Every Grain of Sand: Would a Judicial Takings Doctrine Freeze the Common Law of Property?
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a plurality of the U.S. Supreme Court endorsed the proposition that the Takings Clause of the Fifth Amendment might operate as a constraint not only on executive and legislative action, but also on judicial decisions. In a federal system in which property rights are established almost exclusively by state law, and in which the meaning of state law is determined by state courts, the notion of judicial takings raises several difficult questions. The question that is the province of this Note is whether a doctrine of judicial takings might somehow inhibit the development of the common law of property in state courts. This Note identifies two principal mechanisms by which that inhibiting effect might occur. First, the Court might insist on enshrining an authorized definition of constitutional property with certain approved, substantive features rather than simply leaving the content of property rights to be defined by state law. Second, the Court might ostensibly leave the development of property law to state courts while nevertheless adopting an overly aggressive posture in reviewing state property-law decisions: it might, in other words, be swift to hold that a state court decision had affirmatively changed, rather than merely explicated, the state law of property. This Note concludes that although the first possibility is nominally foreclosed by the Court’s commitment to positivism, when reviewing especially difficult or novel property cases the Court may nevertheless be tempted to patch together a definition of property that borrows from the traditional substance of the common law. And although the second possibility is not an implausible one, Stop the Beach Renourishment suggested that plaintiffs in judicial takings challenges should bear the burden of establishing the prior existence of the allegedly extinguished property right. That suggestion, this Note argues, may ultimately preserve a great deal of interpretive freedom for state courts in adjudicating less-settled questions of property law. The Court’s choices in these delicate areas will ultimately dictate whether judicial takings either preserves or imperils the common law of property.
David S. Wheelock,
Every Grain of Sand: Would a Judicial Takings Doctrine Freeze the Common Law of Property?,
61 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol61/iss2/4