Panel discussion.

• Position: A Colloquium on Lucas

Large - Just to keep it brief, one fact I always thought was curious in Lucas was in the record - it was in the brief and it was argued, but it doesn't come up in any of the opinion - is that to purchase the property he paid $60,000 down and took a $900,000 mortgage, which also covered his principal residence. So, unlike a lot of these other cases, where the landowner just looses an expectancy whether justified or not, if he looses the case, he not only loses the expectancy, he loses his principal residence and probably has to declare bankruptcy. I'm not acquainted with the rest of his financial posture, but that is a hell of a lot of money to immediately wipe out and try and cover out of your home. Both Bill and Ed said things that sort of touched on this point. I particularly liked Ed's line that the Court knew where it wanted to be and sort of cobbled its way to justify its position. So to Ed: Do you think that Lucas' bankruptcy potential had any influence on what the Court did and, if so, is there any way factors like that can be more rationally included in the determination rather than just sort of hovering back, to be ignored until they simply become too unfair?

Sullivan - My view is that the Court took this case because it was an egregious fact situation. I think the Court wanted to move closer to finding a taking by regulation in a concrete case by eroding possible defenses such as ripeness. The opinion does not appear to be too much different from the line of taking cases over the last twenty years. The Court said if all value is deprived, then a taking occurs. But the real difference is found in the footnotes, which will be used as support for takings determinations in latter cases. So, there was strategic value in taking up this case and making it the vehicle for the 1991-92 Term.

Huffman - I think that's right. If viewed that way, I think it can be a nice precursor to cases that raise the question of the size of the parcel. For example, if a regulation requires maintaining twelve acres as a wetland, we could then say there is a total loss of value on those twelve acres, regardless of the size of the original parcel. The Lucas opinion is a nice grounding for that direction, which I'd love to see the Court pursue although I'm not optimistic that they will.

Funk - I want to ask Mike Blumm, what does he mean by a legislative fact? I could say a legislative fact is whatever a majority says is a fact. When political people act, we don't primarily expect them to act pursuant to some instrumental rationality - the way we expect agencies to act. That is, we expect political people to act politically, which is to say responsively to their publics. George Bush did at least one rational thing as President, and that was that he approved a tax increase. Every economist agrees that was a rational thing to do, but it is the one thing he's being pilloried for, because that's not what he was elected to do. He was elected on the basis of "read my lips, no new taxes." The voter punishes representatives who don't do what the voter wants. We send people to Washington to do what we tell them to do, not to do what somebody says is rational. So, I don't expect legislatures to act rationally in the way I expect agencies to. Indeed, I want them responsive to the people rather than some scientific rationality. I think that's their job. Now, I want to ask Jim Huffman ....

Blumm - Wait a minute. You can't move on like that. Can he? You did have a question for me, didn't you, Bill?

Funk - And you'll get a chance to answer it, too. But first, Professor Huffman, you threw out the idea that the Endangered Species Act is not part of property law, and my question is: why isn't it? I can agree that, for the people who owned property at the time it was enacted, it changed the system, altered their expectations, etcetera, so maybe it could effect a taking for them. But someone who buys subsequent to the passage of the Endangered Species Act, they go out, look at some property, and say, oh, this is a beautiful forest, look at those funny little owls, aren't they cute; I want to buy the land; I want to cut the trees. Aren't these people on notice? Isn't the Endangered Species Act now part of their background understanding of the law? Even if it is only subsequent events that identify...