Response to Michael C. Blumm & Rachel G. Wolfard, Revisting Background Principles in Takings Litigation
The exception to the rule the United States Supreme Court established in Lucas v. South Carolina Coastal Council undercuts that rule more than the Court probably anticipated, as Professor Michael C. Blumm and Ms. Rachel G. Wolfard persuasively demonstrate in a recent article. And Lucas effectively upheld earlier case law that it claimed to modify, as Professor Robert L. Glicksman persuasively shows in his response to their article. This Article will not take issue with those authors’ conclusions but will carry their analysis one step further. It argues that the “background principles” exception that Lucas claims to have recognized is, for purely linguistic reasons, not an exception to the rule of that case. Justice Kennedy alluded to this fact in his Lucas concurrence, remarking on the “inherent . . . circularity” of the Court’s analysis. Professor Glicksman recognizes this circularity and states, even in his title, that the exception swallows the rule. The Lucas Court’s discussion goes beyond circularity, however, effectively swallowing its own tail. It sets forth a rule that at best contains two clauses that are redundant and at worst intrinsically incorporates its own inconsistent exception.