1. Constitutional Law II: First Review Prof. Morrison Feb. 15, 2006

2. Spring 2006Constitutional Law: Review I2 Takings Controlled by 5 th Amendment States limited by 14 th Amendment Major issues Is there a “public use” When is there a “taking” Compensation issues

3. Spring 2006Constitutional Law: Review I3 Taking: Public use Courts will defer to legislative decision as to the existence of a public use. Kelo. Note that this is a 5-4 reaffirmation of existing precedent.

4. Spring 2006Constitutional Law: Review I4 Taking: When is there a taking? Possessory (physical) taking Any deprivation Loretto v. Teleprompter Regulatory taking “All or nearly all of the economically beneficial use” Lucas Balancing test Penn Central Crossover cases Zoning conditions Nolan Temporary takings First English Evangelical Lutheran Church v. Los Angeles County

5. Spring 2006Constitutional Law: Review I5 Takings: Compensation issues “Inverse condemnation” Mandamus to compel condemnation

6. Spring 2006Constitutional Law: Review I6 Contract Clause Article I, Section 10. Applies only to States and their subordinates, not to federal government Federal bankruptcy power Limits on federal power only under substantive due process

7. Spring 2006Constitutional Law: Review I7 Contract clause Applies only to obligations under existing contracts Applies to reductions and to increases in the obligation. Allied Structural Steel Strict application to obligations of the state itself. Bank of NY v. New Jersey

8. Spring 2006Constitutional Law: Review I8 Contract Clause Some state laws are upheld. Blaisdell 1. Existence of an emergency 2. Legislation directed to a legitimate end 3. Related to the emergency 4. Reasonable 5. Temporary

9. Spring 2006Constitutional Law: Review I9 Contract clause Indirect impact of a law on contracts Not a contracts clause issue; see law of frustration of contracts

10. Spring 2006Constitutional Law: Review I10 An Interlude: Statutory Interpretation Principal approaches Textual Legislative intent Canons of Interpretation

11. Spring 2006Constitutional Law: Review I11 Substantive due process 14 th Amendment 5 th amendment for federal actions, but standard seems to be more lenient

12. Spring 2006Constitutional Law: Review I12 Substantive due process: Two approaches Lochner (1905) “Is this a fair, reasonable, and appropriate exercise of the police power of the state...? Review of legislative judgment Nebbia (1937) “A state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare” Deference to legislative judgment

13. Spring 2006Constitutional Law: Review I13 Substantive due process Democracy issues Are there different standards for different issues? What if there is no discernable public purpose?

14. Spring 2006Constitutional Law: Review I14 “Privacy” issues Origins of “privacy” issues Substantive due process Equal protection 9 th amendment (and others) “Penumbra”

15. Spring 2006Constitutional Law: Review I15 Abortion cases Roe v. Wade (1973) Legitimacy of State interference “Trimester” conclusions Absolute conclusions Planned Parenthood v. Casey (1992) Reaffirming basic principle “Undue burden” standard

16. Spring 2006Constitutional Law: Review I16 Other “privacy” cases “Right to die” Individual can refuse medical treatment. Cruzan What about minors? Prisoners? Suicide laws State can prohibit. Glucksberg Medical treatment Consider adults? Children? Incompetents?

17. Spring 2006Constitutional Law: Review I17 Other “privacy” cases Sexual preference Lawrence

18. Spring 2006Constitutional Law: Review I18 Procedural due process 14 th Amendment (for states) and 5 th Amendment (for federal government) Elements State action Deprivation of “life, liberty, property” What process is due

19. Spring 2006Constitutional Law: Review I19 Procedural Due Process: State Action State action required: State Subdivisions (city, school district, public university, etc.) Employees and agents

20. Spring 2006Constitutional Law: Review I20 Procedural Due Process: Entitlement Must have “life, liberty, or property” interest An “entitlement,” not an “expectation” Roth, Sinderman There is not an entitlement to ordinary government services. Deshaney, Gonzalez

21. Spring 2006Constitutional Law: Review I21 Procedural Due Process: What Process Is Due Basic rule Notice Opportunity for a prior hearing Subject to exceptions Balancing test Matthews v. Eldridge Nature of private interest Risk of erroneous action (Dixon v. Love) Value of procedure in preventing that

22. Spring 2006Constitutional Law: Review I22 Procedural Due Process: Consequences Deprivation of due process (but not the underlying claim) is a federal issue Federal jurisdiction, not in local state courts Federal law 42 U.S.C. 1983 Attorney’s fees 42 U.S.C. 1988 “Settlement advantage”