Judicial Takings and State Action: Rereading Shelley After Stop the Beach Renourishment

Abstract

The Supreme Court’s foray into longstanding debates about judicial takings in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection surprisingly echoes the high-water mark for the legal realist conception of property in the Court’s famous 1948 decision Shelley v. Kraemer. Few would lightly associate the members of the Stop the Beach Renourishment plurality with core realist understandings of property, but the plurality’s framework resonates strongly with the Court’s earlier approach to state action in Shelley. It would be naïve to argue that the plurality’s logic will revive Shelley’s implicit promise of weighing a broader array of individual rights in property disputes, but the felt necessity remains for finding guidance in constitutional rights in the oversight of private property regimes that implicate equality, due process, free speech, and other values.