Judicial State Action: Shelley V. Kraemer, State Action, and Judicial Takings

41 Pages Posted: 15 Nov 2013

Date Written: 2012

Abstract

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

Suggested Citation

Saxer, Shelley Ross, Judicial State Action: Shelley V. Kraemer, State Action, and Judicial Takings (2012). Widener Law Journal, Vol. 21, p. 847, 2012; Pepperdine University Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2354603

Shelley Ross Saxer (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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