University of Miami Law Review


In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), the U.S. Supreme Court granted certiorari to determine whether the Florida Supreme Court had violated a group of littoral property owners’ Fifth Amendment rights—or committed a “judicial taking”—by upholding the state of Florida’s Beach and Shore Preservation Act. Under the Act, the State is entitled to ownership of previously submerged land it restores as beach; this is true even though the normal private/state property line, the mean-high water line, is moved seaward, and the affected littoral owner(s) lose their right to have their property about the water. Although a four-justice plurality led by Justice Scalia held that that the Florida Supreme Court did not violate the Fifth Amendment in this instance, the plurality recognized that it is unconstitutional for any branch of state government to declare that what was once an established private property right no longer exists without providing just compensation. In so doing, the plurality appears to endorse a judicial taking doctrine. This Article explores the institutional and policy ramifications of such a doctrine—ultimately concluding that the due process analysis advocated by Justice Kennedy in concurrence is a better doctrinal mechanism to corral wayward judges. After exploring the procedural and federalism concerns raised by a judicial takings doctrine, the Article hypothesizes the viewpoints of several famous deceased takings scholars. The Article then evaluates the position of living taking scholars Eduardo M. Penalver and Lihor Strahilevitz, whom propose a flexible approach that considers Takings Clause and due process analysis on a case-by-case basis.