Ilya Shapiro (Cato Institute) and Trevor Burrus have posted Judicial Takings and Scalia’s Shifting Sands (Vermont Law Review, Vol. 35, Forthcoming) on SSRN. Here is the abstract:
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In this article, we examine the background of the judicial takings doctrine, discuss the Supreme Court’s ruling in Stop the Beach, react to that decision in light of Cato’s amicus brief, and contrast Justice Antonin Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.