Once in a while we lift up from the trenches of litigation and ponder the metaphysical questions of law, like how much would could a woodchuck chuck, if a woodchuck could chuck wood?

Robert Thomas, Tred Eyerly and I filed an amicus curiae brief in the case of Stop the Beach Renourishment v. Florida Dep't of Environmental Protection.  We were recently asked to submit an essay to the Vermont Law Review analyzing the property rights impacts of the decision.

More when we publish, but as a hook to grab your interest, a Justice Scalia quote:

Justice Breyer must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.

Our introduction:

Eighty-four years after the Supreme Court acknowledged that an exercise of governmental authority other than the eminent domain power could be a taking, it appears the search for what might fit the bill has devolved from "the lawyer’s equivalent of the physicist’s hunt for the quark" to the riddle of a nursery rhyme. Having now acknowledged Justice Scalia’s reference to one of the most unlikely phrases ever turned in a Supreme Court opinion, we can move on to the more intriguing questions presented by Stop the Beach Renourishment v. Florida Department of Environmental Protection, the case in which the Court came tantalizingly close to answering the most metaphysical of legal issues: can a state supreme court decision "take" property when it changes state law?

The case held out the promise of providing long sought guidance about whether a state’s exercise of judicial power is constrained by the Takings Clause, but ultimately fell one vote short. Six justices agreed that in certain circumstances, a state supreme court’s recharacterization of property from private to public would violate the Constitution; the four-justice Scalia-led plurality concluded it would be a Takings Clause problem, while Justice Kennedy, joined by Justice Sotomayor, saw it as involving the legitimacy of the state court’s action – in other words, substantive due process. Justice Breyer, joined by Justice Ginsburg agreed there was no judicial taking in the case, but demurred on expressing any opinion of when there would be.

. . . .

No doubt the fractured opinions in the case will be a boon for academics who may continue the search for the takings quark (if not woodchucks) in the pages of law journals. But what about practitioners laboring in the trenches of takings law in the courts, struggling to determine whether a state supreme court’s decision changed the law in a manner such that, from the property owner’s perspective, the state might as well have exercised eminent domain and taken it? In this essay we will attempt to provide a view of how we see the issue, focusing on the Scalia plurality opinion and the PruneYard case, the only other case where the Court has expressly weighed in on the judicial takings question. We conclude with a suggestion of how PruneYard and the plurality opinion in Stop the Beach Renourishment may provide a roadmap for asserting and winning a judicial takings claim.