Document Type

Article

Publication Title

Loyola of Los Angeles Law Review

Abstract

An old and familiar adage of great relevance to the Takings Clause is that turnabout is fair play. The recent decision of Lucas v. South Carolina Coastal Council illustrates the soundness of that general proposition, but perhaps not in a sense the Justices might appreciate. Most of the attention to the case is rightly given to the majority opinion of Justice Scalia, with more than a passing nod to the concurrence of Justice Kennedy. These two dominant opinions present a large target, for while they touch upon many of the most important issues of takings law, they falter on at least two critical points. First, as a doctrinal matter, they do not explain why one legal regime should be applied to the tiny, and soon to be extinct, class of total regulatory takings, while accepting a far more lax regime for the far more important class of partial regulatory takings. Second, they do not explain how the idea of reasonable, or investmentbacked, expectations, on which both Justices place so much weight, explains or justifies the basic contours of takings law, or for that matter the private law of nuisance, on which the Scalia opinion relies by way of analogy. On this occasion, however, I shall not direct my fire towards the views of the Scalia or Kennedy opinions, not because I am persuaded by their reasoning, but because I have already reviewed them at length elsewhere. Instead I shall concern myself with the two Lucas dissents. I do so for several reasons. First, it is important to make clear that takings law, like any other important head of jurisprudence, cannot be reduced to a one-dimensional opposition between a single thesis and its antithesis. As is the case with religion and speech, the number of permutations of doctrinal analysis is legion. Many other consistent positions may be attractive to those who reject the decision of the Court while seeking to avoid the deadly clutches of the dissent. Second, any conceptual difficulties lurking in the opinions of Scalia and Kennedy are borne of an honest struggle to make sense of the Takings Clause. That task is complicated enough when the constitutional text stands alone, but it has been made more formidable still by the grotesque judicial gloss on the clause that now passes for constitutional interpretation. The errors of Scalia and Kennedy arose in part from their efforts to rehabilitate the Takings Clause as a limit on government action in the teeth of an unbroken line of cases upholding state land use regulation from the days of Village of Euclid v. Ambler Realty Co. to the present.

First Page

955

Volume

26

Publication Date

1993

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