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Background Principles, Takings, and Libertarian Property: A Reply to Professor Huffman

dc.contributor.authorRuhl, J. B.
dc.contributor.authorBlumm, Michael C.
dc.identifier.citation37 Ecology L.Q. 805 (2010)en_US
dc.description.abstractOne of the principal, if unexpected, results of the Supreme Court's 1992 decision in "Lucas v. South Carolina" Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but instead a positivistic explanation of takings cases in the lower courts since Lucas, which include judicial recognition of statutory background principles. In this article, we respond to Huffman, examining the continuing importance of the background principles defense and explaining the trouble with his vision of libertarian property and his peculiar notion of the rule of law. We focus especially on wetlands regulation, which Huffman thinks is a recent development when in fact its origins date to medieval England, and therefore is particularly suited to the background principles defense. We conclude that background principles, as "the logically antecedent inquiry" into the nature of a claimant's property interest, are now a permanent feature of the takings landscape.en_US
dc.format.extent1 document (39 pages)en_US
dc.publisherEcology Law Quarterlyen_US
dc.subjectLucas v. South Carolinaen_US
dc.subject.lcshEminent domain -- United Statesen_US
dc.subject.lcshWetlands -- Law and legislation -- United Statesen_US
dc.subject.lcshHuffman, James, 1945-en_US
dc.titleBackground Principles, Takings, and Libertarian Property: A Reply to Professor Huffmanen_US

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