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A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne
A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne
Georgetown Law Faculty Publications and Other Works
No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation.
Judicial Activism In The Regulatory Takings Opinions Of Justice Scalia, J. Peter Byrne
Judicial Activism In The Regulatory Takings Opinions Of Justice Scalia, J. Peter Byrne
Georgetown Law Faculty Publications and Other Works
If the question is whether the Court's recent property rights decisions represent unwarranted judicial activism, my answer is an unequivocal "Yes!" Explaining why requires some care. After all the jurisprudential battles of the recent past, it is hard to state what makes a decision "activist," let alone unwarrantedly so.
The Armstrong Principle, The Narratives Of Takings, And Compensation Statutes, William Michael Treanor
The Armstrong Principle, The Narratives Of Takings, And Compensation Statutes, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
The Takings Clause of the Fifth Amendment is famous for inspiring disagreement. More than one hundred years have passed since the Supreme Court departed from the original understanding of the clause and interpreted regulations as potentially falling within its ambit. Although the passage of time has established the principle that regulations can run afoul of the Takings Clause, the Court has been unable to offer a coherent vision of when compensation is required. Academic commentators also have failed to reach agreement on the issue, offering an enormous range of solutions to the takings question. The newest field of controversy involves …