Lucas v. South Carolina Coastal Council, takings, and the search for the common good

American Business Law Journal

Volumn 33, Issue 2, 1995, Pages 153-177

  Beck Dudley, Caryn L ^a   Macdonald, James E ^b  

^a UTAH STATE UNIVERSITY   (United States)

^b WEBER STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0029524328     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1995.tb00890.x     Document Type: Article

References (174)

1. U.S. CONST. amend. V.
2. For just a few of the many law review articles written on the takings clause see Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735 (1985); Daniel C. Kramer, When Does a Regulation Become a Taking? The United States Supreme Court's Most Recent Pronouncements, 26 AM. BUS. L.J. 729 (1988); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 55 (1990); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issues is Still a Muddle, 57 S. CAL. L. REV. 531 (1984); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 35 (1964); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and 'Takings' Clause Jurisprudence, 60 S. CAL. L. REV. 3 (1986); William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
3. For just a few of the many law review articles written on the takings clause see Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735 (1985); Daniel C. Kramer, When Does a Regulation Become a Taking? The United States Supreme Court's Most Recent Pronouncements, 26 AM. BUS. L.J. 729 (1988); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 55 (1990); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issues is Still a Muddle, 57 S. CAL. L. REV. 531 (1984); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 35 (1964); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and 'Takings' Clause Jurisprudence, 60 S. CAL. L. REV. 3 (1986); William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
4. For just a few of the many law review articles written on the takings clause see Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735 (1985); Daniel C. Kramer, When Does a Regulation Become a Taking? The United States Supreme Court's Most Recent Pronouncements, 26 AM. BUS. L.J. 729 (1988); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 55 (1990); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issues is Still a Muddle, 57 S. CAL. L. REV. 531 (1984); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 35 (1964); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and 'Takings' Clause Jurisprudence, 60 S. CAL. L. REV. 3 (1986); William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
5. For just a few of the many law review articles written on the takings clause see Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735 (1985); Daniel C. Kramer, When Does a Regulation Become a Taking? The United States Supreme Court's Most Recent Pronouncements, 26 AM. BUS. L.J. 729 (1988); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 55 (1990); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issues is Still a Muddle, 57 S. CAL. L. REV. 531 (1984); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 35 (1964); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and 'Takings' Clause Jurisprudence, 60 S. CAL. L. REV. 3 (1986); William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
6. For just a few of the many law review articles written on the takings clause see Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735 (1985); Daniel C. Kramer, When Does a Regulation Become a Taking? The United States Supreme Court's Most Recent Pronouncements, 26 AM. BUS. L.J. 729 (1988); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 55 (1990); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issues is Still a Muddle, 57 S. CAL. L. REV. 531 (1984); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 35 (1964); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and 'Takings' Clause Jurisprudence, 60 S. CAL. L. REV. 3 (1986); William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
7. For just a few of the many law review articles written on the takings clause see Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735 (1985); Daniel C. Kramer, When Does a Regulation Become a Taking? The United States Supreme Court's Most Recent Pronouncements, 26 AM. BUS. L.J. 729 (1988); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 55 (1990); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issues is Still a Muddle, 57 S. CAL. L. REV. 531 (1984); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 35 (1964); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and 'Takings' Clause Jurisprudence, 60 S. CAL. L. REV. 3 (1986); William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
8. For just a few of the many law review articles written on the takings clause see Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735 (1985); Daniel C. Kramer, When Does a Regulation Become a Taking? The United States Supreme Court's Most Recent Pronouncements, 26 AM. BUS. L.J. 729 (1988); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 55 (1990); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issues is Still a Muddle, 57 S. CAL. L. REV. 531 (1984); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 35 (1964); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and 'Takings' Clause Jurisprudence, 60 S. CAL. L. REV. 3 (1986); William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
9. For just a few of the many law review articles written on the takings clause see Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735 (1985); Daniel C. Kramer, When Does a Regulation Become a Taking? The United States Supreme Court's Most Recent Pronouncements, 26 AM. BUS. L.J. 729 (1988); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II - Takings as Intentional Deprivations of Property Without Moral Justification, 78 CAL. L. REV. 55 (1990); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issues is Still a Muddle, 57 S. CAL. L. REV. 531 (1984); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 35 (1964); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and 'Takings' Clause Jurisprudence, 60 S. CAL. L. REV. 3 (1986); William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
10. Some notable exceptions to this are the works by RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter TAKINGS]; John J. Costonis, Presumptive and Per Se Takings: A Decisional Model for the Taking Issue, 58 N.Y.U. L. REV. 465 (1983); William A. Fishel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 5181 (1988) (reviewing the articles found in a Symposium issue, volume 88 of the Columbia Law Review, addressing the takings clause from a utilitarian perspective); William W. Fisher III, Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860, 39 EMORY L.J. 65 (1990) (tracing religious doctrines and the notion of property protection); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982) (using a rights/liberty analysis); Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967) (using a utilitarian approach); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714 (1988) (arguing for a justice approach).
11. Some notable exceptions to this are the works by RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter TAKINGS]; John J. Costonis, Presumptive and Per Se Takings: A Decisional Model for the Taking Issue, 58 N.Y.U. L. REV. 465 (1983); William A. Fishel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 5181 (1988) (reviewing the articles found in a Symposium issue, volume 88 of the Columbia Law Review, addressing the takings clause from a utilitarian perspective); William W. Fisher III, Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860, 39 EMORY L.J. 65 (1990) (tracing religious doctrines and the notion of property protection); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982) (using a rights/liberty analysis); Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967) (using a utilitarian approach); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714 (1988) (arguing for a justice approach).
12. Some notable exceptions to this are the works by RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter TAKINGS]; John J. Costonis, Presumptive and Per Se Takings: A Decisional Model for the Taking Issue, 58 N.Y.U. L. REV. 465 (1983); William A. Fishel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 5181 (1988) (reviewing the articles found in a Symposium issue, volume 88 of the Columbia Law Review, addressing the takings clause from a utilitarian perspective); William W. Fisher III, Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860, 39 EMORY L.J. 65 (1990) (tracing religious doctrines and the notion of property protection); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982) (using a rights/liberty analysis); Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967) (using a utilitarian approach); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714 (1988) (arguing for a justice approach).
13. Some notable exceptions to this are the works by RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter TAKINGS]; John J. Costonis, Presumptive and Per Se Takings: A Decisional Model for the Taking Issue, 58 N.Y.U. L. REV. 465 (1983); William A. Fishel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 5181 (1988) (reviewing the articles found in a Symposium issue, volume 88 of the Columbia Law Review, addressing the takings clause from a utilitarian perspective); William W. Fisher III, Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860, 39 EMORY L.J. 65 (1990) (tracing religious doctrines and the notion of property protection); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982) (using a rights/liberty analysis); Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967) (using a utilitarian approach); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714 (1988) (arguing for a justice approach).
14. Some notable exceptions to this are the works by RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter TAKINGS]; John J. Costonis, Presumptive and Per Se Takings: A Decisional Model for the Taking Issue, 58 N.Y.U. L. REV. 465 (1983); William A. Fishel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 5181 (1988) (reviewing the articles found in a Symposium issue, volume 88 of the Columbia Law Review, addressing the takings clause from a utilitarian perspective); William W. Fisher III, Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860, 39 EMORY L.J. 65 (1990) (tracing religious doctrines and the notion of property protection); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982) (using a rights/liberty analysis); Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967) (using a utilitarian approach); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714 (1988) (arguing for a justice approach).
15. Some notable exceptions to this are the works by RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter TAKINGS]; John J. Costonis, Presumptive and Per Se Takings: A Decisional Model for the Taking Issue, 58 N.Y.U. L. REV. 465 (1983); William A. Fishel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 5181 (1988) (reviewing the articles found in a Symposium issue, volume 88 of the Columbia Law Review, addressing the takings clause from a utilitarian perspective); William W. Fisher III, Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860, 39 EMORY L.J. 65 (1990) (tracing religious doctrines and the notion of property protection); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982) (using a rights/liberty analysis); Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967) (using a utilitarian approach); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714 (1988) (arguing for a justice approach).
16. Some notable exceptions to this are the works by RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter TAKINGS]; John J. Costonis, Presumptive and Per Se Takings: A Decisional Model for the Taking Issue, 58 N.Y.U. L. REV. 465 (1983); William A. Fishel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 5181 (1988) (reviewing the articles found in a Symposium issue, volume 88 of the Columbia Law Review, addressing the takings clause from a utilitarian perspective); William W. Fisher III, Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860, 39 EMORY L.J. 65 (1990) (tracing religious doctrines and the notion of property protection); John A. Humbach, A Unifying Theory for the Just-Compensation Cases: Takings, Regulation and Public Use, 34 RUTGERS L. REV. 243 (1982) (using a rights/liberty analysis); Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967) (using a utilitarian approach); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714 (1988) (arguing for a justice approach).
17. An interesting attempt has been made to provide a structural overview of the Supreme Court's decisionmaking process using a decisionmaking tree. See Natasha Zalkin, Shifting Sands and Shifting Doctrines: The Supreme Court's Changing Takings Doctrine and South Carolina's Coastal Zone Statute, 79 CAL. L. REV. 205, 236-37 (1991).
18. Larry Alexander, Takings of Property and Constitutional Serendipity, 41 U. MIAMI L. REV. 223 (1986).
19. EPSTEIN, TAKINGS, supra note 3.
20. At the outset it is useful to note that TAKINGS proceeds at two levels. On the first, it is a textual analysis of one provision of the Constitution, the eminent domain clause, which provides "nor shall private property be taken for public use, without just compensation." At the second level, the book is an effort to justify that principle of social organization by showing how the systematic application of the clause has very powerful functional roots: while conceptions of social utility are hard to state and to identify, the society which adheres to the demands of the eminent domain clause will find itself better able to obtain prosperity for all its members than one which deviates from this principle.
21. Richard A. Epstein, An Outline of Takings, 41 U. MIAMI L. REV. 3 (1986) [hereinafter Outline].
22. A broad spectrum of responses can be found in the Proceedings of the Conference on Takings of Property and the Constitution held at the University of San Diego, January 30-February 1, 1986, and published by the UNIVERSITY OF MIAMI LAW REVIEW. The following are citations to articles written by the participants: Alexander, supra note 5; Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21 (1986); Ellen Frankel Paul, A Reflection on Epstein and His Critics, 41 U. MIAMI L. REV. 235 (1986); Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986); Cass R. Sunstein, Two Faces of Liberalism, 41 U. MIAMI L. REV. 245 (1986).
23. A broad spectrum of responses can be found in the Proceedings of the Conference on Takings of Property and the Constitution held at the University of San Diego, January 30-February 1, 1986, and published by the UNIVERSITY OF MIAMI LAW REVIEW. The following are citations to articles written by the participants: Alexander, supra note 5; Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21 (1986); Ellen Frankel Paul, A Reflection on Epstein and His Critics, 41 U. MIAMI L. REV. 235 (1986); Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986); Cass R. Sunstein, Two Faces of Liberalism, 41 U. MIAMI L. REV. 245 (1986).
24. A broad spectrum of responses can be found in the Proceedings of the Conference on Takings of Property and the Constitution held at the University of San Diego, January 30-February 1, 1986, and published by the UNIVERSITY OF MIAMI LAW REVIEW. The following are citations to articles written by the participants: Alexander, supra note 5; Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21 (1986); Ellen Frankel Paul, A Reflection on Epstein and His Critics, 41 U. MIAMI L. REV. 235 (1986); Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986); Cass R. Sunstein, Two Faces of Liberalism, 41 U. MIAMI L. REV. 245 (1986).
25. A broad spectrum of responses can be found in the Proceedings of the Conference on Takings of Property and the Constitution held at the University of San Diego, January 30-February 1, 1986, and published by the UNIVERSITY OF MIAMI LAW REVIEW. The following are citations to articles written by the participants: Alexander, supra note 5; Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21 (1986); Ellen Frankel Paul, A Reflection on Epstein and His Critics, 41 U. MIAMI L. REV. 235 (1986); Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986); Cass R. Sunstein, Two Faces of Liberalism, 41 U. MIAMI L. REV. 245 (1986).
26. A broad spectrum of responses can be found in the Proceedings of the Conference on Takings of Property and the Constitution held at the University of San Diego, January 30-February 1, 1986, and published by the UNIVERSITY OF MIAMI LAW REVIEW. The following are citations to articles written by the participants: Alexander, supra note 5; Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21 (1986); Ellen Frankel Paul, A Reflection on Epstein and His Critics, 41 U. MIAMI L. REV. 235 (1986); Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986); Cass R. Sunstein, Two Faces of Liberalism, 41 U. MIAMI L. REV. 245 (1986).
27. A broad spectrum of responses can be found in the Proceedings of the Conference on Takings of Property and the Constitution held at the University of San Diego, January 30-February 1, 1986, and published by the UNIVERSITY OF MIAMI LAW REVIEW. The following are citations to articles written by the participants: Alexander, supra note 5; Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21 (1986); Ellen Frankel Paul, A Reflection on Epstein and His Critics, 41 U. MIAMI L. REV. 235 (1986); Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986); Cass R. Sunstein, Two Faces of Liberalism, 41 U. MIAMI L. REV. 245 (1986).
28. Alexander, supra note 5, at 223.
29. Richard A. Epstein, A Last Word on Eminent Domain, 41 U. MIAMI L. REV. 253, 275 (1986) [hereinafter Last Word]. This statement may not be entirely true. See supra notes 2-3 and accompanying text.
30. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
31. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
32. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
33. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
34. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
35. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
36. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
37. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
38. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
39. 112 S. Ct. 2886 (1992). This case reflects a somewhat novel application of the takings clause to environmental regulation, and demonstrates how difficult it can be to apply any coherent theory to an actual case. There are several law review articles that have already discussed the Lucas case. For a representative sample, see Richard A. Epstein, Ruminations on Lucas v. South Carolina Coastal Council: An Introduction to Amicus Curiae Brief, 25 LOY. L.A. L. REV. 1225 (1992) [hereinafter Amicus Brief]; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993) [hereinafter Tangled Web]; William W. Fisher III, The Trouble With Lucas, 45 STAN. L. REV. 1393 (1993); Richard J. Lazarus, Putting the Correct "Spin" On Lucas, 45 STAN. L. REV. 1411 (1993); Alfred P. Levitt, Taking on a New Direction: The Rehnquist-Scalia Approach to Regulatory Takings, 66 TEMP. L. REV. 197 (1993); Paula Murray, Private Takings of Endangered Species as Public Nuisance, UCLA J. ENVTL. L. & POL'Y 119 (1993); Andrew R. Mylott, Is There a Doctrine in the House?: The Nuisance Exception to the Takings Clause Has Been Mortally Wounded by Lucas, 1992 WIS. L. REV. 1299; Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); Amelia T.R. Starr, "Ruin Hath Taught Me Thus to Ruminate": Rejecting the Regulatory/Eminent Domain Dichotomy For Coastal Land, 1993 ANN. SURV. AM. L. 117; Note, Taking Back Takings: A Coasean Approach to Regulation, 106 HARV. L. REV. 914 (1993).
40. Lucas, 112 S. Ct. at 2900 n.15 (citing Speech Proposing Bill of Rights in 12 J. MADISON, THE PAPERS OF JOHN MADISON 201 (C. Hobson et al. eds., 1979) (June 8, 1789)).
41. There is, however, no shortage of attempts to deem the intent, without relying on any record. See Fisher, supra note 11, where he states, Justice Scalia [in Lucas] insisted that constitutional provisions should be construed in light of the "original intent" of the persons who drafted and ratified them. In his dissenting opinion in Lucas, Justice Blackmun points out that the drafters of the Takings Clause believed that it proscribed only formal expropriations of private property, and that its reach "did not extend to regulations of property, whatever the effect" of those regulations on the value of property. In his majority opinion, Justice Scalia agrees with this characterization of the clause's original meaning but proclaims it "entirely irrelevant." Id. at 1394 (citations omitted). See also Sax, supra note 2.
42. There is, however, no shortage of attempts to deem the intent, without relying on any record. See Fisher, supra note 11, where he states, Justice Scalia [in Lucas] insisted that constitutional provisions should be construed in light of the "original intent" of the persons who drafted and ratified them. In his dissenting opinion in Lucas, Justice Blackmun points out that the drafters of the Takings Clause believed that it proscribed only formal expropriations of private property, and that its reach "did not extend to regulations of property, whatever the effect" of those regulations on the value of property. In his majority opinion, Justice Scalia agrees with this characterization of the clause's original meaning but proclaims it "entirely irrelevant." Id. at 1394 (citations omitted). See also Sax, supra note 2.
43. See Bender, supra note 2, at 748-54; Treanor, supra note 2.
44. See Bender, supra note 2, at 748-54; Treanor, supra note 2.
45. Leslie Bender describes these ideologies as liberalism and capitalism, represented by John Locke, and republicanism, represented by the ideas of Aristotle. See Bender, supra note 2, at 754-58.
46. Blackstone wrote that private property could not be taken without compensation; whereas, Coke and Locke wrote that land could not be taken without due process. There was no mention of compensation. Both requirements found their way into American law. Bender, supra note 2, at 750-53.
47. 80 U.S. 166 (1871).
48. Id. at 177-78.
49. See Sax, supra note 2, at 37-46 for a thorough discussion of the two viewpoints.
50. JOHN E. NOWAK ET AL., CONSTITUTIONAL LAW 441 (1980).
51. Id.
52. 123 U.S. 623 (1887). In this case the state of Kansas had passed a statute prohibiting the sale of alcoholic beverages.
53. Id. at 668-69. For a discussion of the cases that were decided between Mugler and Mahon, see Bender, supra note 2, at 765-71.
54. 260 U.S. 393 (1922). Pennsylvania passed a statute prohibiting coal mining if it caused subsidence of any home.
55. See Rose, supra note 2 for a description of Mahon and its impact.
56. 260 U.S. at 414.
57. Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987); Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Agins v. City of Tiburon, 447 U.S. 255 (1980); Kaiser Aetna v. United States, 444 U.S. 164 (1979); Penn Central Transportation Co. v. New York, 438 U.S. 104 (1978); Berman v. Parker 348 U.S. 26 (1954).
58. For a discussion of the differences and similarities among the more important cases, see Kramer, supra note 2.
59. Two recent cases have dealt with this issue. In the first, Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the Nollans wanted to tear down an existing bungalow and replace it with a three bedroom home. When they applied for a permit the California Coastal Commission required that they provide a public easement across their beachfront property. The Supreme Court held that the condition was an unconstitutional taking. Id. at 841-42. In a more recent case, Dolan v. City of Tigard, 114 S. Ct. 2309 (1994), the U.S. Supreme Court also prohibited governmental conditions. In that case Dolan wanted to expand her existing plumbing supply business. The City Planning Commission granted her request on the condition that she dedicate a piece of land for a greenway and that she provide space for a pedestrian/bicycle path. Id. at 2315. The Court adopted a new "rough proportionality" test for these types of takings cases Id. at 2319-20. While these cases are similar to Lucas, they do not deal specifically with governmental regulation and are therefore beyond the scope of this article.
60. Lucas, 112 S. Ct. at 2893. Three stages have been identified in the evolution of the takings doctrine. (1) Unrestrained use ("anything goes" in the use of land); (2) Nuisance adjudication (courts, under the auspices of nuisance law, use case-by-case, ex post rulings to curtail the negative externalities associated with unrestrained land use); (3) Local regulation (state and local planners, empowered by state legislatures, displace nuisance law with more precise, detailed, and predictable ex ante land use regulations). Fisher, supra note 11, at 1406 (relying on Carol M. Rose, Property Rights, Regulatory Regimes and the New Takings Jurisprudence - An Evolutionary Approach, 57 TENN. L. REV. 577 (1990)).
61. Lucas, 112 S. Ct. at 2893. Three stages have been identified in the evolution of the takings doctrine. (1) Unrestrained use ("anything goes" in the use of land); (2) Nuisance adjudication (courts, under the auspices of nuisance law, use case-by-case, ex post rulings to curtail the negative externalities associated with unrestrained land use); (3) Local regulation (state and local planners, empowered by state legislatures, displace nuisance law with more precise, detailed, and predictable ex ante land use regulations). Fisher, supra note 11, at 1406 (relying on Carol M. Rose, Property Rights, Regulatory Regimes and the New Takings Jurisprudence - An Evolutionary Approach, 57 TENN. L. REV. 577 (1990)).
62. ARISTOTLE, POLITICS, bk. II, especially ch. 5. All references to Aristotle are taken from THE COMPLETE WORKS OF ARISTOTLE (Jonathan Barnes ed., Bollingen Series 1991).
63. ARISTOTLE, POLITICS, bk. II, especially ch. 5. All references to Aristotle are taken from THE COMPLETE WORKS OF ARISTOTLE (Jonathan Barnes ed., Bollingen Series 1991).
64. See JAMES TULLY, A DISCOURSE ON PROPERTY JOHN LOCKE AND HIS ADVERSARIES 64-65 (1980).
65. ARISTOTLE, supra note 31, at bk. II, ch. 5; ST. THOMAS AQUINAS, SUMMA THEOLOGICA, pt. II-II, q. 66, a. 2. All references to St. Thomas Aquinas are taken from ST. THOMAS AQUINAS, SUMMA THEOLOGICA (Fathers of the English Dominican Province trans. 1948).
66. ARISTOTLE, supra note 31, at bk. II, ch. 5; ST. THOMAS AQUINAS, SUMMA THEOLOGICA, pt. II-II, q. 66, a. 2. All references to St. Thomas Aquinas are taken from ST. THOMAS AQUINAS, SUMMA THEOLOGICA (Fathers of the English Dominican Province trans. 1948).
67. ARISTOTLE, supra note 31, at bk. II, ch. 5; ST. THOMAS AQUINAS, SUMMA THEOLOGICA, pt. II-II, q. 66, a. 2. All references to St. Thomas Aquinas are taken from ST. THOMAS AQUINAS, SUMMA THEOLOGICA (Fathers of the English Dominican Province trans. 1948).
68. See AQUINAS, supra note 33, at pt. II-II, q. 66, a. 7.
69. ARISTOTLE, supra note 31, at bk. II, chs. 1-6, especially ch. 5, 1263a-64b. Aristotle states, "[p]roperty should be in a certain sense common, but, as a general rule, private; for, when everyone has distinct interest, men will not complain of one another, and they will make more progress, because everyone will be attending to his own business." Aristotle, supra note 31, at 1263a, 25-29. See also, JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS, 171, 172 (1988).
70. ARISTOTLE, supra note 31, at bk. II, chs. 1-6, especially ch. 5, 1263a-64b. Aristotle states, "[p]roperty should be in a certain sense common, but, as a general rule, private; for, when everyone has distinct interest, men will not complain of one another, and they will make more progress, because everyone will be attending to his own business." Aristotle, supra note 31, at 1263a, 25-29. See also, JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS, 171, 172 (1988).
71. ARISTOTLE, supra note 31, at bk. II, chs. 1-6, especially ch. 5, 1263a-64b. Aristotle states, "[p]roperty should be in a certain sense common, but, as a general rule, private; for, when everyone has distinct interest, men will not complain of one another, and they will make more progress, because everyone will be attending to his own business." Aristotle, supra note 31, at 1263a, 25-29. See also, JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS, 171, 172 (1988).
72. AQUINAS, supra note 33, at pt. II-II, q. 66.
73. ARISTOTLE, supra note 31, at bk. II, chs. 1-6, especially ch. 5, 1263a-64b.
74. The use of the male pronoun is consistent with the original language of the author and will be used in that fashion.
75. AQUINAS, supra note 33, at pt. II-II, q. 66, a. 2.
76. Aquinas, supra note 33, at pt. II-II, q. 66, a. 2. (emphasis added).
77. See Catechism of the Catholic Church, paras. 2401-06 (citing several Papal Encyclicals, particularly Gaudium et spes 69,1; 71,4; Sollicitudo rei socialis 42; and Centesimus annus 40, 48).
78. See Catechism of the Catholic Church, paras. 2401-06 (citing several Papal Encyclicals, particularly Gaudium et spes 69,1; 71,4; Sollicitudo rei socialis 42; and Centesimus annus 40, 48).
79. See Catechism of the Catholic Church, paras. 2401-06 (citing several Papal Encyclicals, particularly Gaudium et spes 69,1; 71,4; Sollicitudo rei socialis 42; and Centesimus annus 40, 48).
80. See Catechism of the Catholic Church, paras. 2401-06 (citing several Papal Encyclicals, particularly Gaudium et spes 69,1; 71,4; Sollicitudo rei socialis 42; and Centesimus annus 40, 48).
81. See Catechism of the Catholic Church, paras. 2401-06 (citing several Papal Encyclicals, particularly Gaudium et spes 69,1; 71,4; Sollicitudo rei socialis 42; and Centesimus annus 40, 48).
82. Jus gentium refers to the law of nations, not the law between nations. The Romans needed to devise ways to govern diverse cultures they conquered. In looking at the diverse cultures, common elements of the laws of each culture were retained whereas peculiarities were disregarded. All cultures recognized some right to private property. AQUINAS, supra note 33, at pt. II-II, q. 57.
83. See AUSTIN FAGOTHEY, RIGHT AND REASON: ETHICS IN THEORY AND PRACTICE 403 (8th ed. Milton A. Gonsalves, rev. 1985).
84. AQUINAS, supra note 33, at pt. II-II, q. 66, a. 2.
85. AQUINAS, supra note 33, at pt. II-II, q. 66, a. 2. Aquinas then proceeds to discuss whether theft is a sin.
86. AQUINAS, supra note 33, at pt. II-II, q. 66, a. 7.
87. Sax, supra note 11, at 1452. Usufruct is described as "the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing." LA. CIV. CODE ANN. art. 533 (West 1980).
88. Sax, supra note 11, at 1452. Sax cites water law as an example of how a usufructuary model would work. "One does not own a river, but can acquire use rights in water taken from a river. A river itself, or at least a navigable river, is a resource that is held in trust for the public, but it is amenable to private uses compatible with the trust." Sax, supra note 11, at 1452, n.90.
89. Sax, supra note 11, at 1452. Sax cites water law as an example of how a usufructuary model would work. "One does not own a river, but can acquire use rights in water taken from a river. A river itself, or at least a navigable river, is a resource that is held in trust for the public, but it is amenable to private uses compatible with the trust." Sax, supra note 11, at 1452, n.90.
90. THOMAS HOBBES, LEVIATHAN 82 (Michael Oakeshott ed., 1955).
91. Id. at 109-13.
92. Id. at 144.
93. Id. at ch. 13.
94. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 95, 99 (Peter Laslett ed., 1963).
95. Id. at 309, 311, 374.
96. Id. at 328-29.
97. Id. at 398.
98. Id.
99. Epstein substitutes Locke's state of nature for "original position" where "each individual owns his own labor; no one owned the external things of the world until the first possessor acquired them." EPSTEIN, TAKINGS, supra note 3, at 11.
100. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 17 (Richard Cox ed., 1982).
101. Id.
102. TULLY, supra note 32, at 131.
103. This is based upon the idea that "God has authority to decide what man is for because He is the author of his being. Man has a duty to preserve man's being, which belongs to God as His workmanship, and is therefore His servant." TULLY, supra note 32, at 46. For a detailed description of this workmanship model, see TULLY, supra note 32, at 16-46.
104. This is based upon the idea that "God has authority to decide what man is for because He is the author of his being. Man has a duty to preserve man's being, which belongs to God as His workmanship, and is therefore His servant." TULLY, supra note 32, at 46. For a detailed description of this workmanship model, see TULLY, supra note 32, at 16-46.
105. TULLY, supra note 32, at 45.
106. LOCKE, supra note 59, at 17.
107. TULLY, supra note 32, at 61.
108. Other philosophers during the same time period were working on concepts of private property as it related to who owned the ocean. See TULLY, supra note 32, at 79.
109. "Nature has conferred upon all men in common dominion over all things, and consequently has given every man a power to use those things, but nature has not so conferred private dominion." TULLY, supra note 32, at 68 (citing 2.14.16)
110. TULLY, supra note 32, at 122.
111. TULLY, supra note 32, at 168.
112. LOCKE, supra note 59, at 20.
113. TULLY, supra note 32, at 175-76.
114. Epstein, Outline, supra note 7, at 7.
115. Epstein, Outline, supra note 7, at 8.
116. Epstein, Outline, supra note 7, at 8.
117. Epstein, Outline, supra note 7, at 8.
118. Epstein's selection of Locke as the philosopher of choice for the interpretation of the takings clause is historically questionable. Several reputable scholars, it has been noted, have argued that Thomas Hobbes had a greater influence on the framers of the Constitution than did Locke. See Note, Richard Epstein on the Foundations of Takings Jurisprudence, 99 HARV. L. REV. 791, 796 n.32 (1986) where the author cites F. COLEMAN, HOBBES AND AMERICA; EXPLORING THE CONSTITUTIONAL FOUNDATIONS (1977), G. MACE, LOCKE, HOBBES, AND THE FEDERALIST PAPERS (1979) and THE NONLOCKEAN ROOTS OF AMERICAN DEMOCRATIC THOUGHT (J. Chaudhuri ed., 1977). Each of these sources downplay the importance traditionally accorded Locke's influence. See also supra notes 12-16 and accompanying text.
119. Epstein's selection of Locke as the philosopher of choice for the interpretation of the takings clause is historically questionable. Several reputable scholars, it has been noted, have argued that Thomas Hobbes had a greater influence on the framers of the Constitution than did Locke. See Note, Richard Epstein on the Foundations of Takings Jurisprudence, 99 HARV. L. REV.
120. Epstein's selection of Locke as the philosopher of choice for the interpretation of the takings clause is historically questionable. Several reputable scholars, it has been noted, have argued that Thomas Hobbes had a greater influence on the framers of the Constitution than did Locke. See Note, Richard Epstein on the Foundations of Takings Jurisprudence, 99 HARV. L. REV. 791, 796 n.32 (1986) where the author cites F. COLEMAN, HOBBES AND AMERICA; EXPLORING THE CONSTITUTIONAL FOUNDATIONS (1977), G. MACE, LOCKE, HOBBES, AND THE FEDERALIST PAPERS (1979) and THE NONLOCKEAN ROOTS OF AMERICAN DEMOCRATIC THOUGHT (J. Chaudhuri ed., 1977). Each of these sources downplay the importance traditionally accorded Locke's influence. See also supra notes 12-16 and accompanying text.
121. Epstein's selection of Locke as the philosopher of choice for the interpretation of the takings clause is historically questionable. Several reputable scholars, it has been noted, have argued that Thomas Hobbes had a greater influence on the framers of the Constitution than did Locke. See Note, Richard Epstein on the Foundations of Takings Jurisprudence, 99 HARV. L. REV. 791, 796 n.32 (1986) where the author cites F. COLEMAN, HOBBES AND AMERICA; EXPLORING THE CONSTITUTIONAL FOUNDATIONS (1977), G. MACE, LOCKE, HOBBES, AND THE FEDERALIST PAPERS (1979) and THE NONLOCKEAN ROOTS OF AMERICAN DEMOCRATIC THOUGHT (J. Chaudhuri ed., 1977). Each of these sources downplay the importance traditionally accorded Locke's influence. See also supra notes 12-16 and accompanying text.
122. The theory is most thoroughly set out in EPSTEIN, TAKINGS, supra note 3. Other helpful articles include: Richard A. Epstein, Takings: Descent and Resurrection, 1987 SUP. CT. REV. 1 [hereinafter Descent]; Epstein, Outline, supra note 7; Epstein, Last Word, supra note 10;
123. The theory is most thoroughly set out in EPSTEIN, TAKINGS, supra note 3. Other helpful articles include: Richard A. Epstein, Takings: Descent and Resurrection, 1987 SUP. CT. REV. 1 [hereinafter Descent]; Epstein, Outline, supra note 7; Epstein, Last Word, supra note 10;
124. The theory is most thoroughly set out in EPSTEIN, TAKINGS, supra note 3. Other helpful articles include: Richard A. Epstein, Takings: Descent and Resurrection, 1987 SUP. CT. REV. 1 [hereinafter Descent]; Epstein, Outline, supra note 7; Epstein, Last Word, supra note 10;
125. The theory is most thoroughly set out in EPSTEIN, TAKINGS, supra note 3. Other helpful articles include: Richard A. Epstein, Takings: Descent and Resurrection, 1987 SUP. CT. REV. 1 [hereinafter Descent]; Epstein, Outline, supra note 7; Epstein, Last Word, supra note 10;
126. Richard A. Epstein, The Uncertain Quest for Welfare Rights, 1985 B.Y.U. L. REV. 201 (1985).
127. "'Normal science' means research firmly based upon one or more past scientific achievements, achievements that some particular scientific community acknowledges for a time as supplying the foundation for its further practice." THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 10 (1970).
128. Epstein, Last Word, supra note 10, at 253.
129. EPSTEIN, TAKINGS, supra note 3, at 95.
130. Epstein, Outline, supra note 7, at 8. Epstein states, "only an unthinking formalist could insist upon any rigid and principled line between total and partial takings, or try to identify some configuration of sticks within the bundle that fall within the core while others do not." Epstein, Outline, supra note 7, at 8.
131. Epstein, Outline, supra note 7, at 8. Epstein states, "only an unthinking formalist could insist upon any rigid and principled line between total and partial takings, or try to identify some configuration of sticks within the bundle that fall within the core while others do not." Epstein, Outline, supra note 7, at 8.
132. Epstein, Outline, supra note 7, at 11. This is referred to as "implicit in-kind compensation." The common pool test, the disproportionate impact test, and the motive test are described in detail and explain how compensation is calculated. EPSTEIN, TAKINGS, supra note 3, at 195-216.
133. Epstein, Outline, supra note 7, at 11. This is referred to as "implicit in-kind compensation." The common pool test, the disproportionate impact test, and the motive test are described in detail and explain how compensation is calculated. EPSTEIN, TAKINGS, supra note 3, at 195-216.
134. Epstein specifies self-defense, disarming a thief, prohibiting pollution, controlling force, and fraud. He states, "[b]uilding an ordinary home does not become a nuisance against many neighbors when it is not a nuisance against any of them individually. The invocation of the police power to justify most varieties of modern zoning laws therefore fails because the end of government action is impermissible." Epstein, Outline, supra note 7, at 11.
135. Although it is impossible to see through the natural rights talk in TAKINGS to an underlying utilitarianism, Epstein later appears ready to shed all allegiance to any natural rights theory in favor of utilitarianism. See EPSTEIN, TAKINGS, supra note 3, at 331-50 and Epstein, Last Word, supra note 10, at 256-59.
136. Although it is impossible to see through the natural rights talk in TAKINGS to an underlying utilitarianism, Epstein later appears ready to shed all allegiance to any natural rights theory in favor of utilitarianism. See EPSTEIN, TAKINGS, supra note 3, at 331-50 and Epstein, Last Word, supra note 10, at 256-59.
137. EPSTEIN, TAKINGS, supra note 3, at 281.
138. EPSTEIN, TAKINGS, supra note 3, at 295-303.
139. EPSTEIN, TAKINGS, supra note 3, at 280.
140. EPSTEIN, TAKINGS, supra note 3, at 314-24.
141. EPSTEIN, TAKINGS, supra note 3, at 20. See also Note, supra note 76, at 795 for a discussion of Epstein's "moderate textualist" theory of constitutional interpretation.
142. See Note, supra note 76, at 793-97 for a discussion of the methods by which scholars argue that the Constitution should be interpreted.
143. Josef Pieper might almost seem to have Epstein exactly in mind when he once considered the "individual's" blindness to any standard of justice other than commutative fairness. He wrote, the individualist's criticism would be that there are in reality only individuals, and that, when an individual confronts the social totality, one individual confronts many individuals. For him the social whole is not a reality of a special order. Therefore, he admits of only one single type of justice -commutative justice - because individuals always have to do with other individuals. Every phase of man's communal life, in the family as well as in the state, is a compromise between the interests of individuals with equal rights. Josef Pieper, THE FOUR CARDINAL VIRTUES 73-74 (1966).
144. 112 S. Ct. 2886 (1992).
145. S.C. CODE ANN. § 48-39-10. (Law Co-op. Supp. 1990).
146. 16 U.S.C. §§ 1451-1464 (1994).
147. For a summary of the statutory background of the Beachfront Management Act, see Zalkin, supra note 4, at 216-21.
148. Construction was prohibited from a line drawn 20 feet landward of, and parallel to, the baseline which was the landward most point of erosion over the past forty years. Lucas, 112 S. Ct. at 2890.
149. The Common Pleas Court of Charleston County, Larry R. Patterson, Special J., awarded landowner damages and appeal was taken.
150. 304 S.C. 376, 404 S.E.2d 895 (1991).
151. 112 S. Ct. 436 (1991) (cert. granted). There was a procedural question about whether the case was ripe. Between the time Lucas filed his initial lawsuit and the time the U.S. Supreme Court heard the case, the Act was amended to allow affected property owners to request special permits from the Coastal Council. Lucas had not requested such a permit. The Court held that there had been a taking between 1988 and 1990, and therefore, the case was ripe for review. Lucas, 112 S. Ct. at 2891. Justice Souter voted to dismiss the writ on these grounds. Id. at 2926 (Souter, J., statement).
152. Id. at 2893.
153. Id.
154. The Court essentially admits that this is a muddled area of the law. "In 70-odd years of succeeding 'regulatory takings' jurisprudence, we have generally eschewed any 'set formula' for determining how far is too far, preferring to 'engage in . . . essentially ad hoc, factual inquiries." Id. (citations omitted).
155. Prior cases held that regulation of "harmful or noxious use" did not require compensation. See Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
156. The South Carolina Supreme Court found that the Beachfront Act was enacted under the police powers and was necessary to protect the public interest by preserving the coastal shoreline. See Lucas, 112 S. Ct. at 2890.
157. Richard Epstein heavily criticized this distinction between harmful and beneficial regulation by arguing that "without qualifications and by ceaseless extension, the harm exception swallows up virtually all exercises of individual liberty. So long as any person takes offense at what I do, then there is some external harm that can be said to justify the State restriction on my behavior." Epstein, Amicus Brief, supra note 11 at 1127. Epstein filed an amicus curiae brief in the case on behalf of the Institute for Justice. Epstein, Amicus Brief, supra, note 11, at 1233-52.
158. Richard Epstein heavily criticized this distinction between harmful and beneficial regulation by arguing that "without qualifications and by ceaseless extension, the harm exception swallows up virtually all exercises of individual liberty. So long as any person takes offense at what I do, then there is some external harm that can be said to justify the State restriction on my behavior." Epstein, Amicus Brief, supra note 11 at 1127. Epstein filed an amicus curiae brief in the case on behalf of the Institute for Justice. Epstein, Amicus Brief, supra, note 11, at 1233-52.
159. Lucas, 112 S. Ct. at 2898-99.
160. Id. at 2899.
161. The test is whether "a law or decree . . . does no more than duplicate the result that could have been achieved in the courts - by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." Id. at 2900.
162. Applying the expectation test under the facts of the case would have been interesting since the property in question had been part of the beach or under water for approximately half of the past 40 years. Id. at 2905 (Blackmun, J., dissenting). Justice Stevens argues that, arresting the development of the common law is not only a departure from our prior decision; it is also profoundly unwise. The human condition is one of constant learning and evolution - both moral and practical. Legislatures implement that new learning; in doing so they must often revise the definition of property and the rights of property owners [referring to slavery]. Id. at 2921 (Stevens, J., dissenting).
163. Lucas, 112 S. Ct. at 2901.
164. Justice Stevens finds the no beneficial use test "wholly arbitrary" in that an owner who has five percent use of the land is entitled to no recovery but the owner with no use is entitled to the whole amount. Id. at 2919 (Stevens, J., dissenting). Scalia responds by arguing that "takings law is full of these 'all-or-nothing' situations." Id. at 2895 n.8. This "all or nothing" approach has been criticized by almost all commentators. For an example, see Fisher, supra note 11, at 1402-05.
165. 112 S. Ct. at 2901.
166. Id. at 2921 (Stevens, J., dissenting).
167. Epstein, Tangled Web, supra note 11, at 1369.
168. Lucas, 112 S. Ct. at 2895 n.8.
169. Lochner v. New York, 198 U.S. 45, 75 (1905). Herbert Spencer (1820-1903) was a nineteenth century English exponent of "social Darwinism" who, in his day, was extraordinarily influential - unduly influencing Justice Field in particular, at least in the view of Justice Holmes. Justice Holmes objected to the striking down, on what seemed to him purely ideological grounds, of legislation regulating hours of work, child labor, and factory conditions. Field's position had earlier been set forth forcefully in the famous "Slaughterhouse Cases," 83 U.S. 36 (1872).
170. Epstein argues that the common good always lies in protecting an individual's private rights. Epstein, Amicus Brief, supra note 11, at 1250.
171. It certainly appears that the coastal area did need to be protected. When structures are allowed to be built on the coastline, the natural sand dunes are destroyed. Sand dunes "stabilized with grasses, provide an even greater flexibility than dikes, accepting the waves but reducing their velocity and absorbing muted forces. In contrast concrete walls break the full force of the waves and finally succumb to the undercutting of the insidious sea." Zalkin, supra note 4, at 213 n.24. Once the natural barrier is gone, the beach no longer acts to protect those living inland from storm damage. Further, during Hurricane Hugo, beachfront buildings were "driven, like battering rams, into adjacent inland houses. " Zalkin, supra note 4, at 213. Barriers on the beach also exacerbate erosion by blocking the replenishment of sand and increase storm damage by "making [the bay] more shallow and reducing its storm-water capacity. " Zalkin, supra note 4, at 214.
172. It certainly appears that the coastal area did need to be protected. When structures are allowed to be built on the coastline, the natural sand dunes are destroyed. Sand dunes "stabilized with grasses, provide an even greater flexibility than dikes, accepting the waves but reducing their velocity and absorbing muted forces. In contrast concrete walls break the full force of the waves and finally succumb to the undercutting of the insidious sea." Zalkin, supra note 4, at 213 n.24. Once the natural barrier is gone, the beach no longer acts to protect those living inland from storm damage. Further, during Hurricane Hugo, beachfront buildings were "driven, like battering rams, into adjacent inland houses. " Zalkin, supra note 4, at 213. Barriers on the beach also exacerbate erosion by blocking the replenishment of sand and increase storm damage by "making [the bay] more shallow and reducing its storm-water capacity. " Zalkin, supra note 4, at 214.
173. It certainly appears that the coastal area did need to be protected. When structures are allowed to be built on the coastline, the natural sand dunes are destroyed. Sand dunes "stabilized with grasses, provide an even greater flexibility than dikes, accepting the waves but reducing their velocity and absorbing muted forces. In contrast concrete walls break the full force of the waves and finally succumb to the undercutting of the insidious sea." Zalkin, supra note 4, at 213 n.24. Once the natural barrier is gone, the beach no longer acts to protect those living inland from storm damage. Further, during Hurricane Hugo, beachfront buildings were "driven, like battering rams, into adjacent inland houses. " Zalkin, supra note 4, at 213. Barriers on the beach also exacerbate erosion by blocking the replenishment of sand and increase storm damage by "making [the bay] more shallow and reducing its storm-water capacity. " Zalkin, supra note 4, at 214.
174. There are currently three bills before Congress requiring landowner compensation for economic losses stemming from environmental regulation. H.R. 490, 104th Cong., 1st Sess. (1995) (amending the Endangered Species Act), H.R. 961, 104th Cong., 1st Sess. (1995), and its companion bill in the Senate, S. 352, 104th Cong., 1st Sess. (1995) (amending the Federal Water Pollution Control Act). These bills should be judged by the standards of prudent public policy rather than strict implications of sound moral philosophy or a strained interpretation of the takings clause. The intuitive argument in favor of these bills is that they would prevent the distributively unjust consequence of heaping social costs on the backs of individual private landowners. A more adequate standard would be to use a balancing test, weighing harm done to individual private property interests (and also to the very institution of private property itself) against environmental benefit for the common good. Further, "equal protection" type questions should also be posed, like, is the regulatory end "legitimate" and is there an alternative means, less burdensome to private property interests, by which it may be realized. This sort of analysis cuts to the real issues. The talk of natural property rights and original meaning of the takings clause seem entirely misplaced and misguided.