102 Iowa L. Rev. 1847 (2017)

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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?

In reviewing more than 1,700 cases in state and federal courts, we identified that Lucas claims were successful in just 1.6% of the cases. This does not mean Lucas is unimportant, however. The small Lucas claim success rate suggests the importance of being strategic in pleading takings claims. The problem of defining the denominator in the regulatory takings equation is essential to understand for litigants pursuing the Lucas categorical regulatory takings analysis. Based upon our research, we argue that Lucas’s 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 case-winning strategy.

This is important for not only theorists but also for practitioners to know—those who litigate and conduct transactions in Lucas’s shadow.