Friday, December 4, 2009
Dahlia Lithwick, one of my favorite U.S. Supreme Court observers and probably one of the wittiest, dove into the debate this week over the merits of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection following oral arguments. Her article from Slate is entitled, "Spring Break, Scalia Style." Click here for a link to her post. Lithwick discusses first the blurry line between public and private, and how this line can be a dynamic one--"kind of like Kelo but without the poor people" (read: no blighted neighborhood). But unlike Kelo in that no one lost tangible property. In fact, as Justice Ginsburg pointed out: "[Property owners] have a wider beach that's theirs, so they have gained property." Nevertheless, the Stop the Beach plaintiffs argued that Florida's beach renourishment program harmed them: They lost the right to "touch the water." Lithwick points out, however, that the justices exhibited little patience in response to this argument. To be sure, whether Stop the Beach will change land use law remains unclear. Stop the Beach, however, will go down in history as the only case where the Court has debated hot dog stands, beach parties, and porta johns in a single argument, if at all. Take a look at Lithwick's article to find out why. Your takings hypotheticals will never be the same.
Will Cook, Charleston School of Law