The Yale Law Journal


The New Judicial Takings Construct

18 Feb 2011

[To] halt the law's evolution... would be to sever property's link to the culture it serves. In time, a static property regime would inevitably become an anachronism and would gradually be perceived as an obstacle to progress

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an “established” property right “no longer exists” may amount to an unconstitutional taking. The opinion draws on two fundamental themes of Justice Scalia’s property jurisprudence: the first is the notion of property as a prepolitical, immutable partition between individual interests and permissible government action; the second is a general distrust of the state courts that are tasked with declaring these individual property rights. The joining of these themes in the Stop the Beach Renourishment plurality opinion sits in stark contrast to the concurring opinions of Justices Kennedy and Breyer. These concurrences—Justice Kennedy’s rejection of the plurality’s approach in light of the adequacy of due process protections and Justice Breyer’s rejection of the plurality’s approach in light of concerns with unnecessary federal judicial interference in traditionally state matters—reflect a conception of property that finds some state court alterations of individual interests appropriate when changes in economic circumstances and social attitudes demand it.

After briefly articulating in Part I the division within the splintered opinions of Stop the Beach Renourishment,this Essay has two primary purposes. Part II compares the judicial takings standard established by the plurality to previous discussions of federal constitutional review of state court property declarations, both in prior judicial decisions and in the academic literature. Part III considers whether the plurality’s standard could be interpreted as applicable not only to state court decisions that allegedly result in a private-to-public reassignment of property, as the petitioners in Stop the Beach Renourishment claimed, but also to two additional instances: (1) adjudications of property disputes between two private parties or (2) any allegedly improper judicial change in nonproperty areas of law where damages would serve as the remedy. The Essay concludes that the plurality’s judicial takings standard arguably is inclusive of more state court rulings than any standard presented by earlier courts and commentators. Depending upon the breadth of its reach, this standard could serve to chill the common law system’s responsiveness to changing conditions.

I. The Facade of Unanimity: Dissonance on Judicial Takings at the Supreme Court

The dispute in Stop the Beach Renourishment emanated from Florida legislation that authorized publicly funded beach restoration. Most waterfront landowners welcomed this gratis protection from the erosive effects of hurricanes and other coastal storms, and for over forty years no one challenged the validity of the statute. However, in 2004, a small group sued the government, contending that they deserved compensation because the legislation took their antecedent right to retain exclusive access and proprietorship to the water’s edge. Moreover, they claimed that the law contradicted their entitlement to any future natural accretion.

The Florida Supreme Court determined that the landowners, despite their apparent assumption to the contrary, never had either of these alleged rights under Florida law. Therefore, the court held that the legislation implicated no property rights that could be taken in violation of the Takings Clause. The petitioners recast their challenge in front of the U.S. Supreme Court on the pioneering theory that the Florida Supreme Court so significantly reinterpreted state law that the Florida court’s decision, as a state act in and of itself, constituted a compensable taking.

Wading through a “jumbled mass of arcane [Floridian] waterfront law,” a unanimous U.S. Supreme Court explained that sudden “avulsive” events—landscape changes caused by both natural events, such as hurricanes, and artificial events, such as state beach restoration projects—do not change the property boundary. However, Chief Justice Roberts and Justices Thomas and Alito joined the separate opinion authored by Justice Scalia that is sympathetic to the petitioner’s argument that the judiciary is no less subject to the Takings Clause than are the other branches of government.

Justice Kennedy, joined by Justice Sotomayor, wrote separately to suggest that only when the Constitution’s Due Process Clause proves “somehow inadequate” to protect landowners from the judicial elimination of their existing property rights should the questions surrounding the need for and scope of a judicial takings doctrine be addressed. However, Justice Kennedy also wrote that judicial takings claims are “inconsistent with historical practice” and laced with procedural complexities. He suggested, in the end, that formulating a judicial takings doctrine “might give more power to courts, not less.” That Justice Kennedy thoroughly denounced a judicial takings doctrine for lack of any historical, substantive, or theoretical backing makes it surprising that he left any door open to the creation of such a doctrine in the future.

Though generally expressing grave doubts about the plurality’s judicial takings standard, Justice Breyer, joined by Justice Ginsburg, concurred in the judgment but found the issue of judicial takings “better left for another day.” Justice Breyer wrote that the plurality’s failure “to set forth procedural limitations or canons of deference would create the distinct possibility that federal judges would play a major role in the shaping of a matter of significant state interest—state property law.” The next Part of this Essay seeks to articulate the judicial takings standard set forth by the plurality and the due process tenets discussed in Justice Kennedy’s concurrence, and then to compare them with the standards previously proposed by courts and commentators.

II. The Scope of the New Judicial Takings Construct

Analyzing the relationship between the Due Process Clause and the Takings Clause in the context of property rights protections has long been an arduous task for judges and legal scholars. This analysis is further complicated when, as the Justices encountered in Stop the Beach Renourishment, the governmental action at issue is that of the judicial branch.Over the course of the past century, the U.S. Supreme Court has sent mixed signals on, but has never definitively decided, the issue of whether state court decisions declaring or redefining property rights raise federal constitutional questions and, if they do, how due process and takings protections might apply or interact.

The Due Process Clause requires that all levels of American government provide fair procedures and operate in a reasonable and nonarbitrary manner in pursuit of legitimate governmental purposes. The Takings Clause proscribes the government from taking private property “for public use, without just compensation.” The prospect of invalidating, on substantive grounds, a lower court ruling that alters a property right is not concerned with whether the court’s alteration of that property right requires the takings remedy of “just compensation.” Rather, the Takings Clause might require compensation—depending on the severity of the burden on private property rights and the distribution of that burden—only “in the event of otherwise proper interference,” that is, in the event that the governmental act is related to a “public use.” In other words, takings review necessarily accepts that the governmental entity has acted in pursuit of a valid purpose; to impose an obligation on the public to pay just compensation for an invalid governmental act that must be rescinded is counterintuitive.

Therefore, assuming some type of federal constitutional review is appropriate, it evidently is sounder to analyze claims of improper judicial property declarations under a due process theory than under a takings theory. A takings theory (and thus a compensation remedy) seems inappropriate because, unlike the political branches, the judiciary lacks the power to pay for and employ private property for public use through formal condemnation; therefore, the judiciary does not have the power to make a decision on whether to condemn. Use of the Due Process Clause’s substantive criteria to decide such cases provides some semblance of stability to property owners—by requiring that courts act in a nonarbitrary and reasonable manner—without placing too great a constraint on state judicial powers.

Justice Stewart arguably expressed a similar sentiment in his 1967 concurring opinion in Hughes v. Washington in asserting that the judiciary must be subject to some limits in redefining property laws. Though advocates of a judicial takings doctrine often cite favorably to Justice Stewart’s opinion in Hughes, it is not entirely clear whether Justice Stewart was relying upon due process canons, takings canons, or some hybrid of the two. He declared that a decision of the Washington Supreme Court represented such “a sudden change in state law, so unpredictable in terms of relevant precedents,” that the decision itself was unconstitutional.

After Justice Stewart’s veiled concurrence, the U.S. Supreme Court did not officially broach the issue of judicial takings until Stop the Beach Renourishment in 2010. However, in the intervening forty-three years, support for judicial takings gained steam in the academic literature, where authors proposed a variety of judicial takings tests. Interestingly, few departed substantially from that espoused by Justice Stewart.

Some scholars advocate for a judicial takings standard that is quite deferential to lower courts—one that is triggered only in those instances where a state court reached its holding without any “fair or substantial basis” but rather for the very purpose of subverting a federal constitutional claim. Others—proponents of a judicial takings standard that provides more stringent constraints on state courts—point to the work of Professor Barton H. Thompson, a former law clerk to Chief Justice Rehnquist. Yet even Thompson, despite his unambiguous support for a judicial takings doctrine, does not set forth a standard for prospective application that is significantly more demanding than the “fair or substantial basis” test.

In response to Justice Stewart’s insistence that the federal courts “ferret out” “sudden” and “unpredictable” rulings, Thompson suggests that they ask whether a state court decision “was neutral and fully considered its impact on property holders.” He then remarks that, for some, a more inclusive definition of judicial takings might be preferable—for instance, one that finds any change in the law that would “endanger the goal(s) of the takings protections” to be unconstitutional. However, he allows that any change that “seems to be a natural step in a slow but continuous evolution” should pass judicial takings muster. While Thompson may not have perfectly accomplished his stated goal of formulating a “relatively clear and high standard[] for prevailing on a judicial takings claim,” his article makes apparent his preference for a judicial takings test that is less inclusive than that presently applied to legislative or executive takings.

Justice Kennedy’s concurrence in Stop the Beach Renourishment—which perplexingly admits a possible need for a judicial takings doctrine if the Due Process Clause proves inadequate but then elaborates its dangers—suggests a due process test that, in assessing the state court decisions within its scope, seems akin to the moderate standards posed by Thompson. In a way, Justice Kennedy also echoes Justice Stewart’s Hughes concurrence by suggesting that the focus of constitutional review should be the extent to which a state court decision disturbs “settled principles.” Neither the standard articulated by Justice Kennedy nor those proposed by Thompson cast a shadow over state courts like the standard set forth by the Stop the Beach Renourishment plurality.

Writing for the plurality, Justice Scalia chastised Justice Kennedy for relying upon the “wonderfully malleable concept” of substantive due process. Yet beyond declaring that a judicial taking did not occur under the specific facts of Stop the Beach Renourishment, the plurality opinion falls prey to a similar malleability: it offers scant directives to future courts required to determine the bounds of “established” property rights that cannot be disturbed without implicating the Takings Clause. The remainder of this Part offers three conceivable interpretations of the plurality’s standard.

In one sense, Stop the Beach Renourishment sounds of the “fair or substantial basis” test that is quite deferential to state courts. For example, a unanimous Court suggests that possibly “state-created avulsions ought to be treated differently from other avulsions insofar as the property right to accretion is concerned.” However, what it saw as an “odd result”—that the petitioners’ property could be “deprived of its [oceanfront] character”—did not lead the Court to regard application of the State’s avulsion rule as violative of the Federal Constitution. This conclusion could suggest that although the plurality acknowledged that a judicial takings standard theoretically exists, it will never be found to have been violated in practice. Such an interpretation would rebuff claims that recent cases eliciting considerable property rights fervor could return the judicial takings issue to the Supreme Court for a more precise definition of the plurality’s standard and a successful application of it.

In another sense, the plurality’s test could be interpreted to fall in the middle of the aforementioned tests. It might very well be considered more inclusive of state court rulings than the exceedingly deferential “fair or substantial basis” test. But at the same time, Justice Stewart’s “unpredictability” test, Justice Kennedy’s related “settled principles” test, and the myriad tests offered by Professor Thompson all may compel greater federal court restraints on state courts than does the plurality’s test. This is so because the plurality opinion can be read to suggest that even the alteration of explicit state court precedent is not always sufficient to meet the “establishment” test. For instance, a modern state supreme court’s overruling of an older opinion of the same court may not rise to the level of reversing an “established” principle if the older opinion is not considered to be entrenched in the state’s common law because it was either too recently decided to be entrenched or too rarely applied as to be clearly established. In this light, the very state court decision at issue in Hughes v. Washington, where Justice Stewart’s concurrence gave rise to the modern debate over judicial takings theory, may not have violated the Stop the Beach Renourishment plurality’s standard given how recently the prior opinion from which it departed was issued.

However, while these two interpretations are possible, it is more likely that Justice Scalia’s test would in fact extend the reach of judicial takings potentially to include every judicial change to any previously declared property principle. Indeed, the plurality asserted that a judicial takings claim could succeed even where a change in common law was predictable or otherwise could have been anticipated in light of prior cases. The per se quality of the plurality’s standard in Stop the Beach Renourishment—in the words of Justice Scalia, its “definiteness”—is reminiscent of the categoricalrules for physical invasions and total economic wipeouts that infiltrated takings jurisprudence two decades ago but have been largely absent in more recent takings cases.

It is arguable that even recent landmark takings decisions by the U.S. Supreme Court actually could be classified as judicial takings under the Stop the Beach Renourishment plurality’s categorical standard. For example, the Court unanimously displaced one of its prior decisions, which had declared that whether a regulation “substantially advances” a legitimate state interest is an appropriate takings test. In another instance, the Court distinguished an eighty-year-old, factually similar takings finding by stating “circumstances may so change in time . . . as to clothe with such a [public] interest what at other times . . . would be a matter of purely private concern.” Ironically, the Stop the Beach Renourishment plurality’s standard may be so extreme that the standard itself constitutes a judicial taking.

Justice Scalia stated that the plurality intends to give the judiciary no “special treatment” in comparison to the other branches of government. If this is so, then one could argue that the traditional balancing test applicable to most instances where claimants allege legislative or executive takings should apply to claims of judicial takings in lieu of any new per se rule.

III. The Reach of the New Judicial Takings Construct

If constitutional review of state court property declarations is a takings issue as opposed to a due process one, it is not only the scope, but also the reach of the plurality’s new judicial takings standard that has yet to be precisely defined. The plurality apparently concurs with the sentiment that without a judicial takings doctrine, judges are able to “totally rewrite the law to expand government” at private property owners’ expense. But to what governmental expansions would the plurality’s standard apply? The first Section below analyzes the plurality’s implication that its standard may be applicable to cases that do not involve a reassignment of private property to the public. The second Section explores whether the plurality’s standard might even apply in the absence of any assignment of property at all.

A. Non-Private-to-Public Reassignments

The plurality first says that “[s]tates effect a taking if they recharacterize as public property what was previously private property.” This passage suggests that the alleged expansion of government against which the judicial takings standard protects is confined to situations where a state government deprives a private person of his property by reassigning it to the public trust and then claims that the private person never had those property rights in the first place. For an example of such a reassignment, proponents often point to state court decisions holding that some portion of privately owned dry sand beaches are impressed with public trust rights.

But the plurality later states that if “a court declares that what was once an established right of private property no longer exists, it has taken that property.” This passage raises the question of whether the plurality’s standard applies where a state court, in adjudicating an exclusively private dispute, clarifies a property rule in a manner that effectively results in a private-to-private reassignment. For instance, early common law prohibited the reservation of easements in favor of third-party beneficiaries because new rights could be held only by feudal lords. Would a declaration by a state supreme court that an easement can be reserved in favor of a third-party beneficiary—because the original purpose of the common law prohibition is outdated—“take” property from a purchaser who presumed such a reservation in a deed was void? Or would a declaration by a state supreme court that a trespasser need no longer believe in good faith that he owns the parcel that he is occupying to establish adverse possession in effect “take” that property from the original true owner?

Normatively, it is easy enough to suggest that these holdings should not effect takings; otherwise, it freezes evolution of the common law of property absent compensation. Even common law missteps, however troubling, would be difficult to correct without payment. Yet, by focusing only on the asserted depreciation in the value of the landowner’s property and paying little heed to state courts’ institutional role in declaring property rights, the plurality implies such results could occur in the federal courts.

The Stop the Beach Renourishment plurality suggests that the judiciary should be treated no differently from the other branches of government. Legislative actions that result in the reassignment of property from one private party to another are subject to the Takings Clause’s commands. Thus, to the extent that the plurality’s broad vision of a judicial takings doctrine is based on treatment of the branches as equivalent, the plurality’s standard may well be applicable to new rules announced in adjudications of disputes between private parties.

B. Nonproperty Disputes

It is also unclear whether the plurality’s “establishment” standard applies to reinterpretations of common law principles beyond the context of property law. The plurality noted that persons or entities that were not parties in the original state court case could challenge the decision in that case as a judicial taking in the lower federal courts. In such an instance, it seems that government intrusions, via any branch of government in any context, are to be constrained under the plurality’s judicial takings theory via third-party challenges.

This interpretation suggests that the plurality could extend this nonparty course to any state court rulings that involve an allegedly improper change in any area of law (including and in addition to property law) that retroactively provides a damages remedy. Again, normatively, it should not; otherwise, for instance, notorious changes in tort law, such as the decision of the New York Court of Appeals eliminating the privity requirement to allow tort suits against manufacturers or the New Jersey Supreme Court’s finding of landlord tort liability under the implied warranty of habitability for third-party criminal acts against tenants, would amount to unconstitutional takings. In effect, this would mean that any manufacturer or landlord that was not liable under the prior interpretations of the rules but is subject to damages retroactively under the new interpretations (at least as to those claimants against whom the statute of limitations had not yet run) might have a viable judicial takings claim. Yet the plurality’s opinion does not definitively foreclose even this type of injudicious application.

As one scholar has noted, some retroactive overruling is “endemic to the judicial process and is obviously required in any legal system that seeks to avoid being forever locked into ancient doctrines.” However, the plurality suggests that the fear of its judicial takings standard “depriving common-law judging of needed flexibility” has “little appeal,” for the Takings Clause was adopted when the “courts had no power to ‘change’ the common law.” Yet the plurality’s position might suffer from an important historical inaccuracy. The modern, stricter notion of stare decisis is of nineteenth century origin; it was understood at the time of the drafting of the federal Constitution in the eighteenth century that the judiciary served an important, continuous role in articulating and developing the law.

Paired with a view previously espoused by Justices Scalia and Thomas (both members of the Stop the Beach Renourishment plurality), this aversion to judicial flexibility to meet changing times and conditions, despite its historical flaws, could have broad ramifications. In Eastern Enterprises v. Apfel, decided prior to the Roberts Court, the Justices addressed a constitutional claim against a federal law requiring coal operators to pay premiums toward pension plans based upon the number of miners whom they had previously employed. While five Justices found the legislation at issue unconstitutional, they did not agree on a rationale. Justice Kennedy, concurring, declared the legislation violative of only the Due Process Clause. Yet Justices Scalia and Thomas joined a plurality opinion asserting that any law that retroactively creates unanticipated and nonconsensual monetary liability does not implicate the Due Process Clause but rather takes “property” in violation of the Takings Clause. One scholar recently echoed this view of Justices Scalia and Thomas in suggesting that even the right to sue warrants constitutional takings protection from governmental interference.

Merging the plurality opinion in Stop the Beach Renourishment—which both Justices Scalia and Thomas signed—with the implications of the earlier plurality opinion adopted by these two Justices in Eastern Enterprises yields a rather exceptional result.A judicial modification in a tort rule (or, for that matter, a rule in any other area of law where monetary relief is available) might well be considered “property” and thereby trigger the new judicial takings standard.


The plurality opinion in Stop the Beach Renourishment, which extends the reach of takings protections beyond legislative and executive actions to decisions of the judiciary, claims thatits judicial takings standard would continue to allow state court clarifications of existing state property law. However, the line between permitted clarifications and those reinterpretations of state law that amount to judicial takings is not readily discernible. The plurality’s novel theory—that a state court opinion finding that an “established” property right “no longer exists” may constitute a judicial taking—could prove to be dead on arrival, with future U.S. Supreme Court and lower federal court decisions continuing to allow state courts significant autonomy in declaring and redefining state property rights. Yet it is more likely that the plurality has set forth a new category of per se takings that may well send shivers through state courts. Justice Scalia’s opinion for the plurality exudes distrust for state court judgments on questions of state property law that arguably surpasses his previously espoused distrust for state legislative judgments on these same questions.

This suggestion emanating from the plurality’s opinion—that both new legislative restrictions and new common law restrictions are largely irrelevant to the definition of property—diverges significantly from the evolutionary view of the law asserted by the likes of Justices Holmes and Brandeis some eighty years ago. Further, if the plurality’s decision should, in the future, be applied to private-to-private reassignments, or, even more significantly, nonproperty disputes, Stop the Beach Renourishment could stand as the foundation for revolutionary new powers that would allow almost any private individual to challenge almost any civil state court decision as a taking in the federal court system. Seen in this light, the new judicial takings construct may very well threaten the ability of the law to adapt and evolve in the face of changing economic, environmental, social, and technological developments.

Timothy M. Mulvaney is an Associate Professor of Law at Texas Wesleyan University School of Law. He would like to thank Professors John Echeverria of Vermont Law School, Keith Hirokawa of Albany Law School, Hari Osofsky of the University of Minnesota Law School, Eduardo M. Penalver of Cornell Law School, and Marc Poirier of Seton Hall University School of Law for providing insightful comments on earlier drafts.

Preferred citation: Timothy M. Mulvaney, The New Judicial Takings Construct, 120 Yale L.J. Online 247 (2011),