Fennell, Lee Anne, Notre Dame Law Review
III. JUDICIAL TAKINGS, ILLUSTRATED
My discussion to this point has been limited to takings (or alleged takings) by actors in the political branches. Can a court, by issuing a decision impacting property rights, also commit a taking within the meaning of the Takings Clause? This question was raised but not resolved in Stop the Beach, a case that involved a challenge by beachfront property owners to a Florida Supreme Court decision. (98) The U.S. Supreme Court unanimously held that the Florida Supreme Court had not committed a judicial taking. (99) The facts of the case are less important for our purposes than the disagreements that erupted among the Justices about the existence and possible contours of a judicial takings doctrine. A four-Justice plurality (Justice Scalia, joined by Chief Justice Roberts and Justices Alito and Thomas) whole-heartedly endorsed the idea of a judicial takings doctrine. The plurality maintained that a taking is a taking, regardless of which branch of government commits it. (100) The other Justices expressed doubts about the viability of such a doctrine, as well as concern about a number of procedural and remedial issues that would be raised it such a doctrine were recognized. (101) The result was an inconclusive mass of contradictory signals that has become, for property scholars at least, an endless source of speculation, concern, and fascination.
A primary worry expressed in the judicial takings literature to date is that an unconstrained doctrine could have devastating effects on the evolution of the common law of property. (102) Indeed, without any limiting principles capable of saving the ordinary adjudication of property disputes from takings scrutiny, the enterprise of recognizing judicial takings at all seems doomed from the outset. (103) Some might respond that the enterprise should be doomed--that judicial takings is a bad idea for a whole host of practical and conceptual reasons. But because four members of the Supreme Court have indicated a willingness to entertain judicial takings challenges, it is worth giving attention to the question of how such a doctrine might be limited. (104) Like others who have written on this topic, I will assume in what follows that there can be such a thing as judicial takings. However, I will suggest some plausible limiting principles that could make judicial takings something rarely encountered in the wild. (105)
These limiting principles emerge when we adapt the diagrams above to the judicial context. Three features are of particular importance. The first is the presence of two different, and differently policed, boundaries. The second is the category of confiscatory nontakings. The third is a feature notable for its absence in the earlier diagrams: a fourth category to add to the triad of no-go zone, free zone, and pay zone. Following Calabresi and Melamed, there must be (and is) a fourth possibility in which the government does not take if the would-be takee pays. Although this possibility has limited applicability to legislative and administrative takings, (106) it can play a significant role in judicial decisionmaking, as we will see. Each of these features suggests a set of potential limits on a judicial takings doctrine. In combination, they could render judicial takings a nearly null set.
My discussion here will be limited in two important ways. First, I focus only on how a judicial takings doctrine might be developed to govern stand-alone judicial decisions that alter or reinterpret property rights. For example, a court might make a pronouncement in a trespass case that affects the rights of many beachfront property owners, completely independently of any action by a legislature or agency. In contrast, many scenarios in which judicial takings challenges might arise (including Stop the Beach itself) involve judicial ratification of legislative or executive acts that themselves allegedly constitute takings. …