Stop the Reach: Solving the Judicial Takings Problem by Objectively Defining Property

INTRODUCTION 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. …