Law Commons^™

Judicial Takings And Collateral Attacks On State Court Property Decisions, Stacey Dogan

Faculty Scholarship

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,1 the U.S. Supreme Court divided over the question whether takings alleged to have occurred as a result of judicial action should be treated identically to takings by legislative or executive actors. In this essay, we accept the plurality’s basic contention that it makes little sense to treat judicial takings of property categorically differently than takings by other branches of government. If a judge decided to condemn property for a highway project, for example, we agree with Justice Scalia that the Constitution would compel compensation, just as it does …