Is Land Special?
81 Pages Posted: 16 Apr 2004
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Supreme Court, by limiting the scope of its new per se rule to real property, made clear that it viewed property in land as entitled to a higher degree of protection against regulatory takings than other forms of property. In so doing, it made explicit what had been an implicit favoritism towards real property in the modern law of regulatory takings. The Court gave two reasons in Lucas for its favoritism towards land: the historical treatment of land in the American legal tradition and the expectations of property owners themselves. Neither of these explanations, however, can carry the weight of the Supreme Court's distinction. Nor can the Court turn to normative theory in support of its position. Libertarianism, utilitarian theory, personhood theory, public choice theory, and natural law theory, which together constitute a comprehensive cross-section of the normative accounts of property and takings law, all fail to support a categorical distinction between real and personal property in the regulatory takings context. Because favoritism towards land within regulatory takings law is unjustified, the Lucas doctrine (and, indeed, regulatory takings doctrine as a whole) should apply equally to real and personal property or not at all. The Court's own apparent discomfort with the implications of applying Lucas's per se rule in the context of personal property suggests problems with the Lucas rule itself. And, to the extent that the modern expansion of regulatory takings law has been made more palatable by its artificially narrow focus on land, the unjustified nature of that narrow focus may be a reason for rethinking that expansion.
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