Editors' Summary: In Lucas v. South Carolina Coastal Council, the U.S. Supreme Court held that regulations that deprive a landowner of economically beneficial use of land are compensable under the Fifth Amendment unless the regulation in question either prevents a nuisance or is part of a state's "back-ground principles" of property law. While nuisance law is fairly well understood, the second exception to the rule of compensation is not. This Article examines the law of custom and the public trust doctrine and describes the extent to which they have been applied in the common law, both in England and in the United States. The author notes that should public trust and customary law become, as some courts have suggested, background principles of state property law, the Lucas "categorical rule" of compensation could be significantly limited in scope, leaving affected landowners with no Fifth Amendment recourse.
Kudo Professor of Law, William S. Richardson School of Law, the University of Hawaii at Manoa; A. B., DePauw University, J. D., University of Michigan, L.L.M., Nottingham University. Thanks to Emily Henderson, barrister and Ph.D. candidate in law, Gonville and Caius College, University of Cambridge, Lane Hornfeck and Lani Kidani, graduates of the Richardson School of Law, and Jean Campbell, Comments Editor of the University of Hawaii Law Review, for their research assistance in preparing this Article, and to the Pacific Legal Foundation and the Cades Foundation for their research support. Invaluable commentary and guidance on the British aspects of the law of custom were provided by Professor J.H. Baker, Fellow of St. Catherine's College, Charles Harpum, Fellow of Downing College, Dr. Mark Bailey, Domestic Bursar, Corpus Christi College, and Dr. Gilbert Verbit, Life Member, Clare Hall, all of the University of Cambridge, Prof. DeLloyd Guth, Faculty of Law, University of Manitoba, and Christopher Coombe of Linklaters & Alliance. Thanks to Professor Malcolm Grant and the Department of Land Economy, Cambridge, for the time and space to pursue research on the topic of customary law while a visiting fellow at Clare Hall, University of Cambridge in the spring and summer of 1999. An earlier version of this Article was presented as a paper at the ALI-ABA Inverse Condemnation Conference in Boston on October 2, 1999. Many thanks to ALI-ABA for consenting to the publication of this longer and revised version here.
