Swallowing the Rule: The Lucas Background Principles Exception to Takings Liability

Abstract

In a recent article, Michael Blumm and Rachel Wolfard explore the scope of the “background principles” exception to the Supreme Court’s per se takings rule in Lucas v. South Carolina Coastal Council for regulations that result in economic wipeouts. In this response, I evaluate the authors’ documentation of how Lucas’s impact has differed from initial expectations and the role that the background principles exception has played in that evolution. I also appraise the authors’ assessment of Lucas’s framing of the background principles exception as a threshold inquiry, arguing that courts had applied this rubric before Lucas, but not always in the same context that the background principles exception entails. Finally, I explore the authors’ interpretation of the scope of the background principles exception, both as a descriptive and normative matter. I agree with them that, if applied as expansively as they advocate and as courts appear to have done, the exception in effect reinstates the harm prevention rationale for denying takings liability that the Lucas Court purported to eliminate.

Keywords: regulatory taking, background principles exception, Lucas v. South Carolina Coastal Council, Fifth Amendment, Takings Clause