Property and Sovereignty

Question 1

what says the takings clause

Answer 1

private property can’t be taken for public use without just compensation

Question 2

what’s the common law about above or below ground

Answer 2

whoever owns the property also owns indefinite rights upward and downward

Question 3

is property held by tribes subject to takings clause

Answer 3

no, not considered private property for the purposes of a taking unless recognized by a treaty or exec order

Question 4

what was the takeaway from McIntosh

Answer 4

indians have robust rights - all US had was right to be the buyer if they decided to sel

Question 5

what was the takeaway from Tee Hit TOn

Answer 5

mere license - injuns don’t own anything, just have permission by whites to live there

Question 6

what are the 3 categories of factors for the Ad Hoc Balancing Test

Answer 6

1. economic impact of regulation
2. interference with reasonable investment-backed expectations
3. character of government action

Question 7

what are the 2 kinds of per se takings

Answer 7

1. physical invasion

2. deprivation of all economically viable use

Question 8

what are the steps for analyzing takings cases

Answer 8

1. do the facts plausibly fall into a per se category?
   - if yes, check if relevant exception applies
2. if no per se, does the regulation ‘go to far’ under the ad hoc balancing test?

Question 9

what are the exceptions to the per se takings

Answer 9

1. public accommodations
2. government trespass
3. background principles
4. conditional benefits

Question 10

what’s the big question in regulatory taking cases

Answer 10

is compensation required

Question 11

what’s the. big question in eminent domain takings cases

Answer 11

is the taking for ‘public use’

Question 12

what are the tests for eminent domain from Kelo

Answer 12

rational basis - majority

meaningful rational basis

heightened scrutiny

no economic development

public use means public ownership

Question 13

what is the kelo majority rational basis test

Answer 13

if legislature says the taking is needed for public purposes and the legislature’s purpose is legit and means not irrational –> OK

Question 14

what is the meaningful rational basis test

Answer 14

taking shouldn’t pass rational basis test if there is a clear showing that its purpose is to favor a particular private party with only incidental public benefits

Question 15

what is the heightened scrutiny test

Answer 15

must be clear and convincing evidence that the economic benefits will actually come to pass

Question 16

what’s the no Econ development rule