Judicial Takings and State Takings

30 Pages Posted: 10 May 2012

See all articles by Steven Eagle

Steven Eagle

George Mason University - Antonin Scalia Law School, Faculty

Date Written: May 10, 2012


In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a Supreme Court plurality asserted that takings liability could arise from judicial acts, as well as from state or local legislation and executive agency decisions. The Plurality’s rationale supporting “judicial takings” was that the Just Compensation Clause of the Fifth Amendment applies to State acts, not to particular State actors.

This article starts by reviewing the doctrinal bases for the Stop the Beach plurality opinion. It provides prudential reasons why rulings affecting property rights might be legitimate under state law, but nevertheless constitute compensable takings under the federal constitution. It then analyzes the implications of the “state acts and not state actors” doctrine to existing regulatory takings law. Viewed through the lens of “state acts,” the rationales of the Supreme Court’s Williamson County “state litigation” prong and its Dolan “legislative vs. adjudicative” bifurcation are undermined. Similarly, takings distinctions pertaining to whether small-scale rezonings are “legislative” or “quasi-judicial” acts are drawn into question.

Keywords: Antonin Scalia, Barton Thompson, branch, condemnation, eminent domain, entitlement holder, Felix Cohen, government, grant, Hughes, John Roberts, Lucas, Michael Berger, New York City, nuisance, Penn Central Transportation, Potter Stewart, Samuel Alito, South Carolina Coastal Council, Washington

JEL Classification: H82, K11, R11, R52

Suggested Citation

Eagle, Steven, Judicial Takings and State Takings (May 10, 2012). Widener Law Journal, Forthcoming, George Mason Law & Economics Research Paper No. 12-41, Available at SSRN: https://ssrn.com/abstract=2056041

Steven Eagle (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty

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