Response to Michael C. Blumm & Rachel G. Wolfard, Revisiting Background Principles in Takings Litigation
Part I of this comment reviews Lucas and its use of the concept of background principles as an exception to takings liability. Part II will discuss Professor Blumm and Ms. Wolfard’s important contribution to our understanding of the Lucas opinion’s impact. Professor Blumm and Ms. Wolfard demonstrate that the concept of background principles has taken on a life of its own, significantly limiting the reach of takings law. In Part III, I show how the impact of Lucas has been limited in other ways. While it sought to create a sharply defined area of constitutional protection for property rights, on close reading the opinion displays crucial ambiguities. To paraphrase an old joke, Justice Scalia’s Lucas doctrine is not what it used to be, and it never was.