Abstract

http://ssrn.com/abstract=2102789
 


 



Property Rights, the 'Gang of Four' & the Fifth Vote: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (U.S. Supreme Court 2010)


Garrett Power


University of Maryland Francis King Carey School of Law

2012

Widener Law Journal, Vol. 21, No. 3, p. 627-654, 2012
U of Maryland Legal Studies Research Paper No. 2012-35

Abstract:     
In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts had the power to collaterally attack and reverse state court decisions which evaded the requirements of the Taking Clause with pretextual background principles of the State's law of property. Second he opined that each of the “essential sticks in the bundle of rights that are commonly characterized as property” was a separate distinct property right, and that any deprivation of an “established property right” was a compensable Taking under the Fifth and Fourteenth Amendments. If the “Gang of Four” can find a fifth vote, the law of regulatory takings will be radically revised.

Number of Pages in PDF File: 29

Keywords: constitutional limitations, property rights, regulatory takings, background principals, judicial takings, Riparian Rights

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Date posted: July 10, 2012  

Suggested Citation

Power, Garrett, Property Rights, the 'Gang of Four' & the Fifth Vote: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (U.S. Supreme Court 2010) (2012). Widener Law Journal, Vol. 21, No. 3, p. 627-654, 2012; U of Maryland Legal Studies Research Paper No. 2012-35. Available at SSRN: http://ssrn.com/abstract=2102789

Contact Information

Garrett Power (Contact Author)
University of Maryland Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201-1786
United States
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