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Background principles and the rule of law
Huffman, James L.
Huffman, James L.
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"Property right advocates welcomed the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Council. Justice Scalia's opinion for the Court established a categorical taking when all economic value is lost as a result of regulation. Advocates of unconstrained environmental and land use regulation were quick to suggest (wishfully) that Lucas's impacts would be minimal since most regulations do not destroy all economic value. Fifteen years later, some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of gold at its end. This newly optimistic understanding of Lucas stems from Justice Scalia's reference to "background principles" of common law nuisance and property. These background principles serve not only as an exception in categorical takings, but also as an affirmative defense that immunizes government from virtually all takings claims. In this Article, I argue that there is nothing extraordinary in Justice Scalia's statement that background principles of the common law are relevant to the definition of property rights. What is extraordinary is the claim that, consistent with the historic evolution of the common law, these principles are almost infinitely malleable in the hands of courts and legislatures. It is this claim that creates the deception of a pot of gold at the end of the Lucas rainbow, and it reflects a misunderstanding of the common law process, a distortion of Justice Scalia's meaning in Lucas, and disregard for the requirements of the Fifth Amendment takings clause." (p. 1)
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2008
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With permission of the license/copyright holder