The Property Jurisprudence of Justice Kennedy
16 Pages Posted: 27 Oct 2012
Date Written: 2012
Scholars have largely neglected Justice Kennedy’s property jurisprudence, a surprising omission given his pivotal role on the Supreme Court. This essay explores three aspects of his jurisprudence which distinguish him from other current Justices: (1) his tendency to approach property disputes from the perspective of liberty; (2) his effort to address the tension between natural law theory and legal positivism in defining “property”; and (3) his attempt to resist the expansion of regulatory takings jurisprudence by channeling some disputes toward resolution under the Due Process Clause.
Keywords: Kennedy, Justice Kennedy, property, property rights, constitutional law, liberty, natural law, legal positivism, takings, regulatory takings, Takings Clause, substantive due process, Due Process Clause
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