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NINOMANIA

:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Thursday, June 17, 2010 ::
    As we have said, if we were to hold that the Florida Supreme Court had effected an uncompensated taking in this case, we would not validate the taking by ordering Florida to pay compensation. We would simply reverse the Florida Supreme Court’s judgment that the Beach and Shore Preservation Act can be applied to the Members’ property. The power to effect a compensated taking would then reside, where it has always resided, not in the Florida Supreme Court but in the Florida Legislature—which could either provide compensation or acquiesce in the invalidity of the offending features of the Act.
    True dat. But the tone here is that of patience wearing thin, and of "Con Law 101" being reached for. Scalia took the same tone with O'Connor in his Webster concurrence, and though he was completely correct, the collegial feng shui was not so good.
    The only realistic incentive that subjection to the Takings Clause might provide to any court would be the incentive to get reversed, which in our experience few judges value.
    Yes, well, some of them are on the 9th Circuit. ;)

    :: David M. Wagner 9:46 PM [+] ::
    ...

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