Monday, October 29, 2012
John Sprankling (McGeorge) has posted The Property Jurisprudence of Justice Kennedy (McGeorge Law Review) on SSRN. Here's the abstrac:
Scholars have largely neglected Justice Kennedy’s property jurisprudence, a surprising omission given his pivotal role on the Supreme Court. This essay explores three aspects of his jurisprudence which distinguish him from other current Justices: (1) his tendency to approach property disputes from the perspective of liberty; (2) his effort to address the tension between natural law theory and legal positivism in defining “property”; and (3) his attempt to resist the expansion of regulatory takings jurisprudence by channeling some disputes toward resolution under the Due Process Clause.