Property Myths, Judicial Activism, and the Lucas Case

This edited speech, delivered at a land use conference shortly after the Supreme Court decided Lucas v. South Carolina Coastal Commission in 1992, questioned several premises of the decision and criticized Justice Scalia's opinion for the Court. The essay suggested that the Court lost its way in its discussion of nuisance law, its attempt to separate takings of personalty from realty, and seeming to call for strict scrutiny of government regulations that landowners' allege work takings. The essay claimed that Justice Scalia's fundamental error was to equate property rights with development rights.