2012 Annual Symposium
A symposium sponsored by the Widener Law Journal
“[N]or shall private property be taken for public use, without just compensation,” states the Fifth Amendment’s Just Compensation Clause. This Clause constitutes an important limitation on government power. Its exact scope, however, remains a topic of great debate. For example, the meaning of the phrase “public use” was at the heart of Kelo v. City of New London, 545 U.S. 469 (2005), where the Supreme Court of the United States controversially allowed the transfer of property from one person to another in the pursuit of “economic development.”
Another deeply contentious issue is deciding what kind of government actions fall under the scope of the Just Compensation Clause. Exercises of the power of eminent domain such as those involved in Kelo have always been understood to be canvassed within the Clause. In contrast, courts have long struggled with the issues of whether and when an exercise of a state’s regulatory police power might violate the Fifth Amendment’s takings protections.
Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), another recent Supreme Court decision, added a new layer of controversy Stop the Beach presented an issue that had previously been an obscure academic one: when, if ever, can an action by the state’s judiciary be an unconstitutional taking of private property? Recent Supreme Court precedent has established that some changes in property law made by the executive or legislature could be unconstitutional takings. Would the result be the same if the judiciary made the change instead?
By simply considering the issue, the Supreme Court made judicial takings a constitutional law hot topic. The way the Justices delivered fragmented opinions in Stop the Beach made the issue even more interesting. While the Justices agreed that no taking had occurred, they were deeply divided in their reasoning. No opinion commanded a majority of the Supreme Court on any of the open issues. The Supreme Court therefore dramatically raised the profile of judicial takings while leaving all of the important constitutional issues unresolved.
Due to its importance and status as a hot legal topic, the issue of judicial takings will be the focus of this year’s Widener Law Journal Symposium. The symposium will be organized by Professor Barros, a recognized expert in takings law, and Nicole Radziewicz, the Journal’s Symposium Editor, along with other members of the Journal’s Administrative Board. The Journal anticipates hosting the event, which will include presentations by many distinguished authorities on the topic of takings law, in February.