Looking back on Lucas

Dan Farber recently posted at Legal Planet on the 35th anniversary of Lucas v. South Carolina Coastal Commission, "the high-water mark of the Supreme Court’s expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation." (For an earlier post on the case, see here.) Farber writes:
Lucas epitomized the late Justice Scalia’s crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government’s power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government. Thirty-five years later, it is striking how little impact the case has had.
Understanding the reasons requires something of a deep dive into the case and its complicated legal setting. Lucas had purchased two lots on an island in 1986. Two years later, the state had passed a beachfront management act, which prohibited new construction on the island because it was in a high erosion zone. Relying primarily on dicta in preceding cases, the Court held that “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” Thus, while an owner deprived of 95% of the property’s use might sometimes recover nothing, the owner deprived of 100% would recover completely, due to the bright-line nature of the rule. 
David Lucas on the lot at stake
*****
In retrospect, the Lucas rule had some fundamental flaws that limited its potential to restrain regulators. First, it is extremely rare to find that a regulation leaves land with literally no value. It probably wasn’t even true in the Lucas case itself. Second, the legal foundations of the opinion were flimsy. Scalia cited only dicta in earlier cases, that is, language in those cases that wasn’t really necessary and for that reason wasn’t binding. And... Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government’s power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government.
Lucas’s limited influence compared to early fears has something to do with Justice Scalia’s approach to opinion writing.
Read more »

Comments

Post a Comment

Popular posts from this blog

Digital library IV: Bartolus's Tractatus de fluminibus seu Tyberiadis

Image
After beginning the digital library of historical environmental law with works from the last few hundred years, we go back in time this week to the fourteenth century and the  Tractatus de fluminibus seu Tyberiadis  (1355,  1576 edition (source of the images in this post) here ) of the great medieval Italian jurist Bartolus of Saxoferrato. As Bartolus explained at the beginning of the work, he was inspired to write the book while on vacation near Perugia, despite his attempts to enjoy his vacation and stay away from legal scholarship: This river [Tiber]... circles that splendid mountain on which the city of Perugia is situated and while flowing a great distance through its district, the river itself is bordered by plains, hills and similar places. These places are also well inhabited, enhanced with many beautiful buildings and luscious orchards bearing lots of fruit. Thus, when I was resting from my lecturing and in order to relax, was travelling towards a certain villa situated near ...
Read more

The earliest boundary water treaty

Image
Figure 1:  Memorial cone of the Mesilim Treaty Thanks to Peter Sand for contributing this post! [Footnotes after the jump.] The Musée du Louvre in Paris holds tangible evidence of the world’s first known legal agreement on boundary water resources: viz., the Mesilim Treaty , concluded in the 25th century B.C. between the two Mesopotamian states of Lagash and Umma . The terms of the treaty have been preserved as cuneiform inscriptions on a limestone cone (figure 1) and a stele commemorating Lagash’s victorious battle enforcing the treaty.[1] Fragments of both artifacts were excavated in 1878-1912 by French archeologists on sites at Tellō ( Tall Lawh, Dhi Qar Governate in Southern Iraq), the ancient temple-city of Girsu, once the capital of Lagash.[2] The inscriptions, transcribed and translated into French, German, Italian and English,[3] turned out to match several other texts on corresponding archeological finds of the period. The key exhibit, the so-called ‘Stele of the Vultures’, d...
Read more

Before Trump

Image
Today's "This Day in Water History" has this: Judson Harmon, c. 1912 June 11, 1895: First day of tenure of Judson Harmon as U.S. Attorney General. “Harmon issued the most explicit statement of what became known as the American doctrine of absolute sovereignty, that “the rules, principles and precedents of international law impose no liability or obligation upon the United States,” in a case involving a claim by Mexico for damages from diverting the waters of the Rio Grande.” Or, as one source put it: “US Attorney General Judson Harmon tells Mexico that the US will ‘do whatever it pleases’ with water from the Rio Grande.” Commentary: Even for those days, this was a pretty amazing statement.
Read more