Academic journal article Constitutional Commentary

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

Academic journal article Constitutional Commentary

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

Article excerpt


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.


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. …

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