Tahoe's Requiem: The Death of the Scalian View of Property and Justice

By Underkuffler, Laura S. | Constitutional Commentary, Winter 2004 | Go to article overview
Save to active project

Tahoe's Requiem: The Death of the Scalian View of Property and Justice


Underkuffler, Laura S., Constitutional Commentary


I. INTRODUCTION

In the two latest "takings" cases decided by the United States Supreme Court, (1) the string of recent victories by landowners against government seems to have come to an abrupt halt. Although Palazzolo v. Rhode Island (2) and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (3) were not unmitigated defeats for landowners, the Court's broad assumption in these cases that an ad hoc, balancing test should be used to resolve conflicting private and public claims in regulatory takings cases was certainly not what these landowners sought.

Of course, the idea that an ad hoc, balancing test might be used in takings cases is not new. For many years this approach has remained a residual doctrinal category into which cases not covered by the Court's other, per se rules (4) would fall. For instance, in Penn Central Transportation Company v. New York City, (5) the Court famously stated that a takings analysis involves "essentially ad hoc, factual inquiries" which weigh "[t]he economic impact of the regulation on the claimant" and the "character of the governmental action." (6) However, commentators have rightly sensed that the change wrought by Palazzolo and Tahoe is more than the simple return to prominence of a traditional idea. In Tahoe, in particular, the direct and emphatic nature of the Court's underscoring of this test signals more. Tahoe signals, in some fundamental way, a shift in the way that property rights and their protection are viewed.

In this article, I shall explore what this shift is and why it has so deservedly caught our attention. I will argue that beginning in the early 1990s, and continuing for a decade thereafter, what I shall call the "Scalian view" of property and its protection dominated Supreme Court takings jurisprudence. Under this doctrine, of which Justice Scalia was the principal architect, (7) the idea of property is a concrete, objectively knowable, and immutable legal barrier which marks the boundary between protected individual interests and the permissible exercise of government power. If government transgresses this line, the individual is (almost always) deemed to have been wronged. And compensation is required, as a matter of "justice," under the takings clause.

With the advent of Palazzolo and Tahoe, this doctrine collapsed. I shall argue that after these cases, no longer will the idea of property be deemed to mark, with certainty, the point where protected individual interests end and collective power begins. No longer will the fact of individual loss--even significant individual loss--necessarily compel the conclusion that a wrong has occurred. And no longer will justice, in takings disputes, be seen in only "compensatory" terms.

The sudden collapse of the Scalian view might be seen as an abrupt or startling turn. In fact, I shall argue that its collapse was a very predictable product of the Court's prior takings jurisprudence. Neither the Scalian view's idea of property nor its conception of justice could be sustained as the range of potential takings expanded and acknowledgment of the complexity of property conflicts grew. The very ideas that form the core of the Scalian view served to doom it, from the outset, as a viable juridical principle.

The collapse of the Scalian view was thus an entirely inevitable outcome. It is also, I shall argue, an entirely welcome outcome, in our effort to reassert sensible notions of takings and justice.

II. VISIONS OF PROPERTY AND VISIONS OF JUSTICE: THE RISE OF THE 'SCALIAN VIEW'--AND ITS FALL

In order to understand the changes that Palazzolo and Tahoe represent, we must first sketch the competing visions of property and justice that shadow takings cases, and how one--what I shall call the "Scalian view"--came to dominate the Supreme Court's approach to takings in the past decade.

Two philosophically divergent understandings of property and its protection can be identified in our popular and legal culture.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Tahoe's Requiem: The Death of the Scalian View of Property and Justice
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.