Missed Opportunities, Good Intentions: The Takings Decisions of Justice Antonin Scalia
| Author | Richard A. Epstein |
| Position | Laurence A. Tisch Professor of Law, New York University School of Law; The Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; The James Parker Hall Distinguished Professor of Law Emeritus and Senior Lecturer, The University of Chicago |
| Pages | 109-135 |
Missed OppOrtunities, GOOd intentiOns:
the takinGs decisiOns Of Justice antOnin scalia
Richard A. Epstein*
University of Chicago
ABSTRACT
The late Justice Antonin Scalia sensibly pushed his powerful originalist agenda as a
bulwark against activist justices of any persuasion from enacting their policy preferences
into law. But while this commitment to originalism may explain what the justices should
not do, it does not explain, afrmatively, how they should interpret constitutional texts
in accordance with the originalist agenda. One area in which this is most critical is
the law of takings, which polices the boundary line between private rights and public
power. Here it is necessary to integrate explicit constitutional provisions dealing
with the terms “taken,” “private property,” “just compensation,” “public use,” and
the implied “police power” into a coherent whole. The law of takings is relatively
straightforward when the government takes private property into public possession.
But it is far more difcult to explicate when private parties retain some interests in
property after the government either occupies or regulates the use and disposition of
the rest. Justice Scalia’s application of takings law to such cases of divided interests
has fallen short in four key contexts: the permitting process in Nollan; rent control in
Pennell; development rights in Lucas; and environmental protection schemes in Stop
the Beach Renourishment. In these cases, Justice Scalia often reached the right result
for the wrong reasons, often on ad hoc grounds. The correct analysis requires a far more
thoroughgoing protection of private property interest in the context of both regulatory
and possessory takings. This article explains how he should have handled these missed
opportunities.
CONTENTS
Br. J. Am. Leg. Studies 6(1) (2017), DOI: 10.1515/bjals-2017-0007
© 2017 Richard A. Epstein, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Laurence A. Tisch Professor of Law, New York University School of Law; The Peter and
Kirsten Bedford Senior Fellow, The Hoover Institution; The James Parker Hall Distinguished
Professor of Law Emeritus and Senior Lecturer, The University of Chicago. My thanks to
Philip Cooper and Julia Haines, University of Chicago Law School, Class of 2017 for their
usual excellent and prompt research assistance.
i. intrOductiOn ...............................................................................................111
ii. nOllan v. califOrnia cOastal cOMMissiOn .............................................. 115
iii. pennell v. city Of san JOse. ...................................................................119
iv. lucas v. sOuth carOlina cOastal cOuncil ............................................ 123
A. Background ......................................................................................... 123
B. The Prima Facie Taking ......................................................................124
6 Br. J. Am. Leg. Studies (2017)
C. Police Power Justications .................................................................. 127
v. stOp the Beach renOurishMent ................................................................132
vi. cOnclusiOn ..............................................................................................135
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