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Uncertainties Remain for Judicial Takings Theory
Probate & Property
  • Timothy M. Mulvaney, Texas A&M University School of Law
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The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this instance, the case leaves the legal landscape at the intersection fo public and private property rights in a haze. This is because four Justices endorsed a “judicial takings” theory that, moving forward, would make the Takings Clause - “nor shall private property be taken for public use, without just compensation” - applicable to a new, broad set of circumstances.

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American Bar Association
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Citation Information
Timothy M. Mulvaney. "Uncertainties Remain for Judicial Takings Theory" Probate & Property Vol. 24 Iss. November/December 2010 (2010) p. 11 - 14
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