Additional links to chatter Re: SCOTUS and no taking in Stop the Beach

Below are links to additional blog posts and commentary regarding last week’s Supreme Court decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection, 08-1151.

• Cato Institute – Mixed Result in Complicated Property Rights Case – Ilya Shapiro writes that Justice Scalia’s opinion “makes clear that judicial takings are just as much a violation of the Fifth Amendment as any other kind.” Shapiro continues: “If a legislature or a court declares that what was once an established right of private property no longer exists,” Scalia writes for a four-justice plurality, “it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.” And the test for whether the government—any part of it—has committed a taking turns on “whether the property right allegedly taken was established.” (Similar to the posts/statement by PLF’s Timothy Sandefeur and James Burling, Shapiro highlights the Court’s dicta regarding judicial takings as something of a silver lining in an otherwise gray cloud.)

• The Daily Caller – Reasoned restraint: The Supreme Court and property rights – Second year law student Will Haun discusses judicial restraint. “’The Takings Clause only protects property rights as they are established under state law, not as they might have been established or ought to have been established,’ wrote Justice Scalia. To the majority then, the arguments of the property owners rested on a right never acknowledged under Florida property law, and it’s not the place of the judiciary to make one up. The 8-0 agreement on this point is a victory for judicial restraint, and the important role the legislature possesses in refining property law from its common law origins – a role recognized since Thomas Jefferson introduced Virginia legislation to abolish certain bloodline estates.”

• The University of Chicago Law School Faculty Blog – Stop the Beach Renourishment, Kelo, and the Future of Judicial Takings – Professor Lior Strahilevitz answers the question: “what happens if a common law court changes its state’s property laws somewhat?”

• The BLT: Blog of Legal Times – Stevens’ Recusal Makes Difference in Florida Property Ruling – Tony Mauro investigates Justice Stevens’ recusal and the shifting dynamics of the Court.

• The Volokh Conspiracy – So Why Not Roe? and A Funny Thing About “Substantive Due Process” – In both of these posts David Bernstein discusses Justice Kennedy’s argument in contrast to Justice Scalia’s opinion that “judicial takings” should be handled as a violation of due process.

And, some additional news articles are here:

• LA Times – Supreme Court rejects Florida beach owners’ claim
• NY Times – Supreme Court Rebuffs Homeowners in Beach Case
• NY Times OpEd – Common Sense and Private Property – Robert Thomas critiques this opinion piece in his blog here.

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