Lucas's Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses

Abstract:     
Advocates for expanded property rights heralded the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission as the dawn of a new era in which landowners would obtain increased constitutional compensation for the burdens of regulation, and which in turn would discourage regulatory initiatives. The post-Lucas era has been a considerable disappointment to property rights advocates, however. Ensuing decisions have confined the categorical takings rule to regulations that result in complete economic wipeouts, a rare phenomenon. On the other hand, courts have expansively interpreted the decision's exemption from compensation for regulations that merely forbid uses prohibited by background principles of property and nuisance law. In fact, a dozen or more categorical defenses have evolved under the Lucas decision's background principles inquiry. Thus, surprisingly enough, Lucas's chief effect has been to make the nature of the claimant's property interest a threshold issue in all takings cases. Instead of increasing the likelihood of either landowner compensation or deregulation, Lucas's principal legacy lies in affording government defendants numerous effective categorical defenses with which to defeat takings claims.

Keywords: Takings, Constitutional Law, Land Use Regulation, Environmental Law

JEL Classifications: D74, K11, K32, O38, Q24

Accepted Paper Series