Document Type

Working Paper

Publication Date

7-16-2016

SSRN Discipline

Legal Scholarship Network; Corporate Governance Network; Law & Society eJournals; Law & Society: Private Law eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Management Research Network

Abstract

In Lucas v South Carolina Coastal Council the United States Supreme Court established the premier categorical regulatory takings standard with certain limited exceptions The Lucas rule establishes that private property owners are entitled to compensation for a taking under the Fifth Amendment Takings Clause when a government regulation "denies all economically beneficial or productive use of land" Today Lucas remains the controlling law on categorical regulatory takings But in application how much does Lucas still matter My review of more than 1600 cases in state and federal court reveals only twentyseven cases in twentyfive years in which courts found a categorical regulatory taking under Lucas By percentage that works out to a Lucas claim success rate of just 16 percent This does not mean Lucas is unimportant however Rather the paucity of successful Lucas claims itself tells a significant story about the importance of pleading takings claims I contend that Lucas' most enduring value is not its contribution to the positive law but rather its effect on how litigants shape their cases A crucial aspect of the Lucas categorical regulatory takings analysis has been and will continue to be the problem of defining the denominator in the regulatory takings equation My research suggests that Lucas' holding incentivizes the private contractual agreements entered into by property owners to shrink the takings denominator and tilt the scales slightly in favor of the plaintiff The ability of a property owner to reduce the denominator remains the loadstar for a Lucas casewinning strategy This is important for not only theorists but also for practitioners to know "” those who litigate and conduct transactions in Lucas' shadow"ƒ

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