The Lucas majority opinion raises difficult doctrinal issues including (1) whether courts ought to use a special takings test when a regulation eliminates all economically viable use of a piece property, and (2) the scope of the potential government defense that “no property” has been taken. This Article further explores these issues by examining shoreline change, harm/benefit distinction, and the public nuisance doctrine. Additionally, this Article argues that the specific facts of Lucas suggest that Mr. Lucas may not have owned the property in question at the time he filed the case.
Josh Eagle, Who Owned the Lucas Lots; What No Property Looks Like on the Beach, 53 Real Prop. Tr. & Est. L.J. 89, 100 (2018).