Protecting Property Through Politics: State Legislative Checks and Judicial Takings
Stephanie M. Stern
Chicago-Kent College of Law
May 6, 2013
97 Minnesota Law Review 2176 (2013)
Chicago-Kent College of Law Research Paper 2013-28
In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.
Number of Pages in PDF File: 69
Keywords: judicial takings, takings, Fifth Amendment, property law, state legislatures, judicial review, courts
JEL Classification: K10, K11, K19Accepted Paper Series
Date posted: May 7, 2013 ; Last revised: October 21, 2013
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