Looking Back on Lucas

by Daniel Farber | December 11, 2017

Lucas v. South Carolina Coastal Commission was 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. 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. Twenty-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 ...

The Flood of Takings Cases after Hurricane Harvey

by John Echeverria | October 23, 2017
On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project's dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes ...

Murr v. Wisconsin: The 'Whole Parcel' Rule Prevails, At Least in This Regulatory Takings Case

by Robert Glicksman | July 05, 2017
Originally published by the George Washington Law Review How should a court assessing a regulatory takings claim define the "property" allegedly taken to assess the degree of the economic impact the regulation has on it? That question has plagued the Supreme Court for nearly a century, with different and conflicting answers emerging, sometimes in relatively rapid succession. In Murr v. Wisconsin,[1] the Court has provided its most comprehensive answer to the so-called "denominator" question so far, although even the analytical framework ...

CPR's John Echeverria's NY Times Op-Ed on Supreme Court's Latest 'Takings' Decision

by Matthew Freeman | June 28, 2013
CPR Member Scholar John Echeverria has an op-ed in Wednesday's New York Times on the Supreme Court's end-of-term decision in a land-use case, Koontz v. St. Johns River Water Management District. Although the case has been somewhat overlooked amidst the Court's evisceration of the Voting Rights Act, and its landmark decisions on same-sex marriage, it has long-term and critical implications. Echeverria warns that the decision will: result in long-lasting harm to America’s communities. That’s because the ruling creates a perverse incentive ...

In Stop the Beach Renourishment Ruling, Conservatives Come up One Vote Short in Quest to Remake Property Rights Law

by John Echeverria | June 17, 2010
If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States. The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” ...

The Florida Beach Case Comes to Supreme Court: A Badly Flawed Test Case for Property Rights Advocates

by John Echeverria | November 30, 2009
On Wednesday, the U.S. Supreme Court will hear oral argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection. By the time they finish hearing from both sides, the justices may wonder whether this case was worth their time and effort. (My amicus brief on the case is here). Petitioner is a small non-profit organization whose members own coastal properties in two communities along the Florida panhandle. Petitioner’s primary argument is that its members suffered “takings” of their ...

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