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Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Thursday, September 8, 2011

Patashnik on Bringing a Judicial Takings Claim

Josh Patashnik (Stanford student) has posted Bringing a Judicial Takings Claim on SSRN.  Here's the abstract:

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Supreme Court breathed life into the doctrine of judicial takings – the idea that judicial decisions, like executive and legislative action, might be deemed to take property rights under the Takings Clause of the Fifth Amendment. Before the case, judicial takings were the province only of law review articles, a few offhanded mentions in Supreme Court concurring and dissenting opinions, and one or two cases in the lower federal courts. Stop the Beach Renourishment firmly established the proposition that the federal Constitution provides some protection against judicial redefinition of property rights, though the Court was unable to determine whether that protection emanates from the Takings Clause of the Fifth Amendment or the Due Process Clause of the Fourteenth Amendment. In this Note, I seek to shed some light on the unexamined questions of how and where, in the wake of that case, a party aggrieved by a judicial property law decision might actually go about bringing such a claim, and what remedy she might hope to obtain. I conclude that a plaintiff bringing a judicial takings claim (or a due process claim rooted in judicial takings) should be able to bring her case in federal court, notwithstanding the barriers the Supreme Court has erected that keep the vast majority of federal takings litigation in state court. I further argue that while the Eleventh Amendment likely precludes a federal court from awarding money damages to a judicial takings plaintiff, equitable relief – in the form of invalidation of the offending state court opinion – should be available.

Steve Clowney

http://lawprofessors.typepad.com/property/2011/09/patashnik-on-bringing-a-judicial-takings-claim.html

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