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Lucas's Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses

Michael C. Blumm

Lewis & Clark Law School

Lucus Ritchie


Harvard Environmental Law Review, Vol. 29, p. 329, 2005

Advocates for expanded property rights heralded the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission as the dawn of a new era in which landowners would obtain increased constitutional compensation for the burdens of regulation, and which in turn would discourage regulatory initiatives. The post-Lucas era has been a considerable disappointment to property rights advocates, however. Ensuing decisions have confined the categorical takings rule to regulations that result in complete economic wipeouts, a rare phenomenon. On the other hand, courts have expansively interpreted the decision's exemption from compensation for regulations that merely forbid uses prohibited by background principles of property and nuisance law. In fact, a dozen or more categorical defenses have evolved under the Lucas decision's background principles inquiry. Thus, surprisingly enough, Lucas's chief effect has been to make the nature of the claimant's property interest a threshold issue in all takings cases. Instead of increasing the likelihood of either landowner compensation or deregulation, Lucas's principal legacy lies in affording government defendants numerous effective categorical defenses with which to defeat takings claims.

Number of Pages in PDF File: 48

Keywords: Takings, Constitutional Law, Land Use Regulation, Environmental Law

JEL Classification: D74, K11, K32, O38, Q24

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Date posted: June 28, 2005  

Suggested Citation

Blumm, Michael C. and Ritchie, Lucus, Lucas's Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses. Harvard Environmental Law Review, Vol. 29, p. 329, 2005. Available at SSRN: https://ssrn.com/abstract=753604

Contact Information

Michael C. Blumm (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)
Lucus Ritchie
Independent ( email )
No Address Available
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