74 Am. U. L. Rev. 267 (2024).

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Abstract

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Justice Scalia’s plurality opinion held that the Takings Clause is not addressed to a single government actor, but rather applies to all government actions, including those effected by the judicial branch. Consequently, regardless of which branch affects the taking, just compensation is required. Despite promulgating the existence of judicial takings, the Court then went on to say that no established property right was “taken” for Fifth Amendment purposes. Without an application or a clear-cut delineation, Justice Scalia’s promulgation of judicial takings was rendered as merely advisory to future cases. Essentially, Stop the Beach created only a literal and legal line in the sand.

This Comment argues that to constitute a judicial taking, the court holding must consist of a change in established rights and a transfer to a public beneficiary. First, a change in the established right is assessed by the property owner’s expectations of the outcome of the case. These expectations are established either by precedent or common law. Thus, a rejection or overruling of the prevailing law in the jurisdiction will constitute a taking. Further, in determining what constitutes a judicial taking, a necessary element is the beneficiary of the transfer. Either a transfer directly to a private entity, or a transfer favoring public policy and public rights will qualify. Finally, the government’s purpose is integral in assessing whether a private-to-private transfer qualifies as a taking. When a court is acting in favor of forward-looking policy, rather than merely arbitrating between the current parties, this is a taking. Applying these principles to prior court holdings, this Comment concludes that the Court has discernibly affected judicial takings before; these cases just were not categorized as such.

* Note and Comment Editor, American University Law Review, Volume 74; J.D. Candidate, May 2025, American University Washington College of Law; B.A., Political Science and History, December 2021, University of Delaware. This Comment would not be possible without my friends, family, and colleagues for their continuing support and encouragement. I would like to thank my advisor, Ezra Rosser, and my editor, Matias Valenzuela, for their expertise and encouragement throughout this journey. Finally, thank you, especially to my parents, without whom my achievements would not be possible.