Friday, February 14, 2014
James Krier (Michigan) has posted Judicial Takings: Musings on Stop the Beach (Brigham-Kanner Property Rights Conference Journal) on SSRN. Here's the abstract:
This brief paper is a primer on and critique of judicial takings after Stop the Beach. Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their rights under Florida common law to receive accretions to their frontage on the water, and to have their property remain in contact with the water. The state supreme court disagreed, concluding that the owners never had the rights they claimed. The owners then sought (and were granted) review by the Supreme Court, the question now being whether the state supreme court’s decision worked a judicial taking because it was contrary to Florida common law. They lost, all of the participating justices concurring in the view that the Florida court’s decision did not contravene any established property rights.