Lucas: a small step in the right direction.

• Author: Huffman, James L.
• Position: A Colloquium on Lucas

I am a little uncomfortable here. I'm not used to having Ed Sullivan so close to me on the left,(1) and I am certainly not used to having Michael Blumm on my right.(2) I am also a little confused by the rules of this panel discussion. The chairman, whom I assume to be an authoritative source, proclaimed that we would each have ten minutes to speak, but the precedent established by the prior speakers tells me that I should have twelve or thirteen minutes.

My dilemma is not unrelated to the topic of this panel discussion. The Constitution sets forth a clear requirement of compensation when the government takes private property.(3) Over the last several decades, the U.S. Supreme Court has ignored that clear language while making an absolute mess of takings jurisprudence. Don Large is surely right when he says that it is a pointless enterprise for Justices Scalia and Blackmun to try to make sense of that jurisprudence.(4) Judges, lawyers, and academics have been trying to make sense of the Supreme Court's takings decisions for a century without success. So we ought to start over. In that sense, Lucas(5) is not a very good opinion because it does not start over. It tries to make sense of the existing law. But, there is some interesting language in Lucas that has promise from the point of view of those interested in maintaining a coherent system of property rights, not to mention those interested in complying with the Constitution.

Basically, the problem we face is to be blamed on Justice Holmes. Holmes said in Pennsylvania Coal that a regulation works a taking if it goes "too far."(6) That is absolutely the most useless statement one could make on this subject. It provides no guidance whatsoever to those who would seek to know the extent of their property rights. Nor does it provide any guidance to those who would seek to know the limits of their regulatory powers. If our definition of property rights is dependent upon whether a regulation goes too far, investors will be skeptical and regulators will be ambitious. So, we can blame it on Holmes, but that does not help us to solve the problem.

The Lucas case is significant because it insists that the relevant question is; what rights does the property owner have?(7) This is precisely the question every prospective property owner asks, via a title search, prior to acquisition. Surely it is an even more important question, from the point of view of the property owner, once property is acquired. What rights did the property owner acquire and what rights does the property owner have? It is certainly possible to have a property system in which rights are subject to arbitrary imposition of limitations and regulations, but the resultant properties will be of little value. Thus, the Lucas majority's...