When one lawyer writes that another is “my friend and colleague,” watch out: what follows may not be exactly friendly or collegial. For legal academics, the rule is even more pronounced when the friend-and-colleague’s name shows up in the title of an article.
In that vein, we bring you the latest chapter in the ongoing debate about “background principles” in regulatory takings analysis. In Background Principles, Takings, and Libertarian Property: A Response to Professor Huffman (posted on SSRN here), lawprofs Michael C. Blumm and J.B. Ruhl respond to Professor James Huffman’s critique of their work.
A short refresher. The “background principles” issue was spawned by Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 (1995), the case in which the Court held that a regulation takes property when it deprives a property owner of “economically beneficial or productive use of land,” even if the government’s reasons for enacting the legislation are valid. The Court also noted, however, that if the restrictive regulations are sourced in a state’s “background principles” of nuisance law, then the application of the regulation might not require compensation. Since that time, the issue of how much freedom state courts have to define (and redefine) exactly what those “background principles” are has been hotly debated. The U.S. Supreme Court is now considering a case on this very issue, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).
Professors Blumm and Ruhl write:
One of the surprising results of the Supreme Court‘s 1992 decision in Lucas v. South Carolina Coastal Commission was that the categorical takings rule the Court adopted concerning complete economic wipeouts caused by government regulation turned out to be far less consequential than the exception the Court established for “background principles” of property and nuisance law providing the government with a defense against takings claims. Over the last two decades, numerous courts have employed the background principles defense to uphold government regulations accused of working unconstitutional losses of property rights. The fact that the author of the Lucas opinion, Justice Antonin Scalia, may not have intended this result is perhaps a leading example of the law of unintended consequences.
The proliferation of background principles capable of defeating takings claims has disturbed libertarian property advocates, who call for increased reliance on the Constitution‘s takings clause to restrain regulatory controls. One of the leading advocates of the libertarian perspective on property is our friend and colleague, Jim Huffman. Huffman has taken both of us to task for writing on the subject of background principles, although his criticisms of our work varies over a couple of articles.
(emphasis added) (footnotes omitted).
Having laid the foundation, the other shoe drops. Professor Huffman’s criticism is “misguided,” his perspective is “ill-suited,” and his “libertarian notion of property” is filled with “faults.” And it gets better: his “conception of history and the common law” is “deeply flawed and incomplete,” and his position “cannot withstand scrutiny under the factual record.” The authors conclude: “Part VI examines Huffman‘s peculiar conception of the ‘rule of law,’ a curious erection of stasis that attempts to suggest that some legal changes (but not others) violate the takings clause.”
Ouch.
And that’s only the Introduction. The rest of the article is more of the same. The authors argue that the common law of nuisance has evolved to make environmental regulation the norm, and a limitation of a property owner’s bundle of rights that is inherent in her title.
We’re not exactly neutral on the issue. We filed an amicus brief in Stop the Beach Renourishment, arguing:
This case concerns whether the “background principles” exception to per se takings in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), permits state courts to construe local property law in a manner that threatens to virtually swallow up all regulatory takings. Indeed, state courts have been actively encouraged to leverage their power to define background principles to avoid takings.
Brief at 1-2 (citing James L. Huffman, Background Principles and the Rule of Law: Fifteen Years After Lucas, 35 Ecology L.Q. 1, 9 (2008)). At least we are in good company. In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), Justice Thurgood Marshall wrote:
Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core” common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.
PruneYard, 447 U.S. at 93-94 (Marshall, J., concurring).