This Essay focuses on a dimension of the regulatory takings issue that has received relatively little attention in what is otherwise a vast amount of literature on the topic: Why the Court is so persistently splintered and its precedent so seemingly schizophrenic. Most academic discussion has focused on the sheer difficulty of reconciling the public's firmly held conception of sacrosanct private property rights with the public's increasing demand for restrictions on the exercise of those same rights when they affect others adversely. This Essay's thesis is that reasons for this phenomenon exist beyond those that have dominated the ongoing academic discourse. These additional reasons are best revealed by piercing the popular fiction that the Court is a monolithic institution. The Court's decisions should instead be read keeping in mind the fact that the Court is simply nine individual Justices who speak through the voice of shifting coalitions of at least five Justices.
38 Wm. & Mary L. Rev. 1099-1142 (1997)
Scholarly Commons Citation
Lazarus, Richard J., "Counting Votes and Discounting Holdings in the Supreme Court's Takings Cases" (1997). Georgetown Law Faculty Publications and Other Works. Paper 156.