Saturday, October 30, 2010
In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.
In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Deborah Curran on Field notes on navigating a POPO
- Stephen Miller on Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?
- Ben Davy on Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?
- Jesse Richardson on Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?
- Stephen Miller on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Shocking Allegations of Rough Justice at a P&Z Hearing in the Rural West: Environmental Activist Opposing Oil and Gas Project at Public Hearing Charged with Criminal Trespass and Spends Five Days in Isolation
- Cheever & Owley on Enhancing Conservation Options
- Planning for States and Nation-States in the U.S. and Europe
- New study highlights worker conditions in the sharing economy
- Audubon honors Women Greening Journalism