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

15 Pages Posted: 17 Nov 2016

Date Written: 2011

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.

Suggested Citation

Davidson, Nestor M., Judicial Takings and State Action: Rereading Shelley After Stop the Beach Renourishment (2011). Duke Journal of Constitutional Law & Public Policy, Vol. 6, No. 1, 2011, Fordham Law Legal Studies Research Paper No. 2869900, Available at SSRN: https://ssrn.com/abstract=2869900

Nestor M. Davidson (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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