The Supreme Court's Takings Clause jurisprudence has evolved to require compensation, not just for eminent domain, but also for governmental regulations (1)--a shift that has roughly coincided with the Supreme Court's evolving understanding of the limits on state and federal government power. After the New Deal, the scope of constitutionally permissible exercises of governmental power has dramatically expanded. (2) Takings Clause jurisprudence, in developing from mere compensation for physical appropriations to cover various forms of regulatory takings, has functioned as an important safety valve (3) to the growing dominance of collective interests, enshrined into law at the expense of individual property rights. (4) The doctrine of judicial takings could serve a similarly important function in limiting the reach of lower courts that refuse to protect private property in their application of the law, but in order for the Court to instantiate a unified judicial takings doctrine, it must first settle a presuppositional question that has, perhaps unknowingly, deeply divided the Court in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (5)--namely, how should a court define property?
The Fifth Amendment to the Constitution states that "private property [shall not] be taken for public use, without just compensation." (6) The increasing number of regulatory encroachments on property by the modern state has not nullified the utility of the Takings Clause because the courts have adopted a more nuanced understanding what property actually is--a "bundle of rights," rather than a "thing." (7) The question of eminent domain is, "Has a physical object or plot of land been taken?" (8) But the question of regulatory takings is broader: "Have enough sticks in the bundle of property rights been taken so as to conclude that the thing in question has in effect been taken?" (9) The "bundle of rights" theory of property conceptually expands the reach of the Takings Clause. Consequently, just compensation is available to property owners in the face of a growing public sector, despite the fact that many government actions do not involve physical appropriations. (10)
Moreover, in developing the doctrine of "regulatory takings" over time, the Court has paid no attention to which branch of government effects the taking--the sum total of its concern has been whether private property has been taken for public use, in which case the Takings Clause applies. (11) Therefore, the proposed doctrine of judicial takings, proffered by Justice Scalia in his plurality opinion in Stop the Beach Renourishment, is actually a rather humdrum application of the doctrine of regulatory takings in the judicial context. (12) As Professor Ilya Somin put it rather succinctly, "Although the definition and enforcement of a judicial takings doctrine poses genuine challenges, these difficulties are fundamentally similar to those presented by other takings claims." (13) Nevertheless, both Justices Scalia and Kennedy in Stop the Beach Renourishment, writing separately, declined to explicitly define property in the same way as previous regulatory takings cases. Rather than focusing on essential characteristics of property, such as the right to exclude or use, the Justices deferred in varying degrees to state definitions of property. (14)
There are three potential approaches to defining property in a Takings Clause analysis. The first might be called the Positivist Approach, where the history of lower-court precedents, defining a state common law right as "A," are treated by the Supreme Court as dispositive on what property rights actually exist within the state, such that when the petitioner claims that his common law rights were actually "B" before the judgment, the Court must defer to the state court's interpretation and deny relief. The Positivist Approach is self-defeating, leading to what Professor Merrill calls the "positivist trap," (15) where the application of regulatory takings in the judicial context would become a theoretical impossibility. (16) Justice Kennedy flirts with this approach, as evidenced by his willingness to accept the right of state courts to "change" the common law. (17)
The second might be called the Undefined Approach, where the history of lower-court precedents, defining the common law rights as "A," are measured against the Court's own definition of what property rights, "B," existed before the judgment. In this approach, the Court reserves the right to define property in whatever manner it chooses. Justice Scalia adopts this approach, leaving open the question how "B" should be defined--either as an "established" common law property right, or something else entirely. (18)
The third might be called the Definitional Approach, where the history of lower-court precedents, defining the common law rights as "A," are measured against the Court's own definition of what objective property rights, "B," existed before the judgment. The Court here would define B neither as simply an "established" right at the state level, nor as merely something in which the claimant has a reasonable economic expectation. Instead, the Court would set forth a definition of property that includes primarily (1) objective, essential qualities of property, and secondarily (2) established principles of property within the state's judicial precedent. (19)
The Definitional Approach potentially resolves the dispute between Justices Scalia and Kennedy about whether to apply the Due Process Clause or the Takings Clause when something that looks like a judicial taking occurs. Moreover, it addresses the concerns and reservations held by both Justices in their opinions.
Justice Kennedy primarily fears that allowing courts to overturn settled common law principles, provided they give just compensation, would grant license to lower courts to ignore the common law. (20) However, the Definitional Approach would allow the Court to use a "sliding scale": ordinary judicial takings would receive compensation, while extraordinary judicial takings--those takings that are completely arbitrary or irrational--could simply be reversed as a matter of due process. This would satisfy Justice Kennedy's desire to prevent lower-court abuses, while rendering moot his arcane dispute with Justice Scalia over whether the common law can "change." (21) Likewise, Justice Scalia's fear of ad hoc substantive due process balancing tests (22) would be partially allayed, since only the most egregious takings of common law property rights would become the subject of a Due Process Clause analysis. (23) All other such takings would fall squarely within the Takings Clause, a more conceptually manageable rule. (24)
Justice Kennedy also fears the potential scope of judicial takings and the impact that the doctrine would have on the freedom of states to develop their common law of property. (25) Admittedly, the Definitional Approach would give judicial takings a generous reach; however, this reach would go no further than prior regulatory takings cases. (26) Moreover, providing compensation for judicial appropriations of property--those that, according to the sliding scale, stop short of an egregious overthrow of a common law right (27)--would not necessarily stifle common law development. Rather, compensation would force the government to pay property owners when a court refused to recognize property interests that were clearly definable, either by reference to essential characteristics of property or state judicial precedent.
The future of judicial takings may rest on the ability of the Court to define property in a robust and objective way. (28) Property has essential characteristics that make it easily identifiable, the most significant of which are the rights to exclude and use. However, even when a property right does not fit within a neat categorical definition, should that right have a long, well-established pedigree in state court precedent, (29) that property right is similarly within the capacity of the reviewing court to identify. And once it is determined that, prior to the judgment, the petitioners possessed a clearly defined property right, and that after the judgment, they were divested of that right, then a regulatory taking has occurred. Then the legal question boils down to compensation. In other words, the initial definitional question is essential to the question whether there is any judicial taking at all.
In this Note I propose a unified judicial takings doctrine that accounts for all of the relevant concerns dividing Justices Scalia and Kennedy in Stop the Beach Renourishment. Part I addresses the evolution of the Court's regulatory takings jurisprudence. Part II surveys the Court's definition of property in the Due Process arena. Part III analyzes the dispute between Justices Scalia and Kennedy in Stop the Beach Renourishment and proposes a compromise judicial takings theory--a "sliding scale" test--that might unify the two factions. Part IV addresses potential criticisms of the Definitional Approach.
THE DEFINITIONAL APPROACH IN TAKINGS CLAUSE DOCTRINE
Given that judicial takings would be a species of regulatory takings, (30) it is helpful to set judicial takings in the context of the Court's evolving regulatory takings jurisprudence. The story of judicial takings begins with the first ever extension of the Takings Clause from eminent domain to mere regulatory actions. The simplest application of the Takings Clause involves a physical appropriation of tangible property. It involves no philosophical speculation or conceptual line drawing--either a government has taken possession of property, or it has not. With eminent domain, property is very easily defined; it is a physical object or parcel of land. The owner is divested of every one of his property interests: to exclude, use, abandon, destroy, transfer, etc. However, the...