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Protecting Property Through Politics: State Legislative Checks and Judicial Takings

69 Pages Posted: 7 May 2013 Last revised: 21 Oct 2013

Stephanie M. Stern

Chicago-Kent College of Law

Date Written: May 6, 2013

Abstract

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.

Keywords: judicial takings, takings, Fifth Amendment, property law, state legislatures, judicial review, courts

JEL Classification: K10, K11, K19

Suggested Citation

Stern, Stephanie M., Protecting Property Through Politics: State Legislative Checks and Judicial Takings (May 6, 2013). 97 Minnesota Law Review 2176 (2013); Chicago-Kent College of Law Research Paper 2013-28. Available at SSRN: https://ssrn.com/abstract=2261371

Stephanie M. Stern (Contact Author)

Chicago-Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States
312-906-5285 (Phone)

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