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Lucas v. South Carolina Coastal Council is one of several recent Supreme Court decisions in which the Court used the Just Compensation Clause as a "weapon of reaction" to strike down an offending land use restriction. In Lucas, the target of the Court's animus was a state law prohibiting a landowner from developing two beachfront lots. The South Carolina Supreme Court upheld the law as a legitimate exercise of the State's police power to protect the public from harm in the face of a takings challenge by the landowner. The U.S. Supreme Court rejected the South Carolina court's talismatic reliance on police power authority. Instead, the Court focused its attention on the fact that the application of the state law deprived this particular landowner of all economically beneficial use of his property, and put forward a new "bright line" rule to guide lower courts in such situations--that compensation will be required whenever a regulation has the effect of economically confiscating private property. But, the rule that emerged from Lucas is anything but "bright," because the majority included an exception for limitations that "inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place on land ownership." The apparent rationale behind the exception is that such laws do no more than could have been achieved by courts applying common law principles. However, the exact meaning of the italicized phrase, and hence its effect, is far from clear, and the phrase has drawn the attention of many commentators. It is the focus of this article as well.

This article suggests that Lucas was primarily an attempt by the Court to simplify the judicial task of resolving what Robert Gordon refers to as the "hard cases" involving land use disputes, and that, with respect to laws protecting wildlife, the Court did not succeed in its quest. "Hard cases" arise because the Court's approach to land use disputes that arise in a constitutional setting requires judges to arbitrate among reasonable property uses in a regulated commons of relative rights. By substituting a reflexive, "bright line" rule for "artful harm-preventing characterizations" and other highly flexible prudential memes, like "noxious use" and "average reciprocity of advantage," the Lucas Court may have been trying to get out of Gordon's relative rights box by converting a landowner's relative use right into an unassailable privilege, thereby simplifying the task of the lower courts. But Lucas may have perversely achieved precisely the opposite result because the Court did not completely eliminate these atavistic doctrinal defenses. Instead, the majority tried to cabin them by anchoring them to common law principles. However, these principles come from an era when property rights were anything but absolute, and remain frozen in that earlier time, when a pig in a parlor was a nuisance and property ownership included responsibilities to the larger community. These principles tell a very different story and potentially justify a wide array of land use restrictions, including those protective of wildlife.

The Court's reliance on common law principles to craft an exception to its per se compensation rule misapprehended the continued robustness of old maxims, such as those restricting the uses to which private property can be put when they threaten wildlife, and thus potentially created an exception much wider than intended. Far from simplifying the takings catechism, the resultant misalignment of these principles with landowners' current, albeit misguided, "understandings" of the State's power over the "bundle of rights" acquired with the title to property, reveals that the Lucas Court made a major error. This error will result in the continuation of the muddle of the relative rights model, with all of the attendant difficulties of reconciling relational rights with absolute ownership norms, the very "muddle" of takings jurisprudence, this article postulates, that the Court sought to undo in Lucas. The error all but guarantees continued conflict and confusion over the extent of those rights whenever restrictive laws are applied. All is not lost, however, because by making common law understandings of land ownership part of the baseline of any post-Lucas takings analysis, the Court may have inadvertently created a golden opportunity for a return to a more neighborly society and a more ecologically sensitive land use ethic, in which conflicts over the uses of private property disappear.

The article uses the example of wildlife laws in which to develop these disparate thoughts. Part II briefly discusses the effect of wildlife protection regulations on private land use, and the equity issues raised by their idiosyncratic application. Part III shows how English understandings about the rights and duties of landowners influenced colonial expectations about similar matters at the time of the founding of this country. These understandings are quite different from the ones we have today about property ownership and reveal a legal convention substantially encumbered by communal obligations, including the obligation to protect wildlife. While Locke's view of private property as a pantheon of important political liberty rights played a formative role in the early rhetoric of this country, it did not reflect or disturb long-held understandings about the conditional and communally restricted nature of rights in property. It is the encumbered, non-Lockean view of property that undergirds the background principles of most states' common law. Part III additionally shows how early colonial law also harbored a deep-seated hostility toward wilderness and explains how some English property doctrines were changed in this country to facilitate cultivation of wild (or "waste") lands, the very lands that are prized today as wildlife habitat.

Part IV of the article traces the common law roots of our modern wildlife laws and shows how the common law doctrines of state wildlife trust and public trust have protected wildlife in this country because of their importance as communal resources. But this review of the historical antecedents of various common law doctrines and their present day application reveals a legacy at odds with the obvious intent of the majority in Lucas to fashion a narrow exception to the Court's per se compensation rule and with the exclusive, absolute dominion expectations of most modern landowners. Part V of the article takes a slightly more theoretical look at the communal values underpinning the doctrines described in part IV by examining the writings of several property scholars who fear that modern "property rights talk" may suppress these more propitious norms. The article concludes that the Lucas exception may allow wildlife to slip through the Court's takings net. But, unless modern expectations about the correlative rights and obligations of property ownership are aligned more closely with the communal values reflected in the background principles of common law discussed in part V, the legacy of Lucas will be continued conflict between the individualistic aspirations of private landowners and the more commonweal goals of government regulators, and a golden opportunity to effectuate a more civil society created by the Court's exception will have been lost.

Publication Citation

85 Iowa L. Rev. 849-905 (2000)