Monday, August 2, 2010
John D. Echeverria (Vermont Law School) has posted Stop the Beach Renourishment: Why the Judiciary is Different on SSRN. Here's the abstract:
This essay, one of a collection of essays on Stop the Beach Renourishment v. Florida Department of Environmental Protection to be published by the Vermont Law Review, has two objectives. First, it attempts to situate the Supreme Court’s debate over the judicial takings concept within the framework of established takings doctrine. The results of this analysis suggest that the justices’ split over the judicial takings concept reflects fundamental disagreement about the relative virtues of per se vs. ad hoc analysis and about the nature of the Takings Clause as a constraint on government action.
Second, this essay assesses the merits of the judicial takings concept by analyzing the core issue of whether court rulings, like actions by the other branches of government, can constitute “takings” within the meaning of the Takings Clause. Contrary to Justice Antonin Scalia’s argument that all branches of government must be treated the same under the Takings Clause, this essay concludes that there are numerous reasons for treating courts differently, including: (1) the judiciary is not vested with the eminent domain power; (2) the rationale that takings liability serves to constrain majoritarian political impulses generally does not apply to the judicial branch; (3) the judicial takings concept would undermine the relationship between the federal and state court systems; (4) the state courts’ institutional structure provides a relatively strong assurance of fidelity to federal constitutional values; and (5) court rulings on property law issues tend to apply broadly across the community rather than single out particular individuals to bear special burdens.
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