Document Type
Article
Abstract
The exception to the rule the United States Supreme Court established in Lucas v. South Carolina Coastal Council states that a regulation that deprives a landowner of all economically viable use of its land is a taking per se unless “the proscribed use interests were not part of [the owner’s] title to begin with.” This article, a review of two other articles, makes three grammatical arguments to demonstrate that the Court’s exception is actually an essential ingredient of the main rule, and a partially contradictory one at that.
First, the so-called exception is not an exception because it assumes an owner can be deprived of something it never had. Second, a categorical rule from which a large proportion of cases is excluded is, by definition, not categorical. Finally, Lucas demands that a court answer two questions, but the “logically antecedent inquiry” that the Court describes cannot be undertaken beforehand and must be addressed concurrently. Once we put these three linguistic failings together, it becomes evident that the rule of Lucas is self-contradictory.
Publication Date
2-17-2021
Recommended Citation
Stein, Gregory M., "Swallowing its Own Tail: The Circular Grammar of Background Principles Under Lucas" (2021). Scholarly Works. 80.
https://ir.law.utk.edu/utklaw_facpubs/80