Stop the Beach Renourishment and the Problem of Judicial Takings

17 Pages Posted: 30 May 2011 Last revised: 23 Mar 2014

See all articles by Ilya Somin

Ilya Somin

George Mason University - Antonin Scalia Law School, Faculty

Date Written: May 26, 2011


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.

Keywords: Anthony Kennedy, Beach and Shore Preservation Act, Bill of Rights, Condemnation, Due Process Clause, Eminent Domain, Expropriation, Federalism, Fourteenth, James Madison, Mean High Water Line, PruneYard Shopping Center v. Robins, Review, Rights, Sonia Sotomayor, Walton, County, Waterfront Land

JEL Classification: H82, K11

Suggested Citation

Somin, Ilya, Stop the Beach Renourishment and the Problem of Judicial Takings (May 26, 2011). Duke Journal of Constitutional Law & Public Policy, Vol. 6, No. 1, 2011 (Symposium on Judicial Takings), George Mason Law & Economics Research Paper No. 11-24, Available at SSRN:

Ilya Somin (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)


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