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

38 Pages Posted: 10 Mar 2010 Last revised: 1 Oct 2010

See all articles by Michael C. Blumm

Michael C. Blumm

Lewis & Clark Law School

J. B. Ruhl

Vanderbilt University - Law School

Date Written: March 9, 2010


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.

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

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

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:

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

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J. B. Ruhl

Vanderbilt University - Law School ( email )

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Nashville, TN 37203-1181
United States

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