A recently-published Note from the Stanford Law Review: Josh Patashnik, Bringing a Judicial Takings Claim, 64 Stan. L. Rev. 255 (Jan. 2012). Here's the abstract:
This Note seeks to answer a set of questions prompted by the Supreme Court’s 2010 decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In that case, six Justices recognized that the Constitution provides some protection against so-called judicial takings—court decisions that, like executive and legislative action, might be deemed to take property rights. But the Court’s fractured holding provided little guidance on a handful of practical issues that will be of immense interest to potential judicial takings plaintiffs, like whether such claims can be brought in federal court and what remedies might be available. I argue that a judicial takings plaintiff should be able to bring her case in federal district court, notwithstanding the barriers the Supreme Court has erected that keep the vast majority of federal takings litigation in state court. I further argue that while the Eleventh Amendment likely precludes a federal court from awarding money damages in a judicial takings case, equitable relief—in the form of invalidation of the offending state court opinion—should be available.
The full article is posted here. We filed an amicus brief in the Stop the Beach Renourishment case, and followed it up with a short piece in the Vermont Law Review (posted here).
