In Search of a Judicial Taking
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. This Comment provides the only comprehensive analysis of the judicial takings case law since Stop the Beach in order to determine why no court has found a judicial taking. Based on this analysis of the case law, this Comment suggests that finding a judicial taking is all but impossible.
That conclusion does not mean that judicial takings doctrine has had no influence on property jurisprudence in the years since Stop the Beach. This Comment identifies three cases in which state courts have used the possibility of judicial takings as reasons not to make decisions that undercut property rights. In those cases, judicial takings doctrine functions as something akin to a canon of constitutional avoidance. If decided the other way, however, none of those three decisions would have amounted to judicial takings. By pushing courts away from decisions that they would otherwise adopt out of a concern for constitutional problems that never arise, judicial takings doctrine, in expectation, thus creates worse outcomes in property jurisprudence.