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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.


Published in Real Property, Trust and Estate Journal, Volume 53, Number 1, 2018 ©2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or diseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.