The Complexities of Judicial Takings

Benjamin Barros*

When (if ever) a judicial action can be an unconstitutional taking of private property has long been an open question in American constitutional law. Nested within this larger question are a host of detailed issues concerning both substance and procedure. Despite passing references in some cases, and a more direct discussion in one concurring opinion, the Supreme Court of the United States—until recently—had never squarely addressed the question of judicial takings or the detailed issues that a judicial takings doctrine would present.

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*   Associate Professor of Law, Widener University School of Law, Harrisburg Campus. Thanks to Nestor Davidson, John Dernbach, and David Spohr, and to participants in faculty workshops at Widener University School of Law and Lewis & Clark Law School, for helpful comments.