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Takings

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On The Twenty-Fifth Anniversary Of Lucas: Making Or Breaking The Takings Claim, Carol Brown Jan 2017

On The Twenty-Fifth Anniversary Of Lucas: Making Or Breaking The Takings Claim, Carol Brown

Law Faculty Publications

In Lucas v. South Carolina Coastal Council, the United States Supreme Court established the premier categorical regulatory takings standard with certain limited exceptions. The Lucas rule establishes that private property owners are entitled to compensation for a taking under the Fifth Amendment Takings Clause when a government regulation “denies all economically beneficial or productive use of land.” Today, Lucas remains the controlling law on categorical regulatory takings. But in application, how much does Lucas still matter?

My review of more than 1,600 cases in state and federal court reveals only twenty-seven cases in twenty-five years in which courts found …


Taking The Takings Claim: A Policy And Economic Analysis Of The Survival Of Takings Claims After Property Transfers, Carol N. Brown Jan 2003

Taking The Takings Claim: A Policy And Economic Analysis Of The Survival Of Takings Claims After Property Transfers, Carol N. Brown

Law Faculty Publications

What ought to be the nature of an owner's right to pursue a regulatory takings claim when the regulation the owner seeks to challenge was in place when the owner acquired the regulated property? Some argue that an owner should not be entitled to challenge such a restriction as a Fifth Amendment taking if the property was already impaired by the regulation at the time the owner acquired it. Proponents of this view contend that allowing subsequent owners to challenge the enforcement of regulations, pre-dating their acquisition of title, and of which they had notice, would confer undeserved windfalls and …