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

22 Pages Posted: 15 Sep 2020 Last revised: 28 Sep 2020

See all articles by Robert L. Glicksman

Robert L. Glicksman

George Washington University - Law School

Date Written: September 25, 2020

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

Suggested Citation

Glicksman, Robert L., Swallowing the Rule: The Lucas Background Principles Exception to Takings Liability (September 25, 2020). 71 Florida Law Review Forum 121 (2020), GWU Legal Studies Research Paper No. 2020-59, GWU Law School Public Law Research Paper No. 2020-59, Available at SSRN: https://ssrn.com/abstract=3620537 or http://dx.doi.org/10.2139/ssrn.3620537

Robert L. Glicksman (Contact Author)

George Washington University - Law School ( email )

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HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

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