Judicial

Judicial Review
Issue
Rule: The S.C is authorized to review laws and legislative acts to determine whether they comply with
the constitution. Marbury v. Madison established the authority for judicial review of both federal
executive and legislative acts, and Martin v. Hunters Lessee established the authority for judicial
review of state court decisions (appellate Jurisdiction). However, Ex Parte McCardle
established that appellate jurisdiction is subject to the exceptions and regulations made by congress.
Apply. Conclude.
JUSTICIABILITY
Is there a Case or Controversy?
1. Standing?
a. Injury?/Causation?/Redressability?
b. 3rd party suit or generalized grievance?
2. Ripeness?harm must have been suffered or imminently threatened
a. Premature for judicial review? Is injury speculative?
3. Mootness?
a. Has something happened to end plaintiffs injury?
4. Remember
a. No Advisory opinionsMust be case or Controversy
b. No political QuestionCourt will not decide issue that is not suitable for Judicial
Branch.
Issue
Rule: Article III, Section 2, authorizes federal courts to hear cases (federal question jurisdiction) and
controversies (diversity jurisdiction). There are five Justiciability doctrineswhich are judicially
created limits on the matters that can be heard in federal courtsand which must be met for a case to
be heard in federal court.
Apply. Conclude.
Advisory Opinions
Issue
Rule: The federal courts will not issue advisory opinions; they are only authorized to hear cases or
controversies. That is there must be an actual dispute between adverse parties and the courts decision
must bring about some change. Accordingly, the Justiciability doctrines seek to ensure that there is an
actual case or controversy between adverse litigants.
Apply. Conclude.

StandingNEXT PAGE

Standing
Issue
Rule: Standing is the determination of whether a specific person is the proper party to bring a matter
to court. There are 3 constitutional requirementsinjury, causation and Redressabilityand 2
prudential requirementsno 3rd party suits or generalized grievances. And all of these requirements
must be met for there to be standing.
CONSITUTIONAL REQUIREMENTS OF STANDING
Injury, Causation & Redressability
Rule The first constitutional requirement is that a plaintiff must allege that he has
suffered or imminently will suffer an injury. The injury must be direct, palpable, and
personal to the plaintiff (Allen v. Wright/Lujan). The second constitutional requirement
is that the plaintiff must show that the injury is traceable to, and thus caused by, the
defendants conduct(causation). The third constitutional requirement requires a
plaintiff to allege that a favorable court decision would remedy the injury (Redressability).
Causation & Redressability
Rule: The second constitutional requirement is that the plaintiff must show that the
injury is traceable to, and thus caused by, the defendants conduct.
PRUDENTIAL REQUIRMENTS OF STANDING
No 3rd Party suits
Rule: The The first prudential requirement restricts a plaintiff from raising the claim of a
third party. However, third party standing is permitted when a plaintiff meets the
aforementioned constitutional requirements and when (1) his relationship with the third party
is such that their rights are inextricably bound, and (2) when it is unlikely that the third party
can or will bring suit on his own behalf (Singleton).
No Generalized Greivances
Rule: The second prudential requirement restricts a plaintiff from asserting generalized
grievances based on his taxpayer or citizen status (Flast). However, standing in this case is
permitted if the taxpayer (1) is challenging an enactment under the Taxing and Spending
Clause, and (2) asserts that the challenged enactment exceeds specific constitutional limits
imposed on the taxing and spending power (Richardson).

Ripeness
Rule: For proper federal jurisdiction, the claim must be ripe for review. A claim is ripe where the
plaintiff would suffer harm if review were denied. In determining whether a case or controversy is ripe
for adjudication, the court must evaluate (1) the fitness of the issues for judicial decision, and (2) the
hardship to the parties if consideration is withheld. For example, in Abbott Laboratories, the plaintiff
brought suit to enjoin the federal government from enacting a law that would require it to replace all
labels on their drugs or get new packaging. First, the Court determined the issue was fit for decision
because no questions of fact remained to be decided, so the judicial issues were pure questions of law.
Second, the Court assessed the hardship of the parties, who would suffer immediate and severe
financial harm if consideration was withheldpay to comply with new regulations or break the law
because it was clear that the federal law was going to be enforced. Alternatively, in Poe, an issue
concerning contraceptives law wasnt ripe for review because no one had been convicted or
prosecuted under the law and there wasnt any evidence that the law was going to be enforcedno
immediate or future threat of injury.
Mootness
Rule: For proper federal jurisdiction, there must be an actual controversy at every stage of the
litigation. Thus if events after the filing of the lawsuit end the plaintiffs injury, the claim should be
dismissed as moot. This doctrine is derived from Article IIIs prohibition against advisory opinions,
because if a case is moot, there is no longer an actual case or controversy between adverse litigants.
However, there are three exceptions to this doctrine.
The first exception is for wrongs capable of repetition yet evading review. Some
injuries are of such short duration that inevitably they are over before the court proceedings
are. So, a case is not dismissed, even though it is moot, if there is an injury likely to recur in the
future and it is possible that is could happen to the plaintiff again, and it is of such a short
duration that it likely always will evade review. For example, in Roe v. Wade, the Court said
that pregnancy provides the classic justification of nonmootness because it is shorter than the
average appeal process and because a pregnant, or once pregnant, plaintiff could get pregnant
again and face the same issue. Alternatively, in DeFunis, a plaintiffs constitutional challenge
regarding his denial of admission to law school was deemed moot because by the time it got to
court the school had admitted the student and he was finishing his final year of law school, so
he wouldnt suffer the same injury again.
The second exception is for voluntary cessation. A case is not to be dismissed as
moot if the defendant voluntarily ceases the allegedly improper behavior but is free to return to
it at any time (Friends of the earth). A controversy will only be deemed moot on the grounds of
voluntary cessation by the defendant if the defendant proves there is no reasonable chance it
could resume the offending behavior in the future.
The final exception is for class action suits. A properly certified class action suit may
continue even if the named plaintiffs claims are rendered moot, as long as the other members
have a live controversy. For example, in Geraghty, a federal prisoner brought a class action suit
challenging the parole guidelines after being denied parole, and to protect the interests of
others who would be eligible for parole. On appeal, the prisoner was released, but the case was
not moot because the class of unnamed persons comprising the remainder of the class action
had a live controversy.

Political Question
Rule: : The last big limitation on judicial authority is the political question doctrine, which
does not derive from the case or controversy language, but from the structural separation of powers.
Under this doctrine, some questions are not appropriate for judicial determination and should be left
to the political branches. For an issue to be deemed a non-justiciable political question, one of six
tests must be satisfied (and are listed in descending order of importance/certaintyBaker). The first
three tests are based on textual or structural arguments: (1) a textually demonstrable constitutional
commitment of that issue to another political branch; (2) a lack of judicial discoverable and
manageable standards for resolving the issue; or (3) the impossibility of deciding the issue without
making an initial policy determination of a kind not suitable for judicial discretion. The final three
tests are based on prudential arguments: (4) a lack of respect for the other branches of government in
undertaking independent resolution of the case; (5) an unusual need for unquestioning adherence to a
political decision already made; or (6) the potential for embarrassment for differing pronouncements
of the issue by different branches of government.
For example, in Vieth, the Court determined that political gerrymandering represents a
nonjusticiable political question because there were no coherent standards available (2 nd test
from Baker). Although Justice Kennedy stated he would not foreclose justiciability in the
future.
Additionally, in Goldwater, the Court held that the constitutionality of a unilateral action by
the president to rescind a treaty without Senate involvement is a non-justiciable political
question because the Constitution is silent as to whether both executive and legislative action is
required, and judicial standards were lacking.
Lastly, in Nixon v. US, the Court held that the constitutionality of Senate impeachment
proceedings is a non-justiciable question because the text of the constitution gives sole power
to the senate, which means that they determine the rules by which impeachment proceedings
are conducted, and because there were no judicial standards to determine whether the use of a
committee satisfied the constitutional commitment to the senate to try such proceedings.
However, in Powell, the Court held that a challenge to restrictions on congressional
membership set by the House of Representatives is justiciable and not a political question
because the power is not in the legislative branch to seat the representativesthey are voted
into their seat by the peopleand the text of the Constitution only gives them power to make
sure certain requirements are met (age, citizenship, etc.).

Legislative
Congressional Action
Rule: Congress may act only if there is express or implied authority to do so in the Constitution.
In evaluating the constitutionality of any act of Congress, the court must consider whether Congress
has the authority under the Constitution to legislate (i.e., enumerated powers in Art. 1, 8, or explicit
prohibitions in Art. I, 9), and if so, whether the law violates another constitutional provision or
doctrine, such as by infringing separation of powers or interfering with individual liberties.
Necessary and Proper Clause
Rule: The Necessary and Proper clause authorizes congress to make laws as it deems necessary and
proper to carry out other enumerated powers. McCulloch v Maryland. The necessary and proper
clause grants congress broad authority to enact federal legislation that is rationally related to the
implementation of a constitutionally enumerated power. U.S. v. Comstock.
Commerce Clause
Rule: Article I, Section 8, gives Congress the power to regulate commerce among the states.
There are four main eras of Commerce Clause Jurisprudence in which the Court has had
varying interpretations of what commerce among the states, means and whether the 10 th
Amendment acts as a limit on this power.
In the initial era, the Court broadly defined Congress commerce power, but minimally used
it. Gibbons v. Ogden.
In the Lochner era, the Court narrowly defined the commerce power and consistently used
the 10th Amendment as a limit.
In the New deal Era, the Court expansively defined the scope of the commerce power and
refused to apply the 10th Amendment as a limit.
Then, in the 90s, the Court narrowed the scope of the commerce power and again started to
use the 10th Amendment as an independent and judicially enforceable limit on federal actions. This
era is characterized by Lopez.
Under the modern CC doctrine, Congress has the power to enact laws that regulate the channels
of interstate commerce, the instrumentalities of interstate commerce, and economic activities
(Morrison/Lopez) that taken in the aggregate (Wickard/Raich), have a substantial effect
(NRLB/Darby) on interstate commerce, or that undercut a pervasive federal scheme (Raich).
The channels of interstate commerce can include roads (Darby), railways, navigable waters
(Gibbons v. Ogden), and so on. The instrumentalities of interstate commerce include people or
things (i.e. vehiclesSchecter) that travel or operate in the channels of interstate commerce, even
though the threat may come only from intrastate activities. Economic activities that have a
substantial affect on interstate commerce can include labor relations (NLRB), or activities taken
in the aggregate like growing wheat (Wickard), or illegal economic activity like growing weed at
home (Raich). Gun possession (Lopez) and violence against women (Morrison) are not considered
economic activities.
The 10th Amendment limits this power in that Congress may not pass regulations that have the effect
of commandeering states legislative processes (NY v. US), and may not compel state officials to
participate in the administration of federal programs (Printz v. US).

Taxing & Spending Clause

Article 1 Section 8 authorizes congress the broad power to tax and spend for the general
welfare. U.S. v. Butler.
This power allows congress to indirectly influence states into adopting national standards by
withholding federal funds. South Dakota v. Dole. In Dole The Court said that the receipt of federal
funds could be conditional if the exercise of the spending power is (1) for the general welfare; (2)
the conditions are unambiguous; (3) conditions are related to a federal interest; and (4) the
conditions dont violate the constitution.
Most recently, in NFIB v. Sebelius, the Court upheld the individual mandate of the
Affordable Care Act as constitutional exercise of Congress taxing power because the penalty was
paid to the IRS. However, the Court held that the Medicaid expansion provision was not within
Congress spending power because it was coercing state complianceCongress could only provide
incentives.
Civil War Amendments
When the 13th, 14th, and 15th Amendments were added to the Constitution after the Civil War,
Issues arose concerning (1) whether Congress could regulate private conduct under this authority, or
is Congress limited to regulating only government actions; and (2) the scope of Congress power
under these amendments.
In the Civil Rights Cases, the Court invalidated the Civil Rights Act of 1875, and adopted
a restrictive view as to the power of Congress to use these new Amendments to regulate. The
Court held that Congress was limited to regulating state and local government actions under
the 13th and 14th Amendments. Congress could not use its 13thA power to eliminate
discrimination, but only to ensure an end to slavery. In Morrison, the Court held again that
Congress 14thA powers were limited to regulating state conduct not private actors.
Katzenbachbroad viewCongress has authority to interpret the 14thA to expand the
scope of rights or even to create new rights. Congress may create rights by statute where the
Court has not found them in the Constitution, but Congress cannot dilute or diminish
constitutional rights.
o Textual arg on the meaning of enforce: Congress is enforcing the amendment by
creating greater protections than those found by the Court.
o Structural arg: both Congress and the Court have authority to recognize and
protect rights under the Constitution.
o Allocation of power arg: aimed at creating needed national power to protect civil
rights and civil liberties.
Boernenarrow viewCongress only has authority to prevent or provide remedies for
violations of rights recognized by the Supreme Court. Congress cannot expand the scope of rights or
provide additional rights.
o Textual arg on the meaning of enforce: Congress is not enforcing if it is creating
new rights.
o Structural arg: Its solely the Courts role to decide the rights protected under the
Constitution; Congresss role is limited to enacting laws to prevent and remedy
violations.
o Allocation of power arg: aimed at limiting federal power, reserving more governance
for the states, and lessening the instances in which the federal government can
regulate state and local actions.
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Executive
Inherent Presidential Powers
The president does not have an inherent power to engage in lawmaking without an express
authorization from Congress or the Constitution. Youngstown Sheet & Tube v. Sawyer. In
Youngstown, Justice Jackson, in his concurring opinion, explained three instances in which a
president has inherent power. First, a presidents power is strongest when he acts with approval of
congress. Second, a presidents power is at a middle ground when congress is silent on an issue. And
Third, a presidents power is weakest when he acts against the express or implied will of congress.
Additionally, the presidents executive privilege is not absolute. He may not invoke executive
privilege in a criminal case U.S. v. Nixon. However, limited executive privilege does apply in civil
suits. Cheney v. U.S. DistrictCourt of D.C..

Federalism
Where congress has acted.
Preemption
Where congress has not actedor judiciary decides that fed law has not preempted.
Dormant Commerce Clause
Privileges Immunities of Article IV

Preemption
a.
a.
b.
c.

d.
b.
a.

b.

c.

Rule:
Two possible kind of preemption: (1) Express; or (2) Implied. (Lorillard)
If no express provision, move on to implied. (Lorillard)
Three kinds of implied preemption:
(1) Field; (Hines; Arizona)(2) Conflicts; or (Avocado)Impediment. (Pacific Gas)
Dismiss whichever ones are obviously not relevant. And move on to applying the other two.
Application:
First mini IRAC:
i. Issue: Field Preemption
ii. Rule: Has federal govt occupied the field; pervasive scheme (Hines)
iii. Apply: In Hines, Court looked to federal govt as occupying the field of immigration
regulation, at least in a pure regulatory context. Compare/ contrast.
iv. Conclude.
Second mini IRAC:
i. Issue: Impediment Preemption
ii. Rule: Does state law impede a federal objective? (Pacific Gas)
iii. Apply: What is the federal purpose in regulating immigration? Does this impede?.
iv. Conclude.
Conclude: Is there implied preemption?

There are two types of preemption: express or implied. Express preemption is where
some federal law contains a clause that expressly preempts state or local laws (Lorillard)look at
congressional intent to be sure. Implied preemption, when federal laws dont contain preemption
clauses, can occur in three instances. First theres conflicts preemption, where a state law is deemed
preempted if it conflicts with federal law so that it is impossible to follow both (Avocado). Second,
impediment preemption, were a state or local law is preempted if it impedes the achievement of a
federal objective (Pacific Gas). Third, field preemption is where a state or local law is preempted
because the federal government occupies the field or its part of a pervasive regulatory scheme
(Hines/Arizona).

Dormant Commerce Clause

a. Rule:
i. Generally must balance interest in free market national economy v. state sovereignty.
ii. Modern rule looks first to threshold inquiry into discrimination (Phil v. NJ)
iii. Two kinds: Facial & Purpose or Effect (Phil v. NJ)
iv. Facial rule: virtually per se invalid (Phil v. NJ); two step rigorous scrutiny:
(1) Legitimate state interest; (2) No nondiscriminatory alternative.
v. Does either exception (Cong App; Market Particip) apply? (Reeves).
b. Apply:
i. Legitimate state interest?
ii. Alternative? Make your arguments. GET CREATIVE HERE
c. Conclude: Is there a DCC violation?
The dormant commerce clause establishes that state and local laws are unconstitutional if they
place an undue burden on interstate commerce. The Court has inferred this limit on state regulatory
power from the grant of power to Congress to regulate commerceeven if Congress has not acted, so
that its commerce power lies dormant, state and local governments cannot place an undue burden on
interstate commerce.
Originally, the Court to relied on rigid distinctions of where federal law was exclusive
and where states could regulatelocal/national subject matter test (Cooley), and the police
power/commerce power test (Gibbons).
Since then, the Court has tried to balance the overarching interests of a national
economy and open market versus state sovereignty rights. The modern approach first looks
to whether a law is discriminatory, and then applies a balancing test.
A state or local law is discriminatory if it treats out-of-staters differently than in-staters
either (1) facially; or (2) in its purpose or effect. A facially discriminatory law draws a
distinction between in-staters and out-of-staters by its very terms (Phila v. NJ). These laws are per
se invalid and must pass a rigorous scrutiny test to be upheld (Phila v. NJ). A facially neutral
law, on the other hand, may not be discriminatory in its terms, but will be considered discriminatory
and subject to the same rigorous scrutiny if the law discriminates in its purpose or effect (Hunt v. WA
Apples) (West Lynn Creamery)
If the state law is discriminatory then the govt bears the burden of proving that (1) its
necessary to achieve a legitimate govt purpose; and (2) no reasonable
nondiscriminatory alternative exists (Maine v. Taylor).
If the state law is not discriminatory, then a balancing test is applied, and the state
or local law will be upheld unless its burden on interstate commerce clearly outweighs its
benefits (Pike).
However, discriminatory state laws will be upheld if the state (1) has congressional
approval; or (2) is acting as a market participant (Reeves). The market participant
exception is limited to the buying of selling of products, so the state cannot impose regulatory
schemes that control what people do after a sale is complete. (South-Central Timber).

Privileges & Immunities of Article IV

a. Rule:
a. Rule is similar to DCC, except applies only to citizens in cases of discrimination.
b. Does this case involve citizens?
c. Is there discrimination? Facially? Purpose or Effect?
d. Must then decide if a fundamental or important economic right is at stake.
i. Is a citizen prevented from earning a livelihood/Practicing their profession/ or Engaging in
Business?
e. Two-part test: (1) Substantial reason for discrimination; (2) regulation must be closely
related to a substantial state interest.
b. Apply:
a. Substantial reason? What reason does the state or local govt give?
b. Close Relationship? Make your arguments.
c. Conclude: Is there a P & I violation?
The Privileges and Immunities Clause of Article IV prohibit a state from denying noncitizens the privileges and immunities afforded to its own citizens. Thus a state or local law which
discriminates against out-of-staters with regards to civil liberties or an individuals ability to earn a
living will be struck down as unconstitutional unless the state demonstrates that the law is necessary
to serve an important government purpose.
The Privileges and Immunities Clause of Article IV is similar to the dormant commerce
clause in that theyre both used to challenge state and local laws that discriminate against outof-staters.
However, the P&IC can be used only if the law discriminates against citizens (not
corporations or aliens), and the DCCs exceptions dont apply. Under the P&IC analysis, the
Court will consider whether (1) the state discriminated against out-of-staters with regard to
privileges and immunities that it accords its own citizens, and if so, whether (2) the state has a
substantial reason for the discrimination that bears a close relationship (Camden/Piper).
The P&IC is not absolute, but creates a strong presumption against state and local laws that
discriminate against out-of-staters with regard to fundamental rights or important
economic activitiesright to earn a livelihood (Toomer). If theres no discrimination, or if
the right at stake is not fundamental or an important economic right, then the P&IC does
not apply. (Baldwin) (Toomer)

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Application of the Bill of Rights to the States

Privileges and Immunities of 14th Amendment
a. Rule:
a. Right to travel: Saenz v. Roe
b. Right to be treated equally when traveling into a new state;
c. if discriminationheightened review (maybe even strict?)
b. Apply:
a. does this discriminate?; apply heightened scrutiny above.
b. Would it survive strict scrutiny? Compelling interest? Narrowly tailored?
c. Conclude: Is there a P & I violation?
The Privileges or Immunities Clause of the 14th A protects the right to travel by
allowing citizens to move freely between states, securing the right to equal treatment in all states
when visiting, and securing the rights of new citizens to be treated the same as long-term citizens
living within the state (Saenz v. Roe). If a state law does discriminate against a citizens right to travel
or right to be treated equally when traveling into a new state, then the law will be subject to a sort of
strict scrutiny. The government will need to assert a compelling government interest that is narrowly
tailored.
The 14th Amendment only applies where there is action by the state or local government, or by
an individual who is performing a function, which is traditionally performed exclusively by the
state.

The Equal Protection Clause of the 14th Amendment prohibits state governments from denying any
person equal protection of the laws.
To successfully assert an equal protection claim, the plaintiff must first show that she is a member of
a class of persons who is being treated differently from others. The discrimination may appear on the
face of the law, or where the law is facially neutral, the plaintiff must show that there is both a
discriminatory intent for the law and a discriminatory impact for the law.
Where there is a classification, the level of scrutiny to be applied depends on classification
at issue or the right being limited.
Classifications based on race, national origin, or alienage generally must meet strict
scrutiny necessary to achieve a compelling government purpose. So must regulations which
implicate a fundament right travel, voting or Free Speech.
Classifications based on gender or illegitimacy must meet intermediate scrutiny
substantially related to an important government purpose.
Where the law does not affect a suspect class nor implicate a fundamental right, the law need only
meet rational basis review. That is the challenger must demonstrate that the law is not rationally
related to a legitimate government interest. E.g. Age, disability, wealth and other classifications.

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Incorporation
Application of the Bill of Rights to the States
The text of the Constitution, apart from the Bill of Rights, contains few provision concerning
individual liberties. In part this is because the Framers were concerned about enumerating rights in
the Constitution because it could deny the people of any rights not listed, which is why the 9thA was
added.
On the other hand, several states were concerned about the absence of enumerated rights,
which led to the creation of the Bill of Rights. The issue arose of whether the BofR applied to the
states and local governments, and in Barron, the Court held that it did not.
The Privileges or Immunities Clause of the 14thA seemed to be a way to apply the BofR
to the states, but in the Slaughter-House Cases, the Court narrowly interpreted the clause and said it
didnt apply the BofR to the states.
Then, in the 20th century, the Court applied most of the BofR to the states by incorporating
them through the Due Process clause of the 14thA.
State Action DoctrineApplication of the BofR to private conduct
The State Action Doctrine is the principle that the Constitutions protections of individual
liberties and its requirement for equal protection apply only to the government.
Private conduct generally does not have to comply with the Constitution (Civil Rights Cases:
Stanley). However, the 13thA directly regulates private conduct in that it forbids people from being or
owning slaves. Additionally, federal and state statutes can apply constitutional norms to private
conduct. For example, the Civil Rights Act of 1964 prohibits private discrimination by private
employers and by places of public accommodation. Still, actions brought under such statutes are
governed by the terms of the laws and the Constitution still does not apply. Finally, there are two
exceptions to the State Action Doctrine where private conduct has to comply with the constitution:
(1) the public functions exception, and (2) the entanglement exception.
The public functions exception requires a private entity to comply with the constitution if it
is performing a task that has been traditionally and exclusively done by the government
(Marsh/Jackson). In Marsh, the Court expansively defined this exception and could be used to find a
great deal of private conduct to be state action. The Court used a balancing test and looked to whether
the private property is used for a public purpose. However in Jackson, the Court narrowly defined the
exception and made it difficult to find that private actors are performing a public function. Instead of
a balancing test, the Court focused on whether it was an activity that has been traditionally,
exclusively done by the government.
And the entanglement exception requires private conduct to comply with the Constitution if
the government has authorized, encourages, or facilitated the unconstitutional conduct (Shelley v.
Kramer/Lugar v. Edmonson/Edmonson v. Leesville). Either the government must cease its
involvement with the private actor or the private entity must comply with the Constitution. In Shelley,
the Court held that racially restricted covenants were unconstitutional because they were secured by
judicial enforcement. This decision is controversial because virtually anything can be made state
action under it and then ultimately all private actions must comply with the Constitution. The Court
hasnt taken the rule in Shelleys case that far, and has only considered judicial enforcement as state
action when a person uses the court for prejudgment attachment (Lugar v. Edmonson Oil) and the
use of peremptory challenges at trials (Edmonson v. Leesville).

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Due Process
Substantive Due Process & Economic Due Process
Substantive due process asks whether the government has an adequate reason for
taking away a persons life, liberty, or property, and focuses on the sufficiency of the
justification for the governments action.
Over the course of American history, substantive DP has been used primarily to protect
economic liberties and safeguarding privacy.
The Lochner Era ecompassed the orginial interpretation of substantive due process,
where the freedoms protected by the DP clause of the 14 thA included only economic
liberties like the freedom to contract, practice a trade or profession, and property rights
(Allgeyer/Lochner). The Lochner era favored deregulation and small government.
The switch in time brought the Post-Lochner Era occurred in West Coast
Hotel, where the Court upheld a state minimum wage law for women, indicating
that economic regulation would be reviewed only to see if the purpose of the legislation
was legitimate and not arbitrary, and if the means to accomplish the purpose were
rationally related. However, the Court has held that some liberties are so important that
they are deemed to be fundamental rights and that generally the government cannot
infringe them unless strict scrutiny is met.
The threshold inquiry for a modern substantive due process issue asks if the
case involves a fundamental right. A fundamental right is one that is enumerated in the
Bill of Rights, or is rooted in history and tradition, or essential to our scheme of ordered
liberty.
If there is an infringement of a fundamental right, the government will need to meet
strict scrutiny, but if the right is not fundamental then the rational basis test will be applied.
First, the government must prove that they have a compelling interest to justify an
infringement. Second, the government must also prove that the interest is narrowly tailored,
which means its necessary to achieve the interest and there are no other less restrictive means.

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Takings
There are 2 main categories of takings; Possessory; and Regulatory or Use. The
government may take private property through the power of eminent domain. However, it may
only do so if (1) it does do for public use and (2) it provides just compensation to the owner. (The
Fifth Amendment).
Traditionally, the concept of taking only encompassed physical takings.
Today, the term taking encompasses any governmental action that significantly damages a
properties value or impairs its use.
Possessory taking involves an actual physical occupation, no matter how minute. (Loretto)
No balance testcompensation due
Regulatory takings refer to regulations that impair use. (Pennsylvania Coal)
PUBLIC USE
Use will be held as public as long as it is rationally related to a legitimate pub purpose.
i.e. health, welfare, safety, moral, social, economic, political, or aesthetic ends.
Govt may even authorize a taking by private enterprise.
TAKING v. REGULATION
While the govt must compensate an owner for property taken for public use, it need not
compensate for mere regulation of property.
Depends on degree:
Connolly Factors for Takings:
1- Economic impact on claimant/private party
Appropriation/physical invasion or just restriction on use
Denial of all economic valueTaking
2- How much interference regulation causes?
3- What is the character of the government action? (frustration, ban, intrusive)
JUST COMPENSATION
Fair market value at time of taking

14