If, on the other hand, judicial decisions merely declare the law as it has existed - that is, if judges only ever find law - then a judicial takings doctrine is conceptually hollow, for the simple reason that an overruling declares that the claimant did not have a property right to be taken in the first place. If common law judicial decisions themselves establish novel property rights - that is, if judges make new law - then the concept of a judicial taking is conceptually sound, at least in terms of jurisprudential philosophy.
This Note does not consider the merits of a judicial takings doctrine outside of this conceptual point. As this Note argues, the viability of a judicial takings doctrine depends critically on the nature of common law adjudication. The Stop the Beach plurality followed in Erie’s footsteps in assuming all state courts were making law.Ī judicial takings doctrine that perpetuates Erie’s jurisprudential assumptions risks exacerbating its error. Ironically, while grounding its constitutional holding in the independence of state courts from federal interference, Erie at best assumed and at worst mandated a particular jurisprudential philosophy for state courts. the Court derisively dismissed the declaratory theory of common law in favor of legal realism, abolishing federal general common law in the process. While Stop the Beach broke new ground in judicial takings, its understanding of jurisprudence did not chart new territory so much as continue along the trail blazed by Justice Holmes in the early twentieth century and followed by a majority of the Court in 1938. By categorically assuming that all state courts are making law, Stop the Beach set a course for judicial takings that would impose federal judges’ views of jurisprudence onto state courts. The judicial takings doctrine advocated by the Stop the Beach plurality poses a serious risk to the autonomy of states and state courts to adhere to their preferred jurisprudential philosophies. This Note serves as a cautionary flag as the Court continues to develop its understanding of judicial takings. offered the most robust analysis of a potential judicial takings doctrine but left the question open, with four Justices in favor of the doctrine and four Justices declining to reach the issue. Florida Department of Environmental Protection, 2 × 2. Its most recent encounter, Stop the Beach Renourishment, Inc. This invites the question: What about the third branch? When a court overrules a prior declaration of common law property rights, has it “taken” property? The Supreme Court has wrestled with the question of judicial takings but has yet to give a decisive answer. Traditionally, takings claims have not expanded beyond actions performed by the political branches of government. The Takings Clause protects against governmental takings of property without just compensation.