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Abstract

The future of judicial takings may rest on the ability of the Court to define property in a robust and objective way. Property has essential characteristics that make it easily identifiable, the most significant of which are the rights to exclude and use. However, even when a property right does not fit within a neat categorical definition, should that right have a long, well established pedigree in state court precedent, that property right is similarly within the capacity of the reviewing court to identify. And once it is determined that, prior to the judgment, the petitioners possessed a clearly defined property right, and that after the judgment, they were divested of that right, then a regulatory taking has occurred. Then the legal question boils down to compensation. In other words, the initial definitional question is essential to the question whether there is any judicial taking at all. In this Note I propose a unified judicial takings doctrine that accounts for all of the relevant concerns dividing Justices Scalia and Kennedy in Stop the Beach Renourishment.

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