Stop the Stop the Beach Pluarlity

Abstract

approach threatens a breathtaking general expansion of regulatory takings doctrine beyond fact-sensitive, fairness-based approach canonized in Penn Central.64 Third, assuming that one can identify property rights, how would U.S. Supreme Court determine whether a state supreme court has an right? Whether property rights are established or eliminated are novel legal inquiries likely to be shaped by ideological inclinations of Supreme Court justices. In these cases, as in Stop Beach, state court will have denied that it has acted beyond its authority or changed law. Common law judges have long interpreted their precedents to create space for adaptation to new circumstances.65 The Proctor court, for example, extensively reviewed conflicting precedents on when a plaintiff would be entitled to an injunction for an encroachment, grounding its approach in a long tradition of equitable weighing of propriety of an injunction. It recognized the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach.66 The court concluded: Nothing in our holding today undermines fundamental property rights: it remains true that a landowner may generally obtain an injunction to eject trespassers. 67 Four justices dissented, however, feeling that majority had overruled a key precedent, dissolving [that decision's] strong protection of private property rights. 68 What justification could there be for U.S. Supreme Court to reinterpret state court's own precedents after nine state justices chosen by that state's political process have argued over proper meaning of state law to determine both contours of existing law and permissible freedom of interpretation? Surely good-faith differences of legal interpretation by judges trained in their state's common law and charged by their state constitutions with its preservation and adaptation do not give rise to federal constitutional objections. The Stop Beach plurality may be concerned about bad faith, such as deceptive decisions that do not employ ordinary legal reasoning (judicial decree) that other state institutions cannot remedy. But such concerns sound in due process because judicial decisions of that nature depart from rule of law and work an injustice regardless of interests deprived. The Court has long make an independent determination about what state rule is when there is doubt about its existence.