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

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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. First, he was a master of rhetoric. The result was often to make an opinion look dramatic and game changing, although on closer reading it had only limited legal import. Sometimes lower courts and future decisions chose to run with the rhetoric rather than the specific legal holding – but often they did not.

Second, Scalia never really believed in the case-by-case method of the common law. For that reason, he expected other Justices to follow the sweeping language of his opinions as if they were legislative enactments. He didn’t realize that when they joined his opinions, they were committing themselves only to the outcome and to the application of his reasoning to the specific facts of the case before them. They weren’t necessarily committing to following that reasoning blindly to wherever it lead.

The Supreme Court’s takings decisions aren’t terribly predictable. Perhaps the resurrection of Scalia’s crusade awaits only another appointment or two to the Supreme Court. But for now, Lucas looks more like a fluke than a bellwether.