Property myths, judicial activism, and the Lucas case.

• Author: Blumm, Michael C.
• Position: A Colloquium on Lucas

If you were to put words in my mouth, Professor Huffman,(1) I would fully expect the great environmental goddess in the sky to come down here and strike me down as I speak. You should be comforted to know that, whether I sit on your right or your left, I disagree with almost everything you said. I also find myself troubled by one of Bill Funk's statements. Bill claimed that if the government had to pay for things it got "free," that might change the way we look at environmental regulation.(2) My question is: doesn't that presuppose the existence of development rights? Huffman is, of course, right to suggest that we must have a definition of property rights before we know what the government got free,(3) but his definition assumes that development rights are essential property rights. That is a theory that Anglo-American law has never accepted, and one that I have argued elsewhere is inconsistent with life in the late twentieth century,(4) although it might be appropriate for life on Mars.(5)

Jim Huffman's solution is, I think, very close to that of Justice Scalia, which is to separate property notions from positive law requirements contained in the South Carolina Beachfront Management Act and other environmental and land use regulations. Their idea is to decide rights on the basis of good sound, dependable, concrete property law. That approach makes sense only if you don't understand property law.

The relevant property law is the law of nuisance. Every first-year law student learns that a nuisance is a substantial and unreasonable interference with the use of another person's property or the rights of the public.(6) What constitutes "substantial and unreasonable" is highly uncertain and has always been highly uncertain. Consult Morton Horowitz on the history of nuisance law; people have always had their expectations disappointed because of nuisance law.(7) Moreover, nuisance law includes, there is no question, the background of statutes. What is substantial and unreasonable is a reflection of what the Endangered Species Act,(8) or section 404 of the Clean Water Act,(10) or the South Carolina Beachfront Management Act(10) requires. There's no sharp separation between property law on the one hand and environmental regulation on the other hand. That is simply a false dichotomy.

Nuisance means harm. Why should only courts be in the business of suggesting what is harmful? Why can't statutes, why can't legislators declare harm? Legislatures have greater fact-finding capabilities than courts. In fact, as Don Large pointed out, the old cases, like Mugler,(11) Hadacheck,(12) and Miller v. Schoene(13) were about statutory, not common law nuisances.(14) Those cases involved changes effected by the legislature. It was intellectually dishonest for Justice Scalia to have assumed otherwise.

As Bill Funk said, since Justice Scalia raised without answering the "size of the property" issue, it's hard to know how significant a case Lucas is.(15) My bet is that we're at the end of what we will look back on as a transition era, where the Court was fumbling around with basic concepts. We might date this transition era from the 1987 takings trilogy,(16) especially the Nollan case, where the Court announced that it was going to look more carefully at certain kinds of regulation, and not give as much deference to certain kinds of legislative findings.(17) Many people thought that Nollan was the beginning of a rise of substantive due process in the property rights area,(18) something which Professor Huffman has been advocating for years.(19) That should remind students of constitutional law of the Lochner era, when judges decided large social policy issues and reversed legislative action on the basis of their notions of liberty and contract.(20) Lochner and its progeny helped bring on a constitutional crisis, you may recall.(21)

We seem to be heading toward a new era of close judicial scrutiny in the name of property rights, especially since another case from the 1987 takings trilogy, the First English case,(22) makes money available in takings cases. First English held that landowners may collect damages for temporary takings.(23) There is no question that there is now an active bar interested in arguing taking cases on contingent fees. And there are a few people, like Richard Epstein - who wrote an amicus brief in Lucas on which Justice Scalia relied heavily(24) - who are pushing for a property rights revolution out of their vision of public spiritedness.(25) We also have the Claims Court, which, as Bill Funk mentioned, has taken a much more extreme view of the takings clause than even Justice Scalia. (26) So, in the next few years, we're going to have a lot of cases that will address the issues that the Lucas decision didn't resolve, like the size of the property. When and if they reach the Supreme Court, those cases will mark the end of this transition era and will tell us just how big of a property rights revolution is underway.

As for Lucas, the most sagacious opinion in the case was one that the panelists have not mentioned yet, and that was Justice Souter's.(27) He claimed that the Court should not have granted certiorari, asking "What are we taking this case for?" In Souter's view, the case's fundamental assumption - that Lucas' land had no economic value after application of the regulation - was highly unlikely.(28) In fact, all the other opinions - Justice Kennedy's concurrence and the dissents of Justices Blackmun and Stevens(29) - agree that it was improbable that there was no economic...