The Complexities of Judicial Takings

59 Pages Posted: 30 Oct 2010 Last revised: 14 Apr 2011

D. Benjamin Barros

University of Toledo - College of Law

Date Written: October 28, 2010

Abstract

In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.

In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.

Keywords: Stop the Beach

Suggested Citation

Barros, D. Benjamin, The Complexities of Judicial Takings (October 28, 2010). University of Richmond Law Review, Vol. 45, 2011; Widener Law School Legal Studies Research Paper No. 10-32. Available at SSRN: https://ssrn.com/abstract=1699355

D. Benjamin Barros (Contact Author)

University of Toledo - College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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