Cornell Law Review
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a plurality of the U.S. Supreme Court concluded that the Takings Clause of the U.S. Constitution prohibits the judiciary from declaring that "what was once an established right of private property no longer exists" unless the property owner in question receives just compensation. In this Article, we delineate the boundaries between a judicial taking and a violation of the Constitution's due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach. Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the State's action. The Due Process Clause is the more appropriate doctrinal pathway where the judiciary does not intend to appropriate a private owner's property rights on the State's behalf, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundations for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to under invest in high-quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat play or the government's involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) more amendable to attractive "comparative fault" inspired solutions.
Lior Strahilevitz & Eduardo Peñalver, "Judicial Takings or Due Process?," 97 Cornell Law Review 305 (2012).