| Abstrakt: |
The Supreme Court appears lo be on a mission to enhance the scope of liability under the Takings Clause, the result of which could be the chilling of federal state, and local regulation. However, the Court has acknowledged that there is no takings liability when, under "background principles, " the property owner lacked the very right she is claiming the government has taken via regulation. The rationale for, and hence proper scope of the background principles exception to takings liability is opaque in the case law. This Article offers three possible rationales for the background principles exception that could, guide courts and help them to make more tenable decisions: an originalist rationale, a cultural consensus rationale, and an actual notice rationale. The arguments for and against these rationales are explored using contemporary property rights debates involving public access to beaches, evictions of tenants, and preservation of wildlife habitat on private land. The courts cannot be expected to clearly and consistently demarcate the public/private divide in properly law in an unimpeachable rigorous manner, but they can and should do better. [ABSTRACT FROM AUTHOR] |
