This value is measured in terms of the loss to the owner, not the benefit to the government. |
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Term
| What compensation does the owner get if only a portion is taken by the govt? |
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Definition
| When only a portion of an owner’s property is taken, the owner may also receive compensation for any diminution in value of the remaining portion that is attributable to the taking but must reduce any compensation by the value of any special and direct benefits (e.g., a highway access) conferred on the remaining portion. |
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Term
| What is a bill of attainder? |
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Definition
A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial.
They are forbidden. |
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Term
| What is an ex-post-facto law? |
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Definition
| Prohibits retroactive changes to criminal or penal law. |
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Term
| A federal or state statute will be struck down as being ex post facto if it: |
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Definition
i) Criminalizes an act that was not a crime when it was originally committed;
ii) Authorizes, after an act was committed, the imposition of a more severe penalty on that act;
iii) Deprives the defendant of a defense available at the time the act was committed; or
iv) Decreases the prosecution’s burden of proof required for a conviction to a level below that which was required when the alleged offense was committed. |
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Term
| State legislation that substantially impairs a contract between private parties is invalid, unless: |
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Definition
| the government can demonstrate that The interference was reasonable and necessary to serve an important governmental interest. |
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