o Takings
o taking?
§ per se taking: physical occupation by govt
§ regulatory taking: deprives land of all economically viable uses
· social goals
· diminution in value
· owners reasonable property exepectiations
o public use?
o no taking, no comp req’d
o Procedural due process
o deprivation of life liberty or property interest.
§ property: deprivation occurs where there is an entitlement to property that is not fulfilled. reasonable expectation to continued receipt of a benefit
§ liberty: deprivation of a significant freedom provided by the constitution
o fair hearing: balance the
§ importance of the interest to the individual
§ whether further proceedings will increase accuracy and fact finding.
§ govt’s interest in cost and efficiency
o Substantive due process
o RBR
o SS
o
o law does not discriminate on its face, then show discriminatory effect with discriminatory intent
o RBR:
o IS:
§ gender/illegitimacy
o SS:
§ fundamental right or
§ suspect class: race/national origin
· discreet insular minorities
· widespread discrim
· political powerlessness
· immutable characteristics
o Supremacy clause
o federal law directly on point
o federal law fully occupies the area
o state law obstructs the federal objective
o DCC
o congress’s enumerated powers to regulate interstate commerce
o state: 10th amendment, powers not reserved to another branch are given to the states. states may regulate to promote the health, welfare, safety, and morals of its citizens
§ regulation may not discriminate against out of state commerce or unduly burden interstate commerce
· nondiscriminatory regulation? then must not unduly burden
o nondiscriminatory regulation on instrumentality, channel, or activities that in their aggregate have a substantial effect on interstate commerce
o Burden on i/c must outweigh state interest
· discriminatory regulation?
o S/S: no alt means of promoting health, safety, welfare/morals
o market participant exception
o priv and immunities if it affects the pursuit of liberty
o freedom of speech
o Conduct: free speech is not implicated
o Conduct that communicates/free speech implicated
§ Content neutral: no more restrictive than necessary to achieve and important state interest
§ Content specific
· Necessary to achieve a compelling interest unless unprotected speech
o commercial speech that is unlawful/fraudulent may be regulated
o incitement:
§ likely to cause imminent harm
§ intended to cause imminent harm
o obscene or sexually explicit
§ appeals to prurient interest (contemp community standard)
§ portrays ex in a patently offensive manner (contemp community standard)
§ lacks literary, artistic, political scientific value (national reas person standard)
§ Does the statute regulate the Time, Place, Manner of speech?
· public/designated public forum:
o content neutral, narrowly tailored to serve an important government purpose and leave open adeuate alternative channels of communication (I/S)
o content specific: see above: S/S unless unprotected
· non-public forum/private property unless serving public function (company town)
o must be viewpoint neutral
o rbr: reasonably related to legit govt interest.
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