As Professor M. Carol Rose so famously wrote years ago, the law of property is about “crystals and mud.”1 In Professor Lee Anne Fennell’s view, there is perhaps no muddier area than the law of takings, and made even more so by Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021).
In this 2021 case, the U.S. Supreme Court ruled that a state regulation that gave union organizers access to agricultural worksites for up to three hours per day for 120 days per year, effected a per se taking by physical invasion. Just as we thought we had understood the broad types of takings, according to Professor Fennell, the Court devised “a new per se takings contraption…throwing physical impositions on owners into it wholesale, along with bewildering means of possible extrication.” (P. 3.)
Prof. Fennell states that “implicit takings,” those that are not the result of eminent domain proceedings, “has now effectively become an escape room—a gratuitously convoluted analytic environment, filled with many traps and puzzles.” (Pp. 3-4) This scheme, in her view, is a device for mischief—disfavored impositions on owners, wealth-disturbing impacts, can be checked, while wealth-enhancing measures, such as zoning may be allowed. But it does this only by making categories that are murky.
Prof. Fennell’s recounting of the road leading to Cedar Point reveals a twisted path, since that case doesn’t seem to fit neatly into the deprivation of all value framework of Lucas, the permanent physical occupation of Loretto, or the Penn Central balancing scheme.
Using the analogy of a board game, she describes the escape room as consisting of two doors: one involving claims regarding physical access, the other involving use limitations. Thanks to the mud tracked in by Cedar Point, even as we enter one room, we still do not know for sure what rules will apply—whether there is a per se taking or something else. This complication arises because of the great variety of claimants who might be in that room—from labor organizers to seeing eye dogs, who, although not property owners, may present worthy claims to access.
Prof. Fennell notes that the Court has expressly articulated exceptions to takings theory, but they are not always clear cut. First, there is the open door, i.e., where the landowner has invited the public in, but for what purpose? To shop or to distribute leaflets? Are there tenants with rights and guests? Is there a need to offer medical treatment to occupiers? Fennell wonders whether required open doors (for safety on construction sites and against discrimination) might also be covered by analogy.
Then there are the isolated physical intrusions that do not rise to the level of a taking. Finally, there are the background principles, but do these include labor laws? Anti-discrimination laws? Health and safety regulations? Do they vary by state? If trying to discern whether a government act triggers per se jurisprudence or the Penn Central balancing was not hard enough, once we move to exactions, the law becomes even more muddled.
Before Cedar Point, governments did not need to bargain for every entry necessary to carry out a regulatory program. Cedar Point suggests that inspections can easily pass Nollan and Dolan, then asserts in the same breath that the union access requirement could never pass muster because it does not involve a government benefit that can be “h[e]ld hostage.” If governments must now resort to bargains with landowners in order to govern, the societal costs of living with laws rises significantly.
The Cedar Point Court seemed to assign absolute priority to the right to exclude and imply that the only opening for Penn Central is in the initial characterization of the government action as a physical invasion or use limit, which in itself is not a simple proposition. On this score, it is hard to distinguish Pruneyard from Cedar Point.
Prof. Fennell sees physical intrusion as less relevant, since all regulations have physical manifestations to some degree, even if entry happens only to determine whether the law is being followed. In Prof. Fennell’s view, Cedar Point was the next step in the progression of giving heightened scrutiny to regulations impacting property rights—but not all such regulations, only selective ones. But what is the purpose of this new device?
Fennell believes the purpose of this new scrutiny is toward the preservation of the wealth structure in society. This means that certain uses and requirements that are necessary for larger society ends may need to fall in favor of preserving a landowner’s domain.
She develops a new taxonomy to help guide students (not just law students but students of the subject). In this ordering, some acts are entitled to no takings scrutiny (government acts that are not legitimate or that merely instantiates background principles); some should be subject to low scrutiny (for use restrictions that do not fall into Cedar Point’s per se mold); exactions should be given a heightened level of scrutiny, thereby removing some land use restrictions from bargain-making altogether if the uses in question are too “basic and familiar” to require anything in exchange—they will just be takings. Alleged per se takings should be subject to “infinitely high scrutiny.”
The last part of the paper focuses on the nagging question of what compensation is owed—the value of the space occupied by the government or the value of the whole property if we find a per se taking.
Professor Fennell admits that even her very inventive taxonomy may not be capable of separating crystals in the mud. While property gives autonomy and security and encourages investment, we should keep in our minds the resonating words of Morris Cohen, in Property and Sovereignty,2 that “dominion over things is also imperium over our fellow human beings.” The Cedar Point Court apparently did not see the agricultural workers laboring in the background.
- Carol M. Rose, Crystals and Mud in Property Law, 40 Stan. L. Rev. 577 (1988).
- 13 Cornell L. Rev. 8 (1927).
