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Background Principles, Takings, and Libertarian Property: A Reply to Professor Huffman


Michael C. Blumm


Lewis & Clark Law School

J. B. Ruhl


Vanderbilt University - Law School

March 9, 2010

Ecology Law Quarterly, Vol. 37, 2010
FSU College of Law, Public Law Research Paper No. 428
Lewis & Clark Law School Legal Studies Research Paper No. 2010-12

Abstract:     
One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but instead a positivistic explanation of takings cases in the lower courts since Lucas, which include judicial recognition of statutory background principles. In this article, we respond to Huffman, examining the continuing importance of the background principles defense and explaining the trouble with his vision of libertarian property and his peculiar notion of the rule of law. We focus especially on wetlands regulation, which Huffman thinks is a recent development when in fact its origins date to medieval England, and therefore is particularly suited to the background principles defense. We conclude that background principles, as "the logically antecedent inquiry" into the nature of a claimant's property interest, are now a permanent feature of the takings landscape.

Number of Pages in PDF File: 38

Keywords: property, nuisance, takings, environmental law, natural resources law

JEL Classification: K11, K13, K32, Q24, Q28, Q38

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Date posted: March 10, 2010 ; Last revised: October 1, 2010

Suggested Citation

Blumm, Michael C. and Ruhl, J. B., Background Principles, Takings, and Libertarian Property: A Reply to Professor Huffman (March 9, 2010). Ecology Law Quarterly, Vol. 37, 2010; FSU College of Law, Public Law Research Paper No. 428; Lewis & Clark Law School Legal Studies Research Paper No. 2010-12. Available at SSRN: http://ssrn.com/abstract=1567664

Contact Information

Michael C. Blumm (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)
J. B. Ruhl
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
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