Symposium Looks at Constitutional Limits on Judicial Decisions that Alter Property Rights
Web Editor - Published: February 20, 2012
“You have to have a place to stand. You have to have a place to walk,” said Trevor Burrus, a legal associate at the Center for Constitutional Studies at the Cato Institute in a talk titled “Black Robes and Grabby Hands: The Need for Robust Protections from Judicial Takings.” His remarks came during the first panel at the Judicial Takings Symposium held on Widener Law’s Harrisburg campus on Friday, February 17th, 2012.

The Widener Law Journal, in conjunction with the Law and Government Institute, hosted the daylong event that brought together legal scholars from across the country to examine what Constitutional limits exist on judicial decisions that alter property rights. The symposium took an in depth look at whether courts could violate the Fifth Amendment’s Just Compensation Clause in the same way that courts have ruled certain legislative or executive actions do.

Following an introduction from Vice Dean Robyn L. Meadows, Associate Professor and Associate Dean for Faculty Research and Development D. Benjamin Barros – a noted property law expert who helped put the conference together – offered introductions.

Professor Juliet Moringiello moderated the day’s first panel, which in addition to Mr. Burrus included University of Maryland School of Law Professor Emeritus Garrett Power on “Property Rights, the Gang of Four, and the Fifth Vote” as well as Vermont Law School Professor John Echeverria on “Judicial Takings Revisited.”

While noting, “The Supreme Court has repeatedly said that state courts are the final expositors of state law,” Echeverria said, “My view is that we should abandon Judicial Takings.”

The second panel, moderated by Associate Professor Tonya M. Evans, featured Brooklyn Law School Professor Christopher Serkin on “Transition Relief from Judge-Made Law: The Incentives of Judicial Takings” and Seton Hall University School of Law Professor Marc Poirier on “Losing Monumentally: Why a Big Disappointment in Court Seems Like Judicial Taking But Isn’t,” as well as Barros himself.

“So the theme of this panel and maybe this entire conference is change,” Barros said during his remarks, “Easements, Necessity, and the Importance of Legal Change to Judicial Takings Claims,” which closed out the panel.

Following lunch, Distinguished Professor John C. Dernbach moderated a panel featuring University of Hawai'i at Mānoa William S. Richardson School of Law Professor Williamson Chang, Pace University School of Law Professor John Nolon, and Texas Wesleyan School of Law Associate Professor Timothy Mulvaney.

“Judicial Takings are like a weapon – a horrible weapon,” said Chang in his remarks, “Can Courts take Property? – The Hawaii Experience.” Professor Chang, who has done extensive work on water rights in Hawaii and represented Chief Justice William S. Richardson in a number of critical property rights cases, shared his experiences grappling with the issue of “Judicial Takings” in a number of cases he worked on in Hawaii.

The symposium concluded with the fourth panel, moderated by Barros. George Mason University School of Law Professor Steven Eagle spoke on “Takings and the Unitary State” and Pepperdine University School of Law Professor Shelley Saxer presented “Judicial State Action: Shelley v. Kraemer, State Action, and Judicial Takings.”