My New Article on Judicial Takings

My new article, “Stop the Beach Renourishment and the Problem of Judicial Takings” is now available on SSRN. It is part of a symposium on judicial takings sponsored by the Duke Journal of Constitutional Law and Public Policy. Here is the abstract:

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection was the Supreme Court’s first effort to address the problem of judicial takings: whether or not a judicial decision can ever qualify as a taking that requires compensation under the Takings Clause of the Fifth Amendment. Unfortunately, a divided Court failed to resolve the issue, which is now left for future cases.

This article argues that judicial takings do exist. I also explain why this conclusion would not require federal courts to take on any unusual administrative burdens. Part II briefly discusses the background of Stop the Beach. In Part III, I defend Justice Antonin Scalia’s conclusion that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch [of government] is the instrument of the taking.” This principle follows logically from both the text and the original meaning of the Fifth Amendment. Various rationales for distinguishing judicial takings from other takings do not overturn this simple but sound conclusion.

Part IV addresses claims that enforcing a takings doctrine would lead federal courts into severe practical difficulties. A judicial takings doctrine would not require legal principles significantly different from or more complicated than other takings claims. Justice Stephen Breyer and others are wrong to suggest that such a doctrine would “invite a host of federal takings claims” that federal judges would be unable to handle.

I previously blogged about the Stop the Beach Renourishment case here.