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Counting votes and discounting holdings in the Supreme Court's takings cases.

The regulatory takings issue is notoriously muddled.(1) Dramatically opposing views regarding the proper relationship between private property and government regulation consistently have polarized scholarly debate.(2) The Supreme Court today seems no less splintered on the issue's proper resolution than it was when it first embarked down the regulatory takings path with Justice Holmes's opinion for the Court in Pennsylvania Coal Co. v. Mahon,(3) from which Justice Brandeis sharply dissented. The Court's regulatory takings decisions are among its most contentious. Many are decided by closely divided votes.(4) Individual Justices seem to waver with regularity on the issues, prompting majorities in one case to become dissents in another, and vice versa, thereby further deepening the precedental confusion.(5)

This Essay focuses on a dimension of the regulatory takings issue that has received relatively little attention in what is otherwise a vast amount of literature on the topic: Why the Court is so persistently splintered and its precedent so seemingly schizophrenic. Most academic discussion has focused on the sheer difficulty of reconciling the public's firmly held conception of sacrosanct private property rights with the public's increasing demand for restrictions on the exercise of those same rights when they affect others adversely.(6) This Essay's thesis is that reasons for this phenomenon exist beyond those that have dominated the ongoing academic discourse. These additional reasons are best revealed by piercing the popular fiction that the Court is a monolithic institution. The Court's decisions should instead be read keeping in mind the fact that the Court is simply nine individual Justices who speak through the voice of shifting coalitions of at least five Justices.

Such a piercing of the Court's judicial veil offers three lessons about regulatory takings. First, it suggests the propriety of discounting the import of the Court's precedent in individual cases and the futility of reconciling what may be, at bottom, irreconcilable rulings. Advocates and legal academics who ignore this lesson routinely conflate the significance of the Court's precedent in takings cases.

Second, by identifying the underlying reasons for the Court's splintering and shifting majorities, students of the regulatory takings issue, as well as members of the regulatory and regulated communities, can appreciate better the full dimensions of the issue. By examining the votes of individual Justices in each of the cases, the questions asked at oral argument, and the arguments made in the briefs, one discovers the full panoply of factors that have influenced the Justices in takings cases. These factors extend beyond the traditional debate between prepolitical and civic conceptions of property. By tugging in an oppositional fashion at the Justices, these factors implicate a host of crosscutting issues that make maintaining the development of a stable majority on regulatory takings issues especially difficult.

Finally, a more focused examination of the individual Justices suggests the kinds of arguments that a new majority coalition of Justices now on the Court might find acceptable. Justice Kennedy will be the decisive vote in the establishment of this new majority, and pragmatism will need to replace adherence to purist principles in any advocacy designed to promote an analytical framework capable of being embraced by a new majority led by Justice Kennedy.

This Essay consists of three parts, followed by a brief conclusion. The three parts roughly mirror the three lessons to be learned in undertaking a closer examination of the reasons why the Court's regulatory takings precedent exhibits such conflict and doctrinal instability. First, the Essay describes the general benefit gained from thinking of the Court as nine distinct Justices in analyzing the Court's precedent, with illustrations from the Court's takings precedent. Next, in an effort to identify the wide-ranging factors that actually are at work in establishing a majority on the Court in particular cases, the Essay explores a variety of source materials, ranging from opinions of individual Justices to oral argument transcripts to the briefs of the advocates themselves. Finally, the Essay makes a preliminary attempt to identify an analytical framework for the regulatory takings issue that, although lacking purity of principle and perhaps bordering on the nihilistic, may provide instead the level of pragmatism necessary to strike an acceptable balance between opposing views.


Supreme Court lore reports that Justice Brennan would ask his new law clerks to identify the single most important rule of constitutional law. Following a heated debate, with each law clerk undoubtedly seeking to impress the Justice with his or her profound understanding of federal constitutional law, Justice Brennan reportedly would announce them all wrong. The most important rule, he would declare, is the "rule of five"--i.e., the Court decides cases by a majority vote of at least five Justices.(7) Justice Brennan reportedly practiced what he preached. Upon his resignation from the Court, many testified to his special ability to forge surprising majority coalitions in controversial cases.(8)

The regulatory takings cases illustrate well the importance of the "rule of five." Many of the decisions have only five Justices joining the majority opinion, and there has been no consistent majority.(9) The difference between the majority and dissent has been stark, just as it first was in Pennsylvania Coal Co. v. Mahon.(10) The reasoning of the majority in one case becomes that of the dissent in the next (and vice versa)--sometimes with very little time separating the Court's changing decisions.

Consider, for example, the Court's famed 1986 Term takings trilogy, wherein the Court decided in rapid succession three significant regulatory takings cases: Keystone Bituminous Coal Ass'n v. DeBenedictis,(11) decided in March, and First English Evangelical Lutheran Church v. County of Los Angeles(12) and Nollan v. California Coastal Commission,(13) both decided in June. Keystone Bituminous and Nollan are rooted in wholly incompatible notions of the relationship between private property and police power regulation.(14) Although to a lesser extent, it is similarly difficult to square the jurisprudential underpinnings of First English with the Court's ruling in Keystone Bituminous.(15)

If one views the Court as a monolith, it is very difficult to discern the theory that unifies these three rulings. The Court certainly makes little, if any, effort to do so. If one instead views the Court as reflecting coalitions of individual Justices, the picture becomes more clear. Justice White was the only Justice in the majority in all three cases, but he wrote none of the opinions for the Court;(16) nor did he write any separate concurring opinions. It is therefore more important to ask what made a difference for Justice White in these cases than to undertake a fictional inquiry into the Court's unifying theory in support of these three rulings.

Examining the votes of individual Justices also suggests the real possibility that one of the most discussed of regulatory takings cases in recent years, Lucas v. South Carolina Coastal Council,(17) no longer represents viable precedent, at least in the United States Supreme Court. As in many of the regulatory takings cases, only five Justices joined the Court's majority in Lucas.(18) Justice White was, again, the decisive vote. What very few have remarked upon, however, is that Justice White announced his resignation from the Court less than a year after Lucas was decided.(19)

Hence, the slim Lucas majority vanished almost upon its arrival. There are no longer five Justices on the Court who clearly support Justice Scalia's rationale. Yet, commentator after commentator insists on treating Lucas as weighty precedent, without remarking on its current vulnerability.(20) Lucas is, of course, entitled to dispositive weight in the lower courts. Those courts are supposed to adhere to Supreme Court precedent until it is modified formally,(21) no matter how clear it may be that shifts in the Court's composition will prompt its undoing as soon as the Court again addresses the issue. The Supreme Court is not similarly circumscribed.(22) In the Supreme Court, one should expect Lucas to receive a very narrow reading.

Indeed, the litigation before the Court in Lucas reflected a similar development. The Court's decision in Keystone Bituminous provided those defending the South Carolina Coastal Council with seemingly powerful precedent in support of the challenged South Carolina coastal development law.(23) The holding in Keystone Bituminous seemed unequivocal; the Court largely limited Pennsylvania Coal to its facts, concluding that a taking had not occurred and that the state can properly exercise its police power "to abate activity akin to a public nuisance."(24) All of the litigants before the Court in Lucas, however, were well aware that despite its recent vintage, Keystone Bituminous was shaky, and therefore risky, precedent upon which to rely. At the time that Lucas was decided, the Court consisted of three Justices (Stevens, White, and Blackmun) from the Keystone Bituminous majority and three (Rehnquist, Scalia, and O'Connor) from the dissent. At least two (Thomas and Kennedy) of the three new Justices seemed inclined to follow the Keystone Bituminous dissenters.(25) For this reason, it was risky for government lawyers in Lucas to rely heavily on Keystone if they hoped to obtain Justice O'Connor's vote. Although they needed the vote of Justice White, who was in the Keystone majority, government lawyers could not afford to alienate Justice O'Connor. Such alienation might have resulted, however, if their advocacy left an impression that accepting their argument required Justice O'Connor to embrace the Court's ruling in Keystone, from which she recently had dissented. Accordingly, neither the brief filed by the South Carolina Coastal Council nor the brief filed by the United States as amicus curiae, made Keystone a centerpiece of its argument.(26)

The same strategic considerations should now be present for any party making a regulatory takings claim before the current Supreme Court. The more the party links the merits of its claim to the Court's decision in Lucas--which is what most advocates would naturally do--the more that party would risk losing its case before the Court. The "rule of five" is unforgiving; you need five votes. There are, at most, only four votes on the current Court (Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas) to support the reasoning of the majority in Lucas.

Further, no reason exists to suppose that either of the two Justices who have joined the Court since Lucas was decided (Justices Ginsburg and Breyer) is likely to vote with the four Justices left from the Lucas majority. Quite the opposite conclusion is instead likely to be true.

In Dolan v. City of Tigard,(27) a case that Justice Kennedy (who provided the fifth vote) thought was easier than Lucas for the plaintiff property owner,(28) Justice Ginsburg refused to join the four Justices left from the Lucas majority. She instead joined the dissenting opinion filed by the same Justices who dissented similarly in Lucas.(29)

Although Justice Breyer has not yet participated in a regulatory takings case, his testimony on the takings issue during his confirmation hearings provides little comfort to future plaintiffs bringing regulatory takings claims. Justice Breyer essentially turned Pennsylvania Coal on its head. He asserted that the Takings Clause should not "go[ ] too far" so as to present obstacles to reasonable government regulation of private property.(30) Like the dissenters in Dolan,(31) Justice Breyer equated aggressive readings of the Takings Clause with the Lochner era, contending that each suffers from a common flaw: seeking to read into the Constitution a specific economic theory.(32) Justice Breyer maintained that the Constitution cannot and does not contain such a theory. Rather, economic theories are a "function of the circumstances of the moment. And if the world changes so that it becomes crucially important to all of us that we protect the environment, that we protect health, that we protect safety, the Constitution is not a bar to that . . . "(33)

To be sure, the Court does not abandon precedent routinely whenever there is a shift in the composition of the Court. There is properly much force in the notion of stare decisis, albeit less in judicial interpretation of the Constitution than in construction of statutory provisions. Much of the Court's precedent remains good law, despite the fact that it is likely that today's Court would approach the same issues very differently were the individual Justices to address the issues in the first instance.

The Court's regulatory takings precedent, however, exhibits no such judicial hesitancy to strike out anew. The Court instead routinely has ignored recent rulings. The Court also has read its own decisions very narrowly. That is the likely fate of Lucas should the current Court revisit the issue. Although Justice Kennedy concurred in the judgment of Lucas,(34) which vacated the lower court's ruling and remanded the case for further proceedings, there was a tremendous gulf between his rationale for doing so and that of Justice Scalia's majority, which Justice Kennedy pointedly declined to join.

Justice Kennedy rejected in its entirety the majority's foundational claim--that background principles of the common law, such as nuisance law as applied by judges, provide an exclusive touchstone for excusing a police power measure that severely restricts the use of privately owned land.(35) Kennedy insisted that such common law doctrine should not be "the sole source of state authority to impose severe restrictions."(36) He affirmatively asserted that on especially fragile ecosystems a state must be able to restrict development and use more severely "than the common law of nuisance might otherwise permit," without triggering the Fifth Amendment's just compensation guarantee.(37)

There is no reason to suppose that Justice Kennedy's refusal to join the Lucas majority was undertaken lightly. Justice Kennedy is not a Justice who routinely writes separate concurring opinions that concur only in the judgment. He does so occasionally, generally joining his conservative colleagues' opinions, as he has done in other regulatory takings cases.(38)

Justice Kennedy also has declared publicly his strong inclinations in favor of an aggressive reading of the Fifth Amendment's Just Compensation Clause for the protection of private property rights. In a speech delivered not long before Lucas came before the Court, he recognized the clash between the Lockean, prepolitical, natural rights conception of private property and the Hobbesian view that property rights emanate exclusively from the State.(39) Justice Kennedy commented specifically on the Court's reluctance since Lochner to take an active role in defending property rights and speculated that it was time for the Court to return to that role to ensure that the right to private property does not become a "second-class right": "[P]roperty provides the structural vehicle through which we can protect ourselves against a blueprint for the future being imposed by government . . . ever hungry for self-aggrandizement."(40)

Consequently, Justice Kennedy's decision not to join the Lucas majority, but rather to write separately, is especially significant. The Justices do not pay equal attention to all issues. As would be expected, the Justices take greater care and spend more time on the issues that matter most to each of them. The takings issue clearly is such an issue for Justice Kennedy. He is developing a vision of how to resolve the tensions that exist between private property rights and the police power of the state. Although Justice Kennedy naturally is sympathetic to private property rights, he does not believe that Justice Scalia has struck the right chord in his majority opinion for the Court in Lucas. Otherwise, as Justice Kennedy has done in other cases, he would have both joined the majority opinion and supplemented his views with a concurring opinion, rather than merely concurring in the judgment.(41)

If one were to argue a regulatory takings case before the Supreme Court today, it would be sensible to pay at least as much heed to Justice Kennedy's concurring rationale as to the rationale found in the Lucas majority opinion. It is more likely that the view expounded by Justice Kennedy, not by the Lucas majority, speaks for the Court today on regulatory takings issues.


Commentators often criticize Justices for voting in seemingly anomalous or inconsistent ways.(42) Anomaly and inconsistency are condemned as such.(43) In other disciplines, however, anomaly presents a positive opportunity. In science, for example, the discovery of an anomaly--an observation that does not square with established theory--can be a moment of celebration and not despair. Anomaly presents a possible window for fuller understanding of a phenomenon being studied.(44) Physicists developed the theory of relativity and quantum mechanics because of the increasing failure of Newtonian classic mechanics to explain experimental observations such as the photoelectric effect.(45) In evolutionary biology, some believe that the genetic anomaly can provide the impetus for species adaptation and advance.(46)

Anomaly can be similarly useful in identifying the motivations behind the Justices' voting in unexpected ways. Rather than calling for conclusory criticism, the unexpected vote can be seen as a window revealing the factors likely to prompt an individual Justice to vote one way rather than another in a regulatory takings case. It is instructive to determine what competing consideration sufficed to warrant abandoning apparently consistent decision making.(47) To that end, this portion of the Essay identifies voting patterns of several Justices. Each Justice is discussed separately. Of special emphasis in this Essay are any votes that might seem counterintuitive or otherwise surprising. Their surprising nature makes them potentially the most revealing. In particular, they may suggest that those crosscutting issues underlying the regulatory takings debate play a far larger role in influencing the Court's rulings than has been expressly acknowledged by the opinions themselves.

A. The Unexpected in Justice Voting

Justice White is the easy case for highlighting vote shifting in the Court's regulatory takings cases.(48) He is, however, hardly alone. With the exception of Justice Scalia, there is a surprising amount of movement in how individual Justices vote in regulatory takings cases on the Court. Surveyed below are the voting patterns of Justice Brennan and several of the current Justices, other than Justice Kennedy, who have played significant roles in the Court's takings jurisprudence during the past two decades.

1. Chief Justice Rehnquist

Many would assume that Chief Justice Rehnquist has adhered to a fairly steady line of decision in takings cases. Not so. Although one can fairly characterize the Chief Justice as generally sympathetic to the claims of private property owners, his writings and votes are not without qualification and some judicial backtracking.

For instance, in Kaiser Aetna v. United States,(49) then-Justice Rehnquist wrote the opinion for the Court in which he declared the "fundamental" nature of the property owner's "right to exclude."(50) The Court ruled in Kaiser Aetna that the federal government's insistence on public access to a navigable private marina constituted a taking of property requiring compensation.(51) Just a few months later, however, then-Justice Rehnquist authored a unanimous opinion for the Court in PruneYard Shopping Center v. Robins.(52) In that case, the Court ruled that the "right to exclude" was not fundamental to a shopping center owner who had failed to demonstrate that his ability to exclude certain leafleteers was "essential to the use or economic value of [his] property. . . ."(53)

Similarly, contrasts exist between the opinion that the Chief Justice wrote for the Court in Dolan v. City of Tigard(54) and Justice Scalia's opinion for the Court in Nollan v. California Coastal Commission.(55) The tone of Dolan is decidedly different from the one that Justice Scalia set for the Court in Nollan. The Dolan opinion is discernibly more tempered, more deferential, and ultimately more respectful of the workings of, and necessity for, state and local land-use regulation.(56) In this respect, the Dolan opinion may share some common roots with PruneYard, which rests similarly on notions of federalism and the primacy of state law for the definition of private property rights.(57)

PruneYard is not the only case in which the Chief Justice sided with the government in a takings case. He joined Justice Brennan's opinion for the Court in Andrus v. Allard,(58) which used very strong proregulation rhetoric in rejecting a takings challenge to the Eagle Protection Act(59) and the Migratory Bird Treaty Act,(60) both of which restricted the sale of eagle feathers.(61) Rehnquist also joined Justice Blackmun's majority opinion for the Court in Ruckelshaus v. Monsanto Co.,(62) which rejected most, but not all, of a takings claim brought against the Environmental Protection Agency (EPA) based on trade secret disclosure requirements under the Federal Insecticide, Fungicide, and Rodenticide Act.(63)

This past Term, in Bennis v. Michigan,(64) the Chief Justice, writing for a slim five-Justice majority, dismissively rejected a plaintiffs claim that a state criminal forfeiture law amounted to an unconstitutional taking of private property.(65) In Bennis, the plaintiff herself had committed no crime, yet she lost her title to an automobile that she and her husband owned jointly when he had used the automobile in the crime of soliciting a prostitute.(66) Employing somewhat elliptical reasoning, the Chief Justice's opinion for the Court tersely stated that "[t]he government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain."(67)

Finally, Chief Justice Rehnquist's view of the role of nuisance law in takings analysis has shifted significantly over the years. In Keystone Bituminous Coal Ass'n v. DeBenedictis,(68) Rehnquist wrote in his dissent that "our cases have never applied the nuisance exception to allow complete extinction of the value of a parcel of property."(69) That claim is inconsistent with his earlier dissenting statement in Penn Central Transportation Co. v. New York City(70) that the Court's precedent established "two exceptions [to the Takings Clause] where the destruction of property does not constitute a taking,"(71) one of which was when the "forbidden use is dangerous to the safety, health, or welfare of others."(72) Significantly, Chief Justice Rehnquist did not equate the nuisance exception to common law precedent but seemed to allow for more broadly based exercises of the police power restricting such dangerous uses of property.(73) More recently, however, the Chief Justice joined the majority opinion in Lucas v. South Carolina Coastal Council,(74) which rejected both his Keystone Bituminous analysis by embracing a nuisance exception(75) and his Penn Central analysis by seeming to limit the nuisance exception to judicial application of the common law.(76)

2. Justice Brennan

Justice Brennan was generally a reliable vote for the government in regulatory takings cases, just as Chief Justice Rehnquist was generally a reliable vote against the government. As with the Chief Justice, however, factors could arise that would prompt Justice Brennan to change his usual voting pattern. To the great dismay of government regulators and environmentalists, Justice Brennan sided with those favoring a constitutionally required money damage remedy in his dissent in San Diego Gas & Electric Co. v. City of San Diego,(77) a case in which the majority invoked procedural grounds to avoid reaching the ultimate issue.(78) It was not long before property owners realized the potential for victory that Justice Brennan's realignment promised, in First English Evangelical Lutheran Church v. County of Los Angeles.(79)

To be sure, one can posit a distinction between the Fifth Amendment remedy issue and the threshold issue of whether a regulation effects a taking in the first instance. Justice Stevens, however, has the better argument in contending that the two issues cannot be divided so neatly.(80) Justice Brennan's view that there must be a remedy for temporary takings reflects an intolerance toward government interference with property rights that is at odds with the legal theory underlying the opinions that he joined and authored rejecting takings claims on the merits.(81) The temporal restrictions that Justice Brennan agreed mandate just compensation do not differ fundamentally from the spatial restrictions that he concluded do not mandate compensation.(82) In a less charitable moment in his dissent in Nollan v. California Coastal Commission,(83) Justice Stevens chastised Justice Brennan for failing to perceive the inconsistency and, in Justice Stevens's view, unfairly subjecting land-use regulation to unrealistic constitutional standards.(84)

3. Justice Stevens

Justice Brennan did not respond to Justice Stevens's criticism of him in Nollan. Had Justice Brennan chosen to respond in kind, he certainly could have reminded Justice Stevens that his own record did not reflect a wholly steady view in takings cases. Justice Stevens has authored more opinions than most Justices have in favor of government regulators in takings cases, writing the majority opinion in Keystone Bituminous, concurring in the judgment in Williamson County Regional Planning Commission v. Hamilton Bank,(85) and dissenting in First English, Nollan, Lucas, and Dolan. Many forget, however, that Justice Stevens joined then-Justice Rehnquist's dissent in Penn Central, having declined to join Justice Brennan's majority opinion for the Court. Justice Stevens likewise joined the majority ruling in Loretto v. Teleprompter Manhattan CATV Corp.(86) that a taking had occurred,(87) again declining to join Justice Brennan in dissent.(88) In Loretto, Justice Stevens embraced a per se approach to the takings issue that presaged a mode of analysis that he subsequently criticized as unduly rigid when the Court extended its application in Lucas.(89)

4. Justice O'Connor

Justice O'Connor's views exhibit more consistency than many of the other members of the Court. She has tended to be among the most aggressive in her defense of private property rights. She joined the dissenters in Keystone Bituminous, and the majority in Nollan, Lucas, and Dolan. Unlike her voting tendencies in other areas of constitutional law,(90) she declined to join Justice Kennedy's effort in Lucas to set forth a more moderate constitutional vision of the Fifth Amendment. Perhaps even more revealing, Justice O'Connor has in recent years twice taken the unusual step of formally dissenting from denials of certiorari in regulatory takings cases in which aggrieved landowners sought the Court's review.(91) Justices generally do not formally record their dissents from denial of certiorari. Doing so, therefore, underscores the depth and intensity of the Justice's views.

If there are any surprises in Justice O'Connor's voting pattern, they are likely to be found in her position on the remedy issue. On this issue, her votes to some extent are the mirror image of Justice Brennan's. In MacDonald, Sommer & Frates v. County of Yolo,(92) Justice O'Connor joined Justice Stevens's majority, which declined to reach the remedy issue.(93) Then, in First English, Justice O'Connor joined parts of Justice Stevens's dissent, which expressed both concern about respecting state courts(94) and skepticism about the merits of the threshold takings claim.(95) In First English, the landowner challenged a law that restricted its ability to operate a camp for the disabled in an area that the government deemed unsafe because of the threat of flooding.(96) Review of the oral argument reveals Justice O'Connor's concern with the dangers of such a use of the property.(97) That same concern also may have provided the impetus for Justice Scalia's assertion in the majority opinion in Lucas that prohibiting development that would flood another's property could destroy all economic value without constituting a taking of property.(98) Because Justice O'Connor supplied Justice Scalia with the crucial fifth vote in Lucas, Justice Scalia may have been responding to Justice Brennan's "rule of five."(99)

5. Justice Scalia

No one could contend that Justice Scalia has not adhered to a firm position in the regulatory takings cases. Property owners have no greater ally on the Court. He opposed the property owner's loss in Keystone Bituminous(100) and voted with the majority in support of private property rights in First English, Nollan, Lucas, and Dolan. Not coincidentally, his majority opinions for the Court in both Nollan and Lucas included some of the most sweeping and potentially far-reaching rhetoric promoting Fifth Amendment protection of private property rights against governmental encroachment.(101)

To discover the revealing anomalies in Justice Scalia's votes, one must look beyond the regulatory takings cases. When other members of the Court have wavered somewhat in takings cases in response to competing concerns, Justice Scalia alone has not. By not doing so, however, he necessarily has produced some tension between his takings jurisprudence and his opinions in other areas of constitutional law. Missing from Justice Scalia's analysis in the takings cases is his typical concern that courts not invoke the Constitution to upset laws enacted by the democratically elected legislative branch.(102) Gone is his normal penchant for restricting the meaning of the Constitution to the original intent of the Framers.(103) Likewise, remarkably absent is any concern with federal courts invoking the federal Constitution to override the judgments of state and local governments--a federalism concern.(104)

B. The Crosscutting Issues

There are, of course, many possible explanations for Justices shifting their views in regulatory takings cases. One very likely possibility is that the individual Justices are not nearly as obsessive as academics suppose them to be about the precise meaning of every specific word or phrase in the opinions that they write or join. Commentators, therefore, are mistaken if they believe that they gain tremendous insight into a particular Justice's thinking by performing such word parsing. The opinions are often a joint product, very much the result of collaborative efforts among the Justice, his or her law clerks, and the views of other chambers.(105) When the opinion is one for the Court or for several Justices joining in a separate opinion, accommodation of competing views is necessary.(106)

The Justices also react to the facts of the cases before them based on their own life experiences. There may be no conscious or even desired effort to develop a coherent unifying legal position. Consider, for example, Justice Powell's sympathy for the historic preservation regulation challenged in Penn Central and his hostility toward restrictions on coal mining challenged in Keystone Bituminotts.(107) Justice Powell's contrasting votes might reflect nothing more than his appreciation for historic preservation and coal. Each is well established in his home state of Virginia, where one finds both Colonial Williamsburg and a heavy economic dependence on coal mining.(108)

The votes of the Justices, however, also suggest the crosscutting issues in regulatory takings cases. No case before the Court exists in a vacuum removed from the Court's other precedent. A Justice's vote in a case before the Court does not turn simply on the particular facts before the Court. Nor does a Justice consider the regulatory takings issue in isolation. A Justice inevitably considers the relationship of the Court's resolution of the issue at hand to other, broader issues that recur frequently in different substantive areas of the Court's varied docket. These socalled "crosscutting" issues provide the common threads between rulings and, ultimately, the fabric of the jurisprudence of a single Justice.

What makes the Court's takings jurisprudence so susceptible to vote shifting is the way that those crosscutting issues tug at individual members in an oppositional fashion in takings cases. "Oppositional" in this context refers to a crosscutting issue's tendency to push a Justice toward voting in a way contrary to what otherwise might be his or her natural inclination on the primary legal issue before the Court.

For example, a Justice like Scalia naturally might be inclined to uphold an executive branch agency's effort to make environmental regulations less demanding and costly to industry, but nonetheless might feel equally compelled to reject the agency's effort based on the plain meaning of the statutory language. His overriding commitment to "plain meaning" construction of statutory language would probably trump any pro-business, antiregulatory inclinations that he might harbor.(109)

In regulatory takings cases, there are a substantial number of crosscutting issues that have just such oppositional tendencies. These issues may well explain much of the vote shifting that has occurred. Even more importantly, however, they may suggest the roots of compromise necessary for the establishment of a new majority coalition on the Court on the regulatory takings issue.

1. Original Intent or Understanding

The Justices routinely debate the significance and meaning of the Framers' original intent or understanding in deciding issues of constitutional law.(110) The basic notion that the Court should tie the meaning of the Constitution more closely to original intent is more favored by members of the Court identified frequently as conservatives than by those members identified as liberals.(111) As applied to regulatory takings cases, however, the issue of original intent wreaks havoc on what might otherwise be natural coalitions within the Court.(112)

The original intent argument generally favors those resisting regulatory takings claims against environmental and land-use regulation. Little historical evidence exists to support the view that the Framers contemplated that the Just Compensation Clause would restrict nonphysically invasive police power restrictions on the use of private property.(113) Consequently, supporters of land-use and environmental regulation quickly find themselves securing the flag of original intent around their cause,(114) and conservatives, concerned about unduly prohibitive restrictions on private property, find themselves voicing the expansive constitutional rhetoric that they roundly condemned when previously invoked on behalf of civil rights plaintiffs and criminal defendants.(115)

2. Federalism

A similar reversal of positions occurs when one relates federalism concerns to the regulatory takings issue. For example, those who support environmental protection laws that promote national environmental protection objectives have not shied away from overriding state and local prerogatives.(116) Conservative activists, scholars, and judges, however, have decried the subjugation of state and local governments to national interests.(117) Indeed, the very name of the most prominent of conservative legal think tanks--The Federalist Society--expresses that baseline position.(118)

Each side, however, must display some legal gymnastics in addressing the regulatory takings issue. Conservatives trumpet the need for federal courts to invoke the federal Constitution to override state and local legislative enactments.(119) Liberals, however, discover the sanctity of state and local autonomy in finding no merit to takings challenges and in emphasizing that property rights are defined in the first instance by state law.(120)

3. Judicial Activism

Related notions of judicial activism play out similarly in the regulatory takings cases. Liberals who tend to be the targets of complaints asserting that they support "government by judiciary"(121) now launch that same claim at conservatives who promote aggressive application of the Just Compensation Clause.(122) Similarly, conservatives, apparently enjoying a convenient bout of temporary amnesia, enthusiastically turn to the courts to champion their vision of wise social and economic policy.(123)

4. Government Distrust

A fourth crosscutting issue relates to distrust of government and individual autonomy. This is an especially problematic feature of regulatory takings disputes. Liberals and conservatives alike exhibit distrust of government, albeit in different contexts. Regulatory takings claims, however, can bridge that gap capably, allowing both groups to concern themselves with possible governmental abuses.

Distrust of government provides much of the driving force behind the property rights movement. Justice Holmes long ago spoke of the tendency of government, if left unchecked, to define away property rights.(124) Richard Epstein has written openly of the need for the courts to invoke the Fifth Amendment to guard against majoritarian efforts to appropriate property owned by others.(125) Liberals tend to support such redistributive governmental programs, so long as they provide the promise of progressiveness. In certain settings, however, restrictions on property rights more closely approximate interests in individual autonomy and security than they do "mere" economic interests. When individual autonomy is implicated, core liberal concerns with governmental overreaching may surface quickly.

One can speculate also about how these crosscutting issues have, in fact, prompted some of the vote swings discussed previously. Justice White shifted to support the private property plaintiffs in both Lucas and Nollan, in each case supplying Justice Scalia with the crucial fifth vote. One possible explanation for Justice White's shift is that in each of these cases, unlike those in which he had sided with the government, the plaintiff sought to protect his right to build a home on residential property.(126) Notions of personal autonomy and security were directly implicated. Concerns about governmental overreaching were, accordingly, more acute than they might have been had mere economic interests been at stake.

At least in Nollan, plaintiffs counsel seemed to anticipate this advantage in presenting his argument. At oral argument, he stressed repeatedly the strong connection between the real property rights being protected and noneconomic concerns with individual autonomy and security. Plaintiffs counsel referred repeatedly to the property's use as a "family home" for parents with small children.(127) He emphasized the personally intrusive nature of members of the public walking just a few feet away from a private residence. He described for the Court how plaintiffs small children would be playing in plain view just a few feet from where strangers would lurk if the government's position were upheld.(128) By the time counsel for the government rose to defend the state law, the Justices' questions reflected the concerns raised regarding individual security and privacy.(129)

Chief Justice Rehnquist's votes likely reflect a similar tug-of-war. His vote and opinion for the Court in favor of the government in PruneYard likely reflected the significant federalism concerns found in the case: the right of a state to decide the content of its own constitution and its own state property laws.(130) His tempered opinion for the Court in Dolan--tempered relative to what Justice Scalia likely would have written for the Court-similarly seemed to try to respond to the legitimate needs of state and local planners to engage in urban land-use planning.(131) His recent dismissal of the takings claim in Bennis may be explained by his fairly traditional, conservative deference to government in the area of criminal law enforcement.(132)

The advocacy in these cases reveals concerted efforts by counsel to use these crosscutting issues to create the coalitions necessary to yield a favorable judgment. In seeking to move Justices like Rehnquist to reject the takings claim, counsel for the appellees in PruneYard, as well as the United States government in its amicus brief, emphasized federalism concerns, including the right of the states to define the scope of state property law and the right to petition the government.(133) In Dolan, those who supported the government's defense against the takings claim similarly underscored issues of federalism and complained about the tyranny of government by the judiciary.(134) The government's brief in Bennis also was replete with reminders of the forfeiture's close nexus to a criminal prosecution, plainly designed to appeal to conservatives such as the Chief Justice.(135)

Understanding Justice Brennan's motivation for siding with the landowners seeking a constitutional damage remedy in First English and San Diego Gas requires little speculation.(136) His responsiveness to a crosscutting issue was fairly explicit.(137) Justice Brennan has long been concerned about government violations of individual constitutional rights and has supported constitutional damage remedies to deter and compensate those violations.(138) It is not surprising therefore that he would not abandon his general support for constitutional damage remedies in determining the appropriate remedy for one specific kind of constitutional violation, namely regulatory takings. Here again, the briefs in the case reveal a concerted effort by advocates to attract traditional liberal support for constitutional damage remedies.(139) The briefs included one written by Pacific Legal Foundation lawyers on behalf of the San Diego Urban League, arguing that curbing governmental overreaching in land-use regulation that adversely affected racial minorities required a civil rights remedy.(140)

Fewer judicial tea leaves evidence why Justice Stevens dissented with then-Justice Rehnquist and Chief Justice Burger in Penn Central, rather than joining Justice Brennan's majority opinion.(141) Justice Stevens does not appear later to have second-guessed that vote, as he has since invoked that dissenting opinion in other cases.(142) A likely distinction is that Penn Central is the only takings case that involved a regulation targeting particular properties and landowners rather than applying to all properties equally. The general applicability of the regulation was a factor that Justice Stevens subsequently emphasized in Lucas while defending South Carolina's law.(143) Counsel for Penn Central identified that particular characteristic as "the vice of this landmark law."(144)

Finally, Justice O'Connor's votes for the majority in First English (in part) and Yolo County(145) likely reflect her lingering concerns about the federalism implications of regulatory takings claims.(146) Ironically, both she and Justice Brennan perceived the same distinction between the merits of a takings claim (i.e., whether a taking has occurred) and the remedy issue and, in addressing the latter, both willingly allowed other crosscutting concerns to shift their votes.(147) In First English, however, each managed to offset the other as they moved in opposite directions. Justice O'Connor's dissent seems. motivated by her belief that the ordinance challenged in that case prevented a dangerous use of a floodplain: the operation of a camp for disabled children.(148)

Both the briefs that were filed in First English and the oral arguments that were made before the Court demonstrate the advocates' understanding that the most effective way to obtain a Justice's vote is to use one of the crosscutting issues as leverage to support his or her view of the merits of the regulatory takings claim. Those supporting a damages remedy, then, stressed to Justice O'Connor the abusive and unfair tactics employed by land-use regulators.(149) In contrast, those resisting a damages remedy sought to persuade conservative Justices like Justice O'Connor by repeatedly emphasizing the intrusiveness of damages remedies on state and local governments and the propriety of judicial deference to legislative judgments.(150)

Accordingly, the Court's regulatory takings precedent is not simply the product of a debate on the meaning of private property and its relationship to the police power. The votes of individual Justices are often as much the result of their views on other crosscutting jurisprudential concerns implicated by the regulatory takings debate. They may have inclinations regarding private property and its relative importance, but for most Justices, those inclinations are not the driving force behind their answers to the legal questions presented. Each Justice looks beyond that narrow debate and seeks to develop a position that responds to his or her view on issues such as original intent, federalism, judicial activism, the need for judicially manageable standards, and other similar concerns, in the ultimate effort to define their own jurisprudential identity. For that reason, scholars and practitioners seeking to proffer a workable test for regulatory takings analysis are mistaken if they focus on the property rights issue in isolation. In order to establish a stable majority view on the Court, one must make a careful accounting of a variety of crosscutting issues that underlie the shifting coalitions behind the Court's discordant rulings to date. The question of how some Justices on the current Court might seek to accomplish that task and what such a test might look like is the subject of this Essay's final lesson.


Piercing the Supreme Court's veil promotes understanding of the Court's regulatory takings precedent, including both the current vulnerability of rulings like Lucas and the identity of those factors that have produced the thin and shifting majorities supporting the Court's decisions. Such piercing also provides guidance regarding what a new majority led by Justice Kennedy might decide in future regulatory takings cases. The seemingly aberrant votes of individual Justices suggest where common ground is likely to be found between otherwise opposing views. These votes are not necessarily the product of illogic or inconsistency; they instead may reflect potential accommodation and the seeds of future compromise between what long have remained opposing, irreconcilable views.

Notwithstanding the inevitably speculative nature of the exercise, predicting where that compromise might be struck is possible. This is not to suggest what the Court should do.(151) This prediction, instead, involves the far more problematic undertaking of gauging where the Court's regulatory takings analysis is likely to go should Justice Kennedy attempt to forge a new majority on the issue. Make no mistake about it--this is an exercise in unabashed speculation.

Drawing on the analysis presented in the prior two sections of this Essay, the general ingredients of a new, centrist majority led by Justice Kennedy would seem to be (1) Justice Kennedy's concurring opinion in Lucas,(152) (2) Justice O'Connor's concern with state and local autonomy and the need to restrict activities dangerous to human life and health,(153) (3) Justice Stevens's concern with singling out property owners for disproportionate burdens and perhaps with historic preservation laws generally,(154) (4) Justice Stevens's further concern with permanent physical occupation of private property,(155) (5) former-Justice Brennan's concern (likely shared by the more liberal members of the current Court) with government abuse of police power authority at the expense of individual autonomy and security,(156) (6) former-Justice White's related concern with the sanctity of the home,(157) (7) Justice Souter's concern with the limits of takings analysis and the propriety of the judicial role in overseeing state and local land-use planning,(158) and (8) Justice Breyer's views on the impropriety of presuming constitutional codification of a particular economic theory and the necessity of allowing for police power restrictions protective of human health and safety.(159)

Because Justice Kennedy is the most likely instigator of a new majority, his concurring opinion in Lucas provides the logical starting point for developing a new framework. That opinion certainly presents the possibility of a middle-ground position. In his Lucas opinion, Justice Kennedy challenged both sides of the regulatory takings debate and took a few tentative steps toward bridging their differences.

First, Justice Kennedy challenged the two mainstay positions of the Lucas majority. He contended that total economic deprivation was not enough to justify a per se approach.(160) He further argued that, in any event, the common law of nuisance and other background principles of the common law do not provide the exclusive justification for denying just compensation for such a complete deprivation of property rights.(161)

Justice Kennedy offered in place of the Lucas majority's analytic framework one requiring an independent assessment of the loss of value in light of the landowner's reasonable expectations.(162) This inquiry would include consideration of the property owner's actual intent as well as his capacity to undertake the use, the prevention of which now forms the basis of his takings claim.(163) Justice Kennedy also argued that mere background principles of the common law were insufficient to define a property owner's reasonable expectations. He argued instead that such interests could find a basis in "objective rules and customs that can be understood as reasonable by all parties involved."(164)

According to Justice Kennedy, these objective rules and customs extend to the government's "enacting new regulatory initiatives in response to changing conditions . . . ."(165) In justifying restrictions beyond the common law, he offered as an example the government's need to restrict private uses on a "fragile land system" like coastal property, even if such restrictions might result in the complete destruction of economic value.(166) Such restrictions, in Justice Kennedy's view, would not interfere with the reasonable expectations of an owner of ecologically fragile property.

Justice Kennedy's concurrence in Lucas also challenged those who favor governmental regulation. He suggested that not all governmental ends would be sufficiently weighty to warrant denying compensation. He identified promotion of tourism as a governmental goal that would not justify the absence of compensation.(167) Additionally, Justice Kennedy introduced a new dimension to takings analysis by asserting that the regulatory means as well as the ends must be reasonable in order to pass Fifth Amendment Takings Clause muster.(168)

A possible analytical framework that emerges from Justice Kennedy's views is not unlike that which the Court utilizes in other areas of constitutional law. Takings scrutiny would essentially have two different levels, in much the same way that the Court applies different levels of scrutiny to decide equal protection,(169) First Amendment,(170) and dormant Commerce Clause challenges.(171)

There would, in the first instance, be an inquiry into the alleged deprivation in order to gauge its relative severity based on its character and degree. This first-level inquiry would determine whether the takings issue at hand implicated a "core" or "fundamental" concern of the Just Compensation Clause. Whether the landowner's deprivation warranted just compensation would turn on that inquiry in combination with an inquiry into the substantiality of the government's justification for the challenged restriction, based similarly on the character of the justification and the degree to which the restriction is reasonably necessary to serve that justification. The injection of the "necessary" qualifier reflects Justice Kennedy's stated concern with the reasonableness of the "means" as well as the "ends" of the challenged restriction.

Core concerns would trigger, in effect, heightened takings scrutiny. Just compensation would not be required per se, but the government would have to survive heightened scrutiny to avoid the compensation requirement. The test would make differences in kind dispositive and would turn on differences in degree only when they reached the level of gross disproportionality. The inquiries would remain fairly binary: akin to heightened takings scrutiny for some kinds of interferences and diminished scrutiny for lesser interests. The courts have utilized such approaches more or less successfully in a host of other constitutional contexts, albeit with a tendency to create compromising categories of mid-level scrutiny.(172) Such bluntedged approaches cause difficulties at the borders(173) but are worthwhile so long as the categories provide for easy disposition of the vast majority of cases.

The challenge, of course, would be to identify the categories: (1) the kinds of interferences with private property that would warrant the greatest degree of protection and (2) the kinds of governmental interests, if any, capable of justifying the most intrusive restrictions without compensation. At one end of the spectrum would be total destruction of economic value, which generally would warrant heightened judicial scrutiny. Defining the center of the spectrum is more difficult, however, and Justice Kennedy's Lucas concurrence suggests where to draw some of the finer distinctions. Any economic deprivation under a takings claim must be based on actual rather than theoretical contemplated use, and the actual use must be clearly lawful at the time that the property owner's expectations came into fruition.(174) Otherwise, the expectations are not sufficiently reasonable to warrant heightened constitutional protection. In addition, owners of fragile land systems would generally be on notice that the government might need to enact substantial restrictions on the use of the property to guard against the possible adverse consequences of developing such land.(175)

Justice Kennedy's concurrence also suggests that promotion of tourism, business, and other economic redistributive goals would not be legislative ends capable of satisfying heightened takings scrutiny. Hence, just compensation would be required in instances of total destruction of economic value.(176) Although such concerns are entirely legitimate and important bases for police power restrictions on the use of land, the Court's new majority likely would conclude that it is proper to assign them less weight in the takings equation than they would a police power measure intended to prevent serious public health and safety risks. In the former circumstances, the police power measure is exclusively distributional in character. Depriving one property owner of all economic value for the benefit of another competing economic value normally would require just compensation.(177)

On the other hand, as Justice Kennedy maintained in Lucas, government regulations aimed at stabilizing especially fragile land systems could satisfy the heightened takings review.(178) The reasons for the governmental restriction may have distributional or aesthetic dimensions, but they are not exclusively so. The basic maintenance of those land systems typically can serve even weightier and more substantial ends because of the degree and kind of harms that result from their disruption.(179)

The prior votes and opinions of other likely members of a Justice Kennedy majority further fill out this new takings framework.(180) Permanent physical invasions or occupations would plainly trigger heightened takings scrutiny.(181) So too would interferences with property rights that implicate core private property concerns with personal autonomy and security.(182) One example would be governmental prohibition of a landowner's construction of a single-family home for her personal use. Another might be governmental engagement in continuous, proximate overflight of private residential property.(183) Governmental prohibitions on traditional rights and uses of property, such as basic subsistence activity or the right to devise, also would likely merit heightened takings scrutiny.(184)

Restrictions on the use of property in order to promote historic preservation would satisfy normal takings review but would be less likely to survive heightened takings scrutiny as applied by a Justice Kennedy-led majority.(185) Restrictions that would pass muster under heightened analysis, on the other hand, would include those that safeguard human health and safety,(186) as long as they are reasonably necessary. As proposed by Justice Kennedy in Lucas, this inquiry would focus on the reasonableness of the means.(187) A court would consider whether the restrictions were reasonably or narrowly tailored, including the reasonableness of the fit between the government's purposes and the object of the restriction. The government would need to demonstrate a

cause-and-effect relationship between the property use restricted

by the regulation and the social evil that the regulation seeks to

remedy. [So long as] the owner's use of the property is (or, but

for the regulation, would be) the source of the social problem, it

cannot be said that he has been singled out unfairly.(188)

An inquiry into the reasonableness of the means likely would not require a distinct less restrictive alternative analysis, but that issue will probably be a matter of considerable discussion in the fashioning of this new approach. In other areas of constitutional law, the Court has embraced such a heightened inquiry into means without subjecting the restriction to less restrictive alternative scrutiny.(189) To satisfy this standard, a restriction must not be unduly over- or underinclusive. An example of impermissible underinclusiveness could be a restriction that singles out one property owner for severe use restrictions but leaves other, similarly situated properties unrestricted. "A regulation need not be `absolutely the least severe that will achieve the desired end,' but if there are numerous and obvious less-burdensome alternatives to the restriction . . . that is certainly a relevant consideration in determining whether the `fit' between ends and means is reasonable."(190) Where the fit is deemed unreasonable, compensation would be required.

In many respects, of course, Justice Scalia already is trying to lead the Court to a takings analysis with his own binary framework. The substance of that analysis, however, would be very different. Under his view, the per se takings categories--physical occupation and total economic deprivation(191)--undoubtedly would be much larger, and the takings test for those intrusions falling outside the per se categories would be significantly more demanding.

Justice Brennan's "rule of five," however, likely prevented Justice Scalia from going as far as he would have preferred to go in Lucas. He was unable to answer the crucial denominator question raised by the Lucas framework: "[How to] make clear the `property interest' against which the loss of value is to be measured."(192) If the economic impact inquiry is based on "parcel as a whole" analysis,(193) compensation will rarely be justified--invariably some part of the property will possess residual economic value. If the inquiry is based on a denominator that considers just the most restricted part of the property, however, compensation will be ordered far more routinely. Justice Scalia no doubt would have liked to address that issue, but, in doing so, he probably would have lost Justice White's vote and perhaps Justice O'Connor's vote as well.

Justice Kennedy, however, appears interested in leading the Court down a quite different path. His willingness to do so in future cases will turn on the strength of his conviction that Justice Scalia's position is ill-advised and not susceptible to mere fine-tuning. Even if willing, Justice Kennedy's ability to create the new majority will also turn on the willingness of some of the more liberal Justices to temper their own views to achieve a more centrist position.


Wishful thinking of others notwithstanding, the "takings puzzle" has not been solved.(194) In certain respects, the pieces of that puzzle are in as much disarray as ever. The Lucas majority view does not solve the puzzle;(195) that decision is not even likely to be weighty precedent before the current Court.

The most likely solution to the puzzle will not come from Justice Scalia, even though he has written many of the Court's most recent significant regulatory takings opinions. It will more likely come from Justice Kennedy, who has written no opinions for the Court on the issue. The signs of a Justice Kennedy-inspired new majority are already evident. They present themselves both in his surprising concurring opinion in Lucas as well as in a careful parsing of those various votes of the other Justices that likewise seemed initially surprising or even anomalous. Together, they present the possibility a of new compromise. The willingness and ability of those Justices to forge that compromise remains an open question. So, too, does the impact of Justice Brennan's unrelenting "rule of five" when change in the Court's membership next occurs.(196)

(1.) See Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. Cal. L. Rev. 561 (1984).

(2.) Compare, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985) (arguing that the Eminent Domain Clause and parallel clauses in the Constitution render many reforms of the 20th century, such as zoning, constitutionally suspect), with Thomas C. Grey, The Malthusian Constitution, 41 U. Miami L. Rev. 21 (1986) (criticizing Epstein's constitutionally based argument in Takings: Private Property and the Power of Eminent Domain for rolling back the welfare state through traditional property rights); Mark Kelman, Taking Takings Seriously: An Essay for Centrists, 74 Cal. L. Rev. 1829, 1830 (1986) (book review) (asserting that critical insights best expose Epstein's Takings "pretenses to analytical power"); and Joseph L. Sax, Takings, 53 U. Chi. L. Rev. 279, 292 (1986) (book review) (stating that the legal and economic world are too complex for Epstein's "simple formal rules").

(3.) 260 U.S. 393 (1922).

(4.) See discussion infra Part I and note 9.

(5.) See discussion infra Part II.A.

(6.) See, e.g., Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (1990); Eric T. Freyfogle, The Owning and Taking of Sensitive Lands, 43 UCLA L. Rev. 77, 78 (1995); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 1224-45 (1967); Rose, supra note 1, at 594-97; Joseph L. Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971); see also Jed Rubenfeld, Usings, 102 Yale L.J. 1077, 1096 (1993) (criticizing legal scholarship that focuses on "the irreconcilable conceptual demands made on the idea of private property within our legal system" as "taking takings thinking too seriously"); Carol M. Rose, Property As the Keystone Right, 71 Notre Dame L. Rev. 329 (1996). Professor Rose has stated:

The rhetoric of property often seems to resound with the notes of heroic

autonomy . . . . But such heroic rhetoric rests on the quite mistaken

notion that this most intensely social of institutions hinges on

individualism alone, whereas in fact it thoroughly mixes independence and

cooperation. Indeed, taken to an extreme, the in-your-face rhetoric of

property rights can undermine actual institutions of property, suggesting

that anything goes, and that the property owner need not care in the least

for his fellows.

Id. at 365.

(7.) Mark V. Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. Rev. 748, 763 (1995).

(8.) See Thurgood Marshall, A Tribute to Justice William J. Brennan, Jr., 104 Harv. L. Rev. 1, 5 (1990); Abner J. Mikva, A Tribute to Justice William J. Brennan, Jr., 104 Harv. L. Rev. 9, 10 (1990); Richard A. Posner, A Tribute to Justice William J. Brennan, Jr., 104 Harv. L. Rev. 13, 14 (1990); Nina Totenberg, A Tribute to Justice William J. Brennan, Jr., 104 Harv. L. Rev. 33, 37-38 (1990).

(9.) See Dolan v. City of Tigard, 512 U.S. 374 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981).

(10.) 260 U.S. 393 (1922).

(11.) 480 U.S. 470 (1987).

(12.) 482 U.S. 304 (1987).

(13.) 483 U.S. 825 (1987).

(14.) Compare Keystone Bituminous, 480 U.S. at 486-88 (maintaining that the state can exercise its police power broadly "to accomplish a number of widely varying interests"), with Nollan, 483 U.S. at 836-37 (holding that land-use regulation must "further the end advanced as the justification for the prohibition.).

(15.) See First English, 482 U.S. at 314-22 (holding that even temporary takings must be compensated).

(16.) Justice White authored majority opinions for the Court in two cases raising regulatory takings claims, Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211 (1986), and United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). He also dissented in another, MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 353 (1986).

(17.) 505 U.S. 1003 (1992).

(18.) The majority in Lucas consisted of Chief Justice Rehnquist and Justices White, O'Connor, Scalia, and Thomas. See id.

(19.) Lucas was decided on June 29, 1992, see id., and Justice White announced his resignation on March 19, 1993. See Linda Greenhouse, White Announces He'll Step Down from High Court, N.Y. Times, Mar. 20, 1993, at Al.

(20.) A number of law review symposia followed on the heels of Lucas, none of which considered the significance of the subsequent shift in the Court's composition. See, e.g., James E. Brookshire, "Taking" the Time To Look Backward, 42 Cath. U. L. Rev. 901 (1993); Dennis J. Coyle, Takings Jurisprudence and the Political Cultures of American Politics, 42 Cath. U. L. Rev. 817 (1993); John A. Humbach, "Taking" the Imperial Judiciary Seriously: Segmenting Property Interests and Judicial Revision of Legislative Judgments, 42 Cath. U. L. Rev. 771 (1993); Glynn S. Lunney, Jr., Compensation for Takings: How Much Is Just?, 42 Cath. U. L. Rev. 721 (1993); Katherine A. Bayne, Note, Lucas v. South Carolina Coastal Council: Drawing a Line in the Sand, 42 Cath. U. L. Rev. 1063 (1993).

(21.) See, e.g., Hutto v. Davis, 454 U.S. 370, 375 (1982) ("[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts . . . ."). There are, of course, a few lower court judges who appear to exercise a free hand with the Supreme Court's precedent. See Francis Wilkinson, Judge Hand's Holy War, Am. LAW., May 1987, at 111.

(22.) See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) ("[T]he rule of stare decisis is not an `inexorable command' . . . . Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations . . . ."); see also Linda Greenhouse, High Court Asked To Reverse Ruling in a Religion Case, N.Y. Times, Oct. 31, 1996, at A1.

(23.) Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987).

(24.) Id. at 488.

(25.) Justice Thomas's speeches and writings prior to joining the Court suggested his strong support for an aggressive reading of the Fifth Amendment Just Compensation Clause, notwithstanding his efforts during the confirmation process to distance himself from that view. See Nomination of Judge Clarence Thomas To Be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 102d Cong. 110-27 (1991). Just a few months before Lucas was before the Court, Justice Kennedy gave a speech at a law school in which he stressed the centrality of private property rights under the Federal Constitution, See Robert A. Chaim, Justice Kennedy Inaugurates the Archie Hefner Memorial Lecture Series, McGeorge Mag., 1991, at 10-11; infra text accompanying note 39.

(26.) See Brief for Respondent, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (No. 91-453); Brief for the United States As Amicus Curiae in Support of Reversal, Lucas (No. 91-453).

(27.) 512 U.S. 374 (1994).

(28.) Although Justice Kennedy joined the majority opinion in Dolan, he declined to do so in Lucas, expressly stating that he "share[d] the reservations" of his dissenting colleagues, Justices Blackmun, Stevens, and Souter, "about a finding that a beachfront lot loses all its value because of a development restriction." Lucas, 505 U.S. at 1034 (Kennedy, J., concurring in the judgment).

(29.) See Dolan, 512 U.S. at 396 (Stevens, J., with whom Blackmun & Ginsburg, JJ., join, dissenting). During the Senate hearings on her nomination to the Court, then-Judge Ginsburg was deliberately vague about her views on the regulatory takings issue, though her characterization of Lucas perhaps presaged her dissent in Dolan. Responding to a question from Senator Pressler, she stated:

There must be dozens or scores of cases in which litigants are seeking

clarification of the line between regulation and taking. I can't offer now

anything more than to say I appreciate that the issue is very much

alive, and that the most recent decision, the Lucas decision is hardly the

be-all-and-end-all. Nomination of Ruth Bader Ginsburg To Be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 103d Cong. 238 (1993) (statement of Judge Ruth Bader Ginsburg).

(30.) See S. Exec. Rep. No. 103-31, at 22 (1994).

(31.) See, e.g., Dolan, 512 U.S. at 406-07 (Stevens, J., with whom Blackmun & Ginsburg, JJ., join, dissenting) ("The so-called `regulatory takings' doctrine ... has an obvious kinship with the line of substantive due process cases that Lochner exemplified.").

(32.) See S. Exec. Rep. No. 103-31, at 23.

(33.) Id.

(34.) Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1032 (1992) (Kennedy, J., concurring in the judgment).

(35.) See id. at 1035 (Kennedy, J., concurring in the judgement) ("The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society.").

(36.) Id.

(37.) Id.

(38.) See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 377 (1994) (Rehnquist, C.J., writing for the majority, joined by O'Connor, Scalia, Kennedy, & Thomas, JJ.); cf. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1032 (1992) (Kennedy, J., concurring in the judgment).

(39.) See Chaim, supra note 25, at 10-11.

(40.) Id.

(41.) See, e.g., United States v. Lopez, 115 S. Ct. 1624, 1625 (1995) (Rehnquist, C.J., writing for the majority joined by O'Connor, Scalia, Kennedy & Thomas, JJ.); id. at 1634 (Kennedy, J., concurring).

(42.) See, e.g., Douglas Laycock, The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687, 756-57 (1990); Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 Yale L.J. 1647, 1658-60 (1986); The Supreme Court, 1992 Term-Leading Cases, 107 Harv. L. Rev. 144, 270 (1993); The Supreme Court, 1988 Term-Leading Cases, 103 Harv. L. Rev. 137, 326 (1989).

(43.) But see Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice, 105 Yale L.J. 2031, 2113 (1996) ("[O]ur courts finally must rid themselves of the habit of thinking that adjudicative consistency holds some inherent value tugging them away from what is just.").


Discovery commences with the awareness of anomaly, i.e., with the

recognition that nature has somehow violated the paradigm-induced

expectations that govern normal science. It then continues with a

more or less extended exploration of the area of anomaly. And it

closes only when the paradigm theory has been adjusted so that the

anomalous has become the expected.

Thomas S. Kuhn, The Structure of Scientific Revolutions 52-53 (2d ed. 1970).

(45.) See Richard Feynman, The Character of Physical Law 162-63 (1965); see also id. at 158 ("In other words we are trying to prove ourselves wrong as quickly as possible, because only in that way can we find progress.").

(46.) See Stephen Jay Gould, The Panda's Thumb 186-93 (1980).

(47.) Cf. John E. Coons, Consistency, 75 Cal. L. Rev. 59, 112-13 (1987) ("[I]nconsistency's most compelling claim for recognition may lie in its potential service to truth.").

(48.) See supra note 16 and accompanying text.

(49.) 444 U.S. 164 (1979).

(50.) Id. at 179-80.

(51.) See id. at 180.

(52.) 447 U.S. 74 (1980).

(53.) Id. at 84.

(54.) 512 U.S. 374 (1994).

(55.) 483 U.S. 825 (1987).

(56.) See, e.g., Dolan, 512 U.S. at 387 ("No . . . gimmicks are associated with the permit conditions imposed by the city in this case."); id. at 396 ("Cities have long engaged in the commendable task of land use planning, made necessary by increasing urbanization particularly in metropolitan areas such as Portland. The city's goals . . . are laudable, but there are outer limits on how this may be done.").

(57.) PruneYard, 447 U.S. at 84-85 (referring to the "residual authority [of a State] that enables it to define `property' in the first instance" and "the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution").

(58.) 444 U.S. 51 (1979).

(59.) 16 U.S.C. [section] 668(a) (1994).

(60.) Id. [section] 703.

(61.) See Allard, 444 U.S. at 67-68.

(62.) 467 U.S. 986 (1984).

(63.) 7 U.S.C. [subsection] 136-136y (1994); see Ruckleshaus, 467 U.S. at 1013-14.

(64.) 116 S. Ct. 994 (1996).

(65.) See id. at 1001.

(66.) See id. at 996.

(67.) Id. at 1001.

(68.) 480 U.S. 470 (1987).

(69.) Id. at 513.

(70.) 438 U.S. 104 (1978).

(71.) Id. at 144.

(72.) Id. at 145.

(73.) See id. ("The nuisance exception to the taking guarantee is not coterminous with the police power itself.").

(74.) 505 U.S. 1003 (1992).

(75.) See id. at 1027-32.

(76.) See id. at 1029.

(77.) 450 U.S. 621, 653 (1981) (Brennan, J., with whom Stewart, Marshall, & Powell, JJ., join, dissenting).

(78.) See id. at 631-33.

(79.) 482 U.S. 304 (1987) (holding that the government must compensate property owners for a temporary taking).

(80.) See id. at 328-35 (Stevens, J., dissenting).

(81.) See id. at 330-31 (Stevens, J., dissenting) (discussing Keystone Bituminous and Penn Central).

(82.) See id. at 330 (Stevens, J., dissenting) ("Regulations are three dimensional; They have depth, width, and length. . . . It is obvious that no one of these elements can be analyzed alone to evaluate the impact of a regulation, and hence to determine whether a taking has occurred.").

(83.) 483 U.S. 825, 866 (1987).


I write today to identify the severe tension between [the decision in First

English] and the view expressed by Justice Brennan's dissent in this

case that the public interest is served by encouraging state agencies to

exercise considerable flexibility in responding to private desires for

development in a way that threatens the preservation of public resources. I

like the hat that Justice Brennan has donned today better than the one

he wore in San Diego, and I am persuaded that he has the better of the

legal arguments here. Even if his position prevailed in this case, however,

it would be of little solace to land-use planners who would still be

left guessing about how the Court will react to the next case, and the

one after that. As this case demonstrates, the rule of liability created by

the Court in First English is a shortsighted one. Like Justice Brennan,

I hope that a "broader vision ultimately prevails."

Id. at 867 (Stevens, J., with whom Blackmun, J., joins, dissenting) (citations omitted).

(85.) 473 U.S. 172, 202 (1985).

(86.) 458 U.S. 419, 420 (1982).

(87.) See id. at 441-42.

(88.) See id. at 442.

(89.) Compare id. at 434-35 ("[W]hen the `character of the governmental action,' . . . is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public health benefit or has only minimal economic impact on the owner."), with Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1071 (1992) (Stevens, J., dissenting) ("`[F]airness and justice' are often disserved by categorical rules.").

(90.) See, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); Planned Parenthood v. Casey, 505 U.S. 833 (1992).

(91.) See Parking Ass'n v. City of Atlanta, 115 S. Ct. 2268 (1995) (Thomas, J., with whom O'Connor, J., joins, dissenting); Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) (Scalia, J., with whom O'Connor, J., joins, dissenting).

(92.) 477 U.S. 340 (1986).

(93.) See id. at 348-53.

(94.) See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 335-39 (1987) (Stevens, J., with whom Blackmun & O'Connor, JJ., join, dissenting as to Parts I and III).

(95.) See id. at 322-28 (Stevens, J., with whom Blackmun & O'Connor, JJ., join, dissenting as to Parts I and III).

(96.) See id. at 307-08.

(97.) See Official Transcript Proceedings Before the Supreme Court of the United States at 26, First English (No. 85-1199) [hereinafter First English Oral Argument Transcript] (questions posed by Justice O'Connor) ("[D]o you think that local governments don't have authority to engage in flood control regulation? . . . And does the church plan to rebuild on a flood plain where people have been killed?").

(98.) See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992).

(99.) See supra note 7 and accompanying text.

(100.) 480 U.S. 470, 506 (1987) (Rehnquist, C.J., dissenting).


We view the Fifth Amendment's Property Clause to be more than a

pleading requirement, and compliance with it to be more than an

excise in cleverness and imagination. As indicated earlier, our cases

describe the condition for abridgement of property rights through the police

power as a "Substantial advanc[ing]" of a legitimate state interest. We

are inclined to be particularly careful about the adjective where the

actual conveyance of property is made a condition to the lifting of a

land-use restriction, since in that context there is heightened risk that

the purpose is avoidance of the compensation requirement, rather than the

stated police-power objective.

Nollan v. California Coastal Comm'n, 483 U.S. 825, 841 (1987).

(102.) See Humbach, supra note 20, at 771-72; see also Robert H. Bork, The Tempting of America: The Political Seduction of the Law 229-30 (1990) (criticizing Richard Epstein's reading of the Fifth Amendment's Just Compensation Clause as permitting judicial usurpation of legislative judgment).

(103.) See Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U. L. Rev. 25, 61-63 (1994); see also Bork, supra note 102, at 230 ("My difficulty is not that Epstein's constitution would repeal much of the New Deal and the modern regulatory-welfare state but rather that these conclusions are not plausibly related to the original understanding of the takings clause.").

(104.) See Frank I. Michelman, Property, Federalism, and Jurisprudence: A Comment on Lucas and Judicial Conservatism, 35 Wm. & Mary L. Rev. 301, 307, 310-28 (1993).

(105.) See Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 Duke L.J. 191, 229-30 (1991) ("Supreme Court opinions are becoming less . . . the product of an individual and powerful mind, less an original text or primary source providing a theoretical model for scholarship, and more the product of `bureaucratic writing' by law clerks.... They are the proverbial `work of many hands.'").

(106.) See Kevin M. Stack, Note, The Practice of Dissent in the Supreme Court, 105 Yale L.J. 2235, 2239 (1996).

(107.) Cf. Official Transcript Proceedings Before the Supreme Court of the United States at 46, Hodel v. Indiana, 452 U.S. 314 (1981) (No. 80-231) (statement of Justice Powell) (expressing his concern, Justice Powell stated that because of the geographic characteristics of Virginia, "in many instances the land ha[s] no value whatever under the administration of [a surface mining control law]").

(108.) Justice Kennedy's surprising vote in Lucas may reflect his appreciation, based on years of living in California, of the hidden perils of residential development in potentially unstable ecosystems, See Richard J. Lazarus, Putting the Correct "Spin" on Lucas, 45 STan. L. Rev. 1411, 1422-23 (1993).

(109.) In City of Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994), Justice Scalia wrote an opinion for the Court that rejected the EPA's interpretation of the Resource Conservation and Recovery Act which would have allowed municipalities to exempt from costly hazardous waste management regulations the ash generated from the combustion of municipal waste to produce energy. See id at 334-35. The majority ruled that the meaning of the statutory language was plain and declined to rely on any contrary legislative history. See id. at 337 ("[I]t is the statute, and not the Committee Report, which is the authoritative expression of the law . . . ."). Justice Scalia's penchant for plain meaning construction of statutes and his antipathy for legislative history are well established. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517; James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 Mich. L. Rev. 1, 41-42 (1994).

(110.) See, e.g., U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842 (1995) (holding unconstitutional a state constitutional provision limiting the number of federal congressional terms an individual can serve); United States v. Lopez, 115 S. Ct. 1624 (1995) (holding that a gun control law exceeded Congress's authority to regulate commerce under the Constitution). The body of legal scholarship on original intent and its applications also continues to grow. See Raol Berger, Government by Judiciary 363-72 (1977); Bork, supra note 102, at 143-259; Cass R. Sustein, The Partial Constitution 93-161 (1993); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).

(111.) See Lopez, 115 S. Ct. at 1643-46 (Thomas, J., concurring); William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).

(112.) The "liberal" and "conservative" labels are extraordinarily imprecise in describing the Justices and potentially misleading with regard to the regulatory takings issue given the ties of property rights proponents to Lockean liberalism. I nonetheless use these labels in this Essay for lack of an alternative shorthand expression for describing the predilections of the Justices on certain crosscutting issues.

(113.) See J. Peter Byrne, Ten Arguments for the Abolition of the Regulatory Takings Doctrine, 22 Ecology L.Q. 89, 91-96 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 785-97 (1995); see also John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 Harv. L. Rev. 1252, 1289-93 (1996) ("The reason the Framers did not address land use regulation in the Takings Clause is that they did not regard it as a taking."). But see Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak nor Obtuse, 88 Colum. L. Rev. 1630, 1635 (1988).

(114.) See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1055-60 (1992) (Blackmun, J., dissenting).

(115.) See Dolan v. City of Tigard, 512 U.S. 374, 392 (1994) ("We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of poor relation in these comparable circumstances."); Lucas, 505 U.S. at 1028 & n.15 (agreeing that "early constitutional theorists did not believe the Takings Clause embraced regulations of property at all" and relying on the "historical compact recorded in the Takings Clause that has become part of our constitutional culture").

(116.) See Adam Babich, Our Federalism, Our Hazardous Waste, and Our Good Fortune, 54 Md. L. Rev. 1516, 1534-50 (1995); John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 Md. L. Rev. 1183, 1190-99 (1995); Jim Florio, Federalism Issues Related to the Probable Emergence of the Toxic Substances Control Act, 54 Md. L. Rev. 1354, 1363-70 (1995); Oliver A. Houck & Michael Rolland, Federalism in Wetlands Regulation: A Consideration of Delegation of Clean Water Act Section 404 and Related Programs to the States, 54 Md. L. Rev. 1242, 1244-53 (1995); Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 Md. L. Rev. 1141, 1157-65 (1995).

(117.) See Daniel A. Farber, The Constitution's Forgotten Cover Letter. An Essay on the New Federalism and the Original Understanding, 94 Mich. L. Rev. 615, 618-26 (1995).

(118.) See Richard Neely, The Politics of Patronage: Empowering Joe Lunchbucket, 4 Cornell J.L. & Pub. Pol'y 525, 525 (1995) ("The Federalist Society focuses on shifting the level of government decision-making from the federal government to state or local government . . . .").


We realize that even our present holding will undoubtedly lessen to some

extent the freedom and flexibility of land-use planners and governing

bodies of municipal corporations when enacting land-use regulations. But

such consequences necessarily flow from any decision upholding a claim of

constitutional right; many of the provisions of the Constitution are

designed to limit the flexibility and freedom of governmental

authorities . . . .

First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321 (1987).


[The doctrine of exhaustion] is supported by our respect for the sovereignty

of the several States and by our interest in having federal judges

decide federal constitutional issues only on the basis of fully developed

records. The States' interest in controlling land-use development and in

exploring all the ramifications of a challenge to a zoning restriction

should command the same deference from the federal judiciary.

Id. at 338 (Stevens, J., dissenting) (citations omitted); see also Lucas, 505 U.S. at 1051 (Blackmun, J., dissenting) ("These cases rest on the principle that the State has full power to prohibit an owner's use of property if it is harmful to the public."); Byrne, supra note 113, at 111-15 (describing the damage resulting from judicial intrusion into state property law).

(121.) See Berger, supra note 110; Bork, supra note 102.

(122.) See Dolan v. City of Tigard, 512 U.S. 374, 407 (1994) (Stevens, J., dissenting) (describing both Lochner and the "`regulatory takings' doctrine" as "having similar ancestry" and as "potentially open-ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair"); Lucas, 505 U.S. at 1046 (Blackmun, J., dissenting) ("The Court offers no justification for its sudden hostility toward state legislators, and I doubt that it could."); Nollan v. California Coastal Comm'n, 483 U.S. 825, 846 (1987) (Brennan, J., dissenting) ("[The Court's] narrow conception of rationality, however, has long since been discredited as a judicial arrogation of legislative authority.").

(123.) See Byrne, supra note 113, at 118-19.

(124.) See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

(125.) See Epstein, supra note 2, at 344-46; Thomas W. Merrill, Rent Seeking and the Compensation Principle, 80 Nw. U. L. Rev. 1561, 1584-85 (1986) (reviewing Epstein's Takings, supra note 2).

(126.) See Lucas, 505 U.S. at 1008; Nollan, 483 U.S. at 827-28.

(127.) See Official Transcript Proceedings Before the Supreme Court of the United States at 3, 20, Nollan (No. 86-133).

(128.) See id. at 14 ("[P]eople can walk along just a few feet from the Nollans' house. They can see over the seawall directly into their living room. . . . Now, as any parents of small children, that concerns them."); id. at 19 (stating that the Nollans "don't want the people crossing within a few feet of their window, to go out and ask them to cross down by the waterway and stay away from their private residence, for example, if their small children are playing in the backyard"); id. at 20 ("As parents of small children, you're talking about the backyard of their home . . . . [P]eople could wander back and forth right next to their windows."); id. at 28 ("[W]e are dealing with a program that takes a very important concern--this is a private residence, a family with small children--away from this family to serve a program, a statewide program.").

(129.) See id. at 4041 (questions from the Court) ("[L]et's assume there's a person down the street that I think--I don't trust him. I mean, he just looks shifty eyed. And he takes to walking back and forth seven feet away from my back window, back and forth; back and forth"); id. at 42 ("Mr. Nollan thought he bought a privacy buffer.").

(130.) See supra note 67 and accompanying text.

(131.) See supra note 56 and accompanying text.

(132.) See supra note 64-67 and accompanying text.

(133.) The appellees' brief focused on federalism from the start:

The Federal System of our government allows and encourages the states

to resolve their peculiar problems under state law. This court's prior

decisions concerning expressive activity in shopping centers withheld

federal protection under the First Amendment, but no decision has undermined

the states' power to regulate such property to protect fundamental state


Brief of Appellees at 14, PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) (No. 79-289); see also Brief for the United States As Amicus Curiae at 21 ' PruneYard (No. 79-289) ("State law conferring rights in property and defining the limitations of those rights is, accordingly, ordinarily the source of those rights, rather than a taking of them--especially where, as here, the pertinent state constitutional provision long antedates any claim or investment by the [landowner]."). The Chief Justice's concern with state law as the primary source of property law is further reflected in an exchange with government counsel at oral argument in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), in which he questioned counsel's characterization of the definition of "property" as a question of federal law. See Official Transcript Proceedings Before the Supreme Court of the United States at 10, Ruckelshaus (No. 83-196). In Kaiser Aetna v. United States, then-Justice Rehnquist's majority opinion similarly stressed that the marina at issue had always been considered private property under applicable Hawaii law. Kaiser Aetna v. United States, 444 U.S. 164, 179 (1979).

(134.) See Brief for Respondent at 30, Dolan v. City of Tigard, 512 U.S. 374 (1994) (No. 93-518) ("Petitioner apparently wants the Court to return to those Lochnerian days of heightened judicial review of economic regulation, but now under the guise of takings analysis rather than through that already-discredited substantive due process analysis."); Brief of the National Association of Counties, Council of State Governments, National League of Cities, International City/County Management Association, National Institute of Municipal Law Officers, and U.S. Conference of Mayors As Amici Curiae in Support of Respondent at 12, Dolan (No. 93-518) (citing Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 402 (1979)) ("Deference to the judgments of local governments in the area of land-use regulation is of particular importance given the sensitive and complex determinations that such regulation demands.").

(135.) See Brief for the United States as Amicus Curiae Supporting Respondent at 25, Bennis v. Michigan, 116 S. Ct. 994 (1996) (No. 94-8729) ("Nothing in Lucas or Dolan, neither of which involved a forfeiture of property that had been used illegally, casts doubt on th[e] principle" that "if the . . . government's actions comport, procedurally and substantively, with the terms of a lawfully enacted forfeiture statute, it may seize private property without compensating the owner.") (citations omitted); id. ("Petitioner did not allege or prove that she took all reasonable steps to prevent illegal use of the car.").

(136.) See supra notes 77-79 and accompanying text.

(137.) See San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 661 n.26 (1981) (Brennan, J., dissenting) ("[I]f a policeman must know the Constitution, then why not a planner?").

(138.) Justice Brennan has authored many landmark decisions protecting individual rights by allowing for constitutional damage remedies. See, e.g., Carlson v. Green, 446 U.S. 14 (1980) (supporting constitutional damages remedy); Owen v. City of Independence, 445 U.S. 622 (1980) (supporting constitutional damages remedy); Davis v. Passman, 442 U.S. 228 (1979) (supporting constitutional damages remedy); Monell v. Department of Soc. Servs., 436 U.S. 658 (1978) (supporting constitutional damages remedy); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (supporting constitutional damages remedy); see also DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189, 203 (1989) (Brennan, J., dissenting) (supporting constitutional damages remedy).

(139.) See, e.g., Brief of Appellant at 37, San Diego Gas (No. 79-678) (citing Owen, 445 U.S. at 650-51) ("[T]his Court . . . specifically and emphatically held that damage compensation is available and is to be awarded when constitutional rights are violated by cities, regardless of the good faith of the action taken.").

(140.) The Urban League contended that:

Just as this Court has forbidden exclusion clearly based on race or national

origin, so should this Court disallow and deter exclusion which is solely

motivated by a municipal desire to further purely parochial aims to the

detriment of the economically disadvantaged. A wide range of remedies is

necessary to ensure municipal responsibility as well as accountability.

Brief of Amicus Curiae San Diego Urban League, Inc., in Support of Appellant at 1920, San Diego Gas (No. 79-678); id. at 23-28 (relying extensively on needs of minorities and on Justice Brennan's opinion for the Court in Owen, 445 U.S. at 622).

(141.) See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 138 (1978).

(142.) See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470,491 n.20 (1987).

(143.) See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1071-74 (1992) (Stevens, J., dissenting).

(144.) Official Transcript Proceedings Before the Supreme Court of the United States at 28, Penn Central (No. 77-444) [hereinafter Penn Central Oral Argument Transcript] (statement of Mr. Gribbon); see Penn Central, 438 U.S. at 131 (noting Penn Central's concession that no taking occurs if a development restriction is the result of a generally applicable law rather than an individual landmark designation).

(145.) MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986).

(146.) See supra notes 93-97 and accompanying text.

(147.) In joining the majority opinion in Yolo County, Justices O'Connor and Brennan agreed that compensation cannot be deemed "just" until "a court knows what use, if any, may be made of the affected property." Yolo County, 477 U.S. at 350.

(148.) See supra notes 96-98 and accompanying text.

(149.) See First English Oral Argument Transcript, supra note 97, at 58 (statement of Michael Berger, Counsel for First English) ("[Governmental delays and lengthy litigation in regulatory takings cases] is the kind of horror story, Justice O'Connor, that goes on in California, and it goes on all the time."). The property owner's efforts seem to have had an impact on Justice O'Connor, which, despite her dissent in First English, may explain her aggressive stance in favor of property owners in subsequent regulatory takings cases. See id. at 55 (statement of Justice O'Connor) ("[T]here are some horror stories out there of local governments intentionally running these things through the mill indefinitely . . . with full recognition that if they lose on one they can make a minor modification of the requirement and go again and effectively deprive people forever of any use."); supra note 91 and accompanying text.

(150.) Environmental organizations resisting the damages remedy sought to invoke the federalism and judicial activism concerns of conservative Justices. See, e.g., Brief of the National Trust for Historic Preservation, National Association of Counties, National Association of County Planning Directors, National Wildlife Federation, Preservation Action, and National Parks and Conservation Association, As Amici Curiae in Support of Appellees at 13, San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981) (No. 79-678) ("Implying a [d]amage [r]emedy [w]ould [i]nterfere with the [r]elationship [b]etween [f]ederal and [s]tate [a]uthorities and [b]etween the [c]ourts and the [l]egislative [b]ranch").

(151.) For criticism of the "fundamental rights" framework emerging in the Court's regulatory takings cases, see Rubenfeld, supra note 6, at 1097-11.

(152.) 505 U.S. 1003, 1032 (1992) (Kennedy, J., concurring in the judgment).

(153.) See supra notes 94-97 and accompanying text.

(154.) See supra notes 142-44 and accompanying text.

(155.) See supra notes 86-89 and accompanying text.

(156.) See supra notes 81, 138 and accompanying text.

(157.) See supra note 126 and accompanying text.

(158.) See Dolan v. City of Tigard, 512 U.S. 374, 411-14 (1994) (Souter, J., dissenting) (arguing that the Court is improperly addressing issues not raised by the facts before the Court); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1076-78 (1992) (statement of Souter, J.) (voting to dismiss the writ of certiorari); cf. United States v. Lopez, 115 S. Ct. 1624, 1651-52 (1995) (Souter, J., dissenting) (arguing for deference to the legislature).

(159.) See supra notes 30-33 and accompanying text.

(160.) See Lucas, 505 U.S. at 1034 (Kennedy, J., concurring in the judgment) ("Where a taking is alleged from regulations which deprive the property of all value, the test must be whether the deprivation is contrary to reasonable, investment-backed expectations.").

(161.) See id. at 1035 (Kennedy, J., concurring in the judgment) (citing Goldblatt v. Town of Hempstead, 369 U.S. 590, 593 (1962)) ("In my view, reasonable expectations must be understood in light of the whole of our legal tradition. The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society.").

(162.) See id. at 1034 (Kennedy, J., concurring in the judgment).

(163.) See id at 1033 (Kennedy, J., concurring in the judgment) ("Among the matters to be considered on remand must be whether petitioner had the intent and capacity to develop the property and failed to do so in the interim period because the State prevented him.").

(164.) Id. at 1035 (Kennedy, J., concurring in the judgment).

(165.) Id. (Kennedy, J., concurring in the judgment).

(166.) Id. (Kennedy, J., concurring in the judgment).

(167.) See id. (Kennedy, J., concurring in the judgment).

(168.) See id. (Kennedy, J., concurring in the judgment).

(169.) See Bush v. Vera, 116 S. Ct. 1941 (1996) (applying strict scrutiny review to a state's redistricting plan); Shaw v. Hunt, 116 S. Ct. 1894 (1996) (applying strict scrutiny review to a state's redistricting plan); Romer v. Evans, 116 S. Ct. 1620 (1996) (applying rational basis review to Colorado's "Amendment 2").

(170.) See McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1519 (1995) (applying strict scrutiny to political speech); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993) (applying intermediate scrutiny to commercial speech); Larsen v. Valente, 456 U.S. 228, 246 (1982) (applying strict scrutiny to cases involving religious freedom).

(171.) See Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 511 U.S. 93, 98-99 (1994) (explaining which level of scrutiny to apply in negative Commerce Clause cases); Wyoming v. Oklahoma, 502 U.S. 437, 454 (1992) (finding protectionist state statutes per se invalid under the Commerce Clause).

(172.) See, e.g., Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2375-76 (1995) (describing "intermediate" level scrutiny for restrictions on commercial speech); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994) (describing "heightened equal protection scrutiny" review of gender-based classifications).

(173.) See, e.g., Discovery Network, 507 U.S. at 419 ("This very case illustrates the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category.").

(174.) See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1033 (1992) (Kennedy, J., concurring in the judgment).

(175.) See id. at 1035 (Kennedy, J., concurring in the judgment).

(176.) See id. (Kennedy, J., concurring in the judgment).

(177.) Somewhat analogous concerns have been expressed in the Court's dormant Commerce Clause cases. See Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 956 (1982) (recognizing the difference between economic protectionism and health and safety regulations).

(178.) See Lucas, 505 U.S. at 1035 (Kennedy, J., concurring in the judgment).

(179.) See id. (Kennedy, J., concurring in the judgment).

(180.) See Laura S. Underkuffler-Freund, Takings and the Nature of Property, 9 Canadian J.L. & Jurisprudence 161, 185 (1996) (describing how under emerging Supreme Court precedent "all property interests are not held with the same intensity and are not protected equally" and how there is a "hierarchical ordering of stringency of protection").

(181.) See Lucas, 505 U.S. at 1015.

(182.) See supra notes 81, 136 and accompanying text.

(183.) See Brown v. United States, 73 F.3d 1100 (Fed. Cir. 1996). 184. See Hodel v. Irving, 481 U.S. 704, 716 (1987).

(185.) Even the United States as amicus curiae in support of the City of New York in Penn Central agreed that the historic landmark designation would amount to a taking if the property owner was not provided a "reasonable return." Penn Central Oral Argument Transcript, supra note 144, at 59. The federal government's argument in that case was presented by then-Assistant Attorney General Patricia Wald, now a federal appellate judge.

(186.) Like Justice O'Connor in First English, see supra note 97, Justice Kennedy in Lucas repeatedly posed questions at oral argument suggesting that there are instances when all economic uses can be taken for urgent safety reasons and not compensated, citing earthquake faults and coastal property as two examples. See Official Transcript Proceedings Before the Supreme Court of the United States at 15-16, Lucas (No. 91-453). The identity of Justice Kennedy is not evident on the face of the transcript; his identity is derived from the author's notes taken at the oral argument itself (notes on file with the author).

(187.) See supra note 168 and accompanying text.

(188.) Pennell v. City of San Jose, 485 U.S. 1, 20 (1988) (Scalia, J., concurring in part and dissenting in part). The Court's ruling in Pennell is especially significant in discerning possible compromise because Justices Brennan, White, Marshall, Blackmun, and Stevens all joined the Chief Justice's majority opinion. See id. at 3. Justices Scalia and O'Connor joined only in part, and Justice Kennedy did not participate in the case. See id. at 20.

(189.) The Court currently uses this approach in the First Amendment area to determine the validity of government regulation of commercial speech. See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2380 (1995) (quoting Board of Trustees v. Fox, 492 U.S. 469, 480 (1989)) ("[T]he `least restrictive means' test has no role in the commercial speech context. `What our decisions require,' instead, `is a "fit" between the legislature's ends and the means chosen to accomplish those ends,' a fit that is not necessarily perfect, but reasonable . . . ."); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 (1993) (quoting Fox, 492 U.S. at 480) ("It [is] the city's burden to establish a `reasonable fit' between its legitimate interests in safety and esthetics and its choice of a limited and selective prohibition of newsracks as the means chosen to serve those interests.").

(190.) Discovery Network, 507 U.S. at 417 n.13 (quoting Fox, 492 U.S. at 480).

(191.) See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-16 (1992).

(192.) Id. at 1016 n.7. Justice Scalia, writing for the Court in Lucas, explicitly recognized the significance of the denominator issue. See id. ("Regrettably, the rhetorical force of our `deprivation of all economically feasible use' rule is greater than its precision, since the rule does not make clear the `property interest' against which the loss of value is to be measured.").

(193.) See id. at 1016-17 n.7; Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 496-99 (1987) (applying "parcel as a whole" analysis); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130-31 (1978) ("`Taking[s]' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. . . . [T]his Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole . . . .").

(194.) But see Douglas W. Kmiec, At Last, the Supreme Court Solves the Takings Puzzle, 19 Harv. J.L. & Pub. Pol'y 147 (1995).

(195.) But see id. at 148, 151-52.

(196.) The two most likely Justices to retire next--Chief Justice Rehnquist and Justice Stevens (with Justice O'Connor as an outside possibility)--would shift the Court's voting in very different directions.

Richard J. Lazarus, Professor of Law, Georgetown University School of Law. This Essay is based on a presentation given April 11, 1996, at a Symposium on Defining Takings: Private Property and the Future of Government Regulation sponsored by the William & Mary School of Law's Institute of Bill of Rights Law. I would like to thank Professor Lynda L. Butler for inviting me to participate in the Symposium and Georgetown University law students Andrea Blander and Andrew Schaefer for their research assistance in preparing this Essay. Finally, I served as counsel for governmental entities in many of the Supreme Court regulatory takings cases discussed in this Essay. This Essay expresses my views alone and not necessarily those of my clients in any of those cases.
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Title Annotation:Defining Takings: Private Property and the Future of Government Regulation
Author:Lazarus, Richard J.
Publication:William and Mary Law Review
Date:Mar 1, 1997
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