Foreground Principles

Abstract

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question.

The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the “background principles” inquiry has wrought, and questions the self-contained nature of this inquiry. In doing so, it asserts that a focus on connecting or disconnecting challenged regulations to what are, at times, antiquated background common law principles can come at the expense of a more direct and transparent consideration of what is in the foreground: the public and private interests implicated by the challenged regulations in the modern context within which those regulations are promulgated. The Article advocates de-emphasizing the background principles inquiry in favor of a contextual analysis that is centered on fairness and recognizes that background principles might not be sufficient to deal with modern problems and serve modern human needs.

Keywords: property, takings, Lucas, background principles, foreground principles