Judicial State Action: Shelley V. Kraemer, State Action, and Judicial Takings
41 Pages Posted: 15 Nov 2013
Date Written: 2012
This essay will explore whether recognizing a judicial taking would also constitute an overhaul of the state action doctrine by potentially turning a judicial decision that uses common law to resolve private litigation into state action that requires just compensation for a Fifth Amendment taking. Applying the principle from several cases -- including Shelley v. Kraemer, New York Times Co. v. Sullivan, Cohen v. Cowles Media Co., Edmonson v. Leesville Concrete Co., and Georgia v. McCollum -- that "the action of the [s]tates to which the [a]mendment has reference includes action of state courts and state judicial officials" to state court decisions impacting property rights may, in the words of Justice Scalia in his dissent in McCollum, just be following a bad doctrine "logically to its illogical conclusion."
Keywords: judicial taking, state action, Fifth Amendment, Takings Clause, real property, Shelley v. Kraemer, New York Times Co. v. Sullivan, Cohen v. Cowles Media Co., Edmonson v. Leesville Concrete Co., Georgia v. McCollum
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