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The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court


Richard James Lazarus


Georgetown University Law Center


Hastings Law Journal, Vol. 57, No. 4, Winter 2006
Georgetown Public Law Research Paper No. 847666

Abstract:     
This article takes the measure of Justice Scalia's ability to produce significant opinions for the Court, by focusing on the Court's property rights cases during the past several decades. Much of the analysis relies on the Official Papers of Justice Harry Blackmun, which provide a virtual treasure trove of information revealing the Court's deliberative process when Blackmun was on the Court from 1971 to 1994. The article concludes that Justice Scalia may have appeared an effective champion of pro-property rights rhetoric to those outside the Court, but he has been much less effective within the Court in furthering that agenda. He not only repeatedly failed in his efforts to build a workable majority coalition on the Court, but he instead pushed away potential allies. The upshot was, in the first instance, precedent heavy on strong rhetoric yet light on staying power. In combination with other causes, the ultimate result was a splintering of those Justices, which included more than a simple majority, intuitively sympathetic to property rights claims and the reconstruction of a new majority more often led by Justice John Paul Stevens that returned the law to where it had been prior to Justice Scalia's joining the Court.

Number of Pages in PDF File: 76

Keywords: constituitonal law, supreme court, regulatory taking,property,fifth amendment,environmental law,land use,state and local government,natural resources law

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Date posted: November 15, 2005  

Suggested Citation

Lazarus, Richard James, The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court. Hastings Law Journal, Vol. 57, No. 4, Winter 2006; Georgetown Public Law Research Paper No. 847666. Available at SSRN: http://ssrn.com/abstract=847666

Contact Information

Richard James Lazarus (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9129 (Phone)
202-662-9408 (Fax)
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