Why Judicial Takings are Unripe

Abstract

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Supreme Court considered without resolving whether a judicial decision reinterpreting property law could violate the Takings Clause of the Fifth Amendment. This Note focuses on ripeness and other procedural implications of the judicial takings concept because they present both practical and doctrinal problems. First, ripeness is important on a practical level because it presents a threshold justiciability hurdle for judicial taking claims. Second, the judicial takings concept seems fundamentally at odds with the judicial federalism underpinnings of the Court’s special ripeness rules for takings claims. The Court has essentially forced all federal takings claims into state courts on the premise that they offered an adequate forum, but now the judicial takings theory would prop back open the federal courthouse doors to check purported state court abuses. This Note concludes that, until the Supreme Court reconsiders its special ripeness rules from Williamson County Regional Planning Commission v. Hamilton Bank, lower courts should strictly apply the state litigation requirement and limit judicial takings claims to state courts with the possibility of certiorari review when parties properly raise those claims below. This approach would achieve the desired outcomes of a judicial takings doctrine - forcing state courts to recognize the risk of altering property rules and improve the quality of their decisions - while remaining faithful to the practical requirements and policy rationales of the Court’s current ripeness jurisprudence.