Can Procedure Take?: The Judicial Takings Doctrine and Court Procedure
In considering the value of the judicial takings doctrine, this Comment argues that we should look to a new area of law: procedure. Courts often have the authority to set procedure, and they use this authority for substantive ends. This Comment argues that applying the Takings Clause to procedure demonstrates the value of the judicial takings doctrine. It argues that the Takings Clause, rather than the Due Process Clause, is the appropriate framework for certain forms of procedure. Under the Takings Clause, we can recognize the judiciary’s authority to use procedure for substantive ends while also offering “just compensation” to those unduly affected. In contending with the practical effects of “judicial-procedure takings,” this Comment argues that we can supplement the existing takings framework in two ways. First, we can look to intent: where the government intends to single out a particular set of property owners to bear a public burden, that should weigh in favor of finding a taking. Second, we can refine our analysis by focusing on whether the act has an element of aggregation. Where the court has combined discrete elements to create a result that is greater than the sum of its parts, that too should weigh in favor of a taking. By supplementing the existing test, we can better identify procedures that are functionally equivalent to traditional takings— without swallowing up the courts in the process.