Duke Journal of Constitutional Law & Public Policy
When the Supreme Court recently dipped its toe into longstanding debates about judicial takings in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the intimation that the Court might finally recognize the doctrine generated a wave of responses. Commentators concerned with the expansion of regulatory takings jurisprudence argued that it would be unwise to apply the Takings Clause to the judiciary; those inclined to defend a more vigorous application of the Clause, perhaps not surprisingly, saw a promising new avenue of vindication. It would be naive to argue that the Stop the Beach Renourishment plurality's logic could-or necessarily should-revive Shelley v. Kraemer's implicit promise of weighing a broader array of individual rights in property disputes. Nevertheless, the felt necessity remains for finding guidance in constitutional rights in the oversight of private property regimes that implicate equality, due process, free speech, and other values. Accordingly, that some measure of blurring between public and private is a logical consequence of the Stop the Beach Renourishment plurality may mean that a doctrine of judicial takings is worth defending for those concerned with Shelley's legacy.
Nestor M. Davidson,
Judicial Takings and State Action: Rereading Shelley after Stop the Beach Renourishment The Very Idea of Judicial Takings, 6 Duke J. Const. L. & Pub. Pol'y 75
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