Lucas v. South Carolina Coastal Council
A Tangled Web of Expectations
Bibliographic Data
| ID | 10792114 |
|---|---|
| Authors | Richard A Epstein (0000-0001-6624-7311, University of Chicago, corresponding author) |
| Year | 1993 |
| Volume | 45 |
| Issue | 5 |
| Pages | 1369 |
| Publication date | 1993-05-01 |
| Peer Reviewed | Yes |
| Open Access | No |
| Type | ARTICLE |
| Venue | Stanford Law Review (JOURNAL) |
| Journal identifiers | ISSN: 0038-9765 • E-ISSN: 1939-8581 |
| Publisher | JSTOR (PUBLISHER) |
| DOI | 10.2307/1229072 |
| OpenAlex | W628888805 |
| Language | EN |
| Citations received | 4 |
Although anticipated before its arrival, last term's decision in Lucas v. South Carolina Coastal Council ' has been rightly regarded as anticlimactic. To be sure, the decision represents something of a high water mark in takings jurisprudence, for a six justice majority of the Court2 allowed that some restrictions on land use might in principle be caught by the Takings Clause. But what the Court gave with one hand, it took away with the other. Justice Scalia held that the Takings Clause reached only those land use restrictions that deprived the owner of all economically beneficial uses of property.3 The proper status of permanent but partial restrictions on land use was not explicitly addressed, but these may now be regarded as legitimate and noncompensable exercises under the state police power. Yet even with total regulatory takings, Justice Scalia stopped short of embracing Lucas's theory that the total loss of beneficial use constitutes a per se compensable taking. Rather, he held that even for total regulatory takings a second test had to be passed as well: If the regulated activity constitutes some form of noxious use or nuisance-like activity subject to regulation at common law, then the state need not compensate the landowner for any resulting economic loss.4 Scalia's constitutional edifice thus rests on two critical distinctions. The first is whether the restriction on use is partial or total. If partial, then the constitutional inquiry is at its end, and the restriction is sustained. If total, then
Geography · Political science · South carolina · Legal Systems and Judicial Processes · Property Rights and Legal Doctrine · Public Administration
| Unique citing works | 4 |
|---|---|
| Citations per year | 0.16 |
| Citation span | 2001 - 2021 (21) |
| Citation velocity | historical |
| Highly cited | No |
| Citation types | Neutral: 4 |