Nicole Stelle Garnett (Notre Dame Law School) has posted Justice Scalia's Rule of Law and Law of Takings (41 Vermont Law Review 717 (2017)) on SSRN. Here is the abstract:
This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.
And here is the introduction:
The United States Supreme Court decided more than two dozen cases raising Fifth Amendment “takings” claims during Antonin Scalia’s 30-year tenure. By my count, Justice Scalia authored only three of the majority opinions in these cases (and one of them was partially a plurality opinion), although he joined the majority in most of the rest. Somewhat surprisingly, Justice Scalia authored only one dissenting option in a takings case during his 30 years on the Court,3 along with a handful of concurrences. The members of this panel have been assigned the task of assessing the impact of these opinions on the Court’s takings jurisprudence. I strongly suspect that, as the sole conservative on the panel, the group implicitly assigned me the role of defending Justice Scalia’s decisions against charges of unprincipled judicial activism. I am happy to embrace that charge, although my assessment of Justice Scalia’s opinions falls slightly short of a full-throated defense.
My answer to the question posed to the panel: Justice Scalia’s decisions had a modestly significant impact on takings law. He penned the majority opinion in two of the most significant cases in recent years, Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council.5 As expanded in subsequent decisions, Nollan arguably has proven the most significant in terms of real-world impact. But, the extent of that impact is largely the result of subsequent exactions opinions that Justice Scalia joined but did not author. Lucas, on the other hand, is more interesting as a matter of constitutional and property theory than Nollan, but subsequent decisions have arguably limited the opinion’s impact. Justice Scalia’s opinions—especially several of his concurrences and one dissent from a denial of certiorari—also anticipated important aspects of the future trajectory of the Court’s takings jurisprudence.
My assessment of whether these opinions diverge from the jurisprudential principles that guided much of Justice Scalia’s work on the Court is mixed. Justice Scalia was an “original meaning” originalist who loosely adhered to the principle of stare decisis, and strongly preferred clear legal rules over vague standards.8 Takings questions pose a particular challenge for originalists, including myself, because so little is known about the original meaning of the Takings Clause. And they also pose a particular challenge for jurists who, like Justice Scalia, favor clear, generalizable rules over fact-dependent balancing tests. After all, the question of whether government regulation “goes too far” is about as vague and fact-specific as legal questions come.9 In light of these difficulties, and Justice Scalia’s jurisprudence, I think that some of Justice Scalia’s takings opinions (e.g., Lucas) are more “principled” than others (e.g., Nollan).
RELATED: This earlier post on regulatory takings and originalism.
Posted at 6:53 AM