In this article, I argue that from 1992 (when the Lucas case was decided) and for almost ten years thereafter, what I call the "Scalian view" of property and justice dominated Supreme Court jurisprudence. Under this vision, property provides a concrete, objectively knowable, and immutable legal barrier which marks the line between protected individual interests and the exercise of collective power. If government transgresses this line, the individual is almost always deemed to have been wronged. And compensation is required, as a matter of "justice," under the Takings Clause. I argue that with the Court's decisions in Palazzolo and Tahoe in 2001 and 2002, the Scalian view collapsed. No longer would the fact of individual loss - even significant individual loss - necessarily compel the conclusion that a wrong has occurred, or drive an award of compensation home. And no longer would justice, in takings, be seen in only "compensatory" terms. Although the collapse of the Scalian view might be seen as an abrupt or startling turn, I argue that it is, in fact, a very predictable product of the Court's prior taking jurisprudence. Neither the Scalian view's idea of property, nor its conception of justice, could be sustained as the Court's understanding of the range of potential takings expanded and the complexity of property conflicts grew. Indeed, the very ideas that form the core of the Scalian view served to doom it, from the outset, as a viable juridical principle. Thus, I argue that the collapse of the Scalian view is an entirely inevitable outcome. I also argue that it is an entirely welcome outcome, in our effort to reassert sensible notions of takings and justice.
Laura S. Underkuffler, Tahoe’s Requiem: The Death of the Scalian View of Property and Justice, 21 Constitutional Commentary (2006)