John Echeverria just lately posted “Antonin Scalia’s Flawed Takings Legacy”. The summary:
This essay provides a typically damaging appraisal of the importance of Justice Antonin Scalia’s work on the takings difficulty throughout his tenure on the Supreme Courtroom. Whereas Justice Scalia was a visual advocate for increasing the scope of regulatory takings doctrine, and his opinion for the Courtroom in Lucas v. South Carolina Coastal Council represents an vital precedent, the totality of Scalia’s takings work turned out to be comparatively inconsequential. He solely authored two majority opinions in takings instances throughout 30-plus years on the Courtroom. No grand concept motivated his work on the difficulty, although he was absolutely sympathetic to the potential for the Takings Clause to constrain the permissible scope of presidency regulation. Scalia’s substantive contributions to takings jurisprudence are greatest understood as an effort to elaborate upon the two-part takings take a look at articulated by Justice Lewis Powell in his 1980 opinion for the Courtroom in Agins v. Metropolis of Tiburon. The primary department of this take a look at, suggesting regulation denying economically viable use of property essentially represents a taking, blossomed into the Lucas determination; although undeniably vital, Lucas has turned out to have a comparatively slender scope. The second department of the Agins take a look at, suggesting regulation leads to a taking if it fails to considerably advance a authentic governmental curiosity, was repudiated by a unanimous Supreme Courtroom, together with Scalia himself, within the 2005 determination in Lingle v. Chevron USA Inc.
For extra on Scalia and takings, see right here.