748
Opinion of Souter, J.
tortious that they treat inverse condemnation as grounding an action in quasi contract, see, e. g., Jacobs v. United States, 290 U. S., at 16. Although the quasi-contractual action seems to be the closest cousin to the plurality's conception of § 1983 as applied here, the resemblance is limited by that strain of quasi-contract 8 theory holding that the defendant must pay for what he has received to avoid unjust enrichment, see E. Farnsworth, Contracts § 2.20, p. 101 (3d ed. 1999), whereas the theory of just compensation for a taking is that the owner must be paid for what he has lost, United States v. Miller, 317 U. S. 369, 373-374 (1943).
After a canvass of these materials, the only conclusion that seems reasonable to me is that prior to the emergence of the modern inverse condemnation action a spectrum of legal theories was employed to respond to the problem of inverse taking. No one of these experiments can be accepted as a definitive analogue of the contemporary action, and each of them is inconsistent in some way with the contemporary view that inverse condemnation enforces payment for the owner's value in property lawfully taken.
b
If the chosen tort analogy were not already too weak to sustain the plurality's position, it would be rendered so by the plurality's inability to identify any tort recovery under the old cases for the government's sin of omission in failing to provide a process of compensation (which the plurality finds at the heart of the § 1983 claim), as distinct from the acts of interfering with use or enjoyment of land. The plurality simply fails to find any analogue on this element, and its failure is in fact matched by the failure of its § 1983 theory to fit the reality of § 1983 litigation for inverse takings. When an inverse condemnation claim is brought under § 1983, the "provision" of law that is thereby enforced,
8 See 1 R. Lord, Williston on Contracts § 1.6, pp. 27-28 (4th ed. 1990) (restitution not limited by theory of unjust enrichment).
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