Response to Michael C. Blumm & Rachel G. Wolfard, Revisiting Background Principles in Takings Litigation
This essay explores the authors’ assessment of the long-term impact of Lucas and why it was not transformative in precisely the way that many had expected it to be, and their valuable documentation of how the lower courts have expanded the circumstances in which the background principles exception applies. In addition, this essay evaluates the authors’ assertion that Lucas identified a threshold inquiry into the nature of the property rights held by the takings claimant, concluding that courts had explored that question before Lucas, albeit not always in the same context that the background principles exception entails. Finally, this essay assesses the authors’ interpretation of the scope of the background principles exception. It agrees with them that, if applied as expansively as the authors assert that it should be (and largely has been), the exception in effect reinstates the harm prevention rationale for denying takings liability that the Lucas Court purported to eliminate.