The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For nearly a decade, I have been teaching property law. My least favorite topic to teach is Takings law. The doctrine is a mess. Most of property law is pretty clear and easy-to-teach. But the Supreme Court has made a hash of the Takings Clause. As a property professor, I dread whenever the Supreme Court grants cert on a new takings case. Regardless of how the Court rules, the new doctrine will inevitably complicate the doctrine. And I will have to clean up the mess for my students. Cedar Point Nursery v. Hassid will be no exception.
I agree with co-blogger Ilya Somin. The property owners will probably win, though the specific rationale is unclear. Probably some sort of balancing test. And, in turn, property casebooks will have to make sense of this case. And, casebooks will probably add this decision to the early chapters on the right to exclude–alongside State v. Shack and Jacques v. Steenberg Homes. Of course, 1Ls will have no basis to understand the Fifth Amendment at that point in the semester. A mess.
There were a few exchanges during argument that actually involved property doctrine. There were extensive discussions about whether the asserted property interest was an easement under state law, or something else.
Justice Kagan posed these questions to Josh Thompson, the lawyer for PLF:
JUSTICE KAGAN: Mr. Thompson, if I could go back first to your answers to Justice Thomas. Let –let –let's say that I don't think that this would count as an easement under California law for a variety of reasons that Justice Thomas gave and Justice Alito gave. Let's just assume that to be true. You do keep on talking about a discrete interest in property. So I guess my question is, what discrete interest are you talking about if not an easement as defined by California law?
MR. THOMPSON: Justice Kagan, we're talking about the denial of the right to exclude third parties from our property for 120 days a year –
JUSTICE KAGAN: Yeah, I mean, I know what the thing says, but I don't think, like, the denial of a right to exclude counts as a discrete interest in property. I mean, the right to exclude is one of the sticks in the bundle that a property owner has, but usually, when people talk about discrete interests in property, it's like a legal form. It's an easement. It's a fee simple. It's something like that.
There are generally two type of easements: easement in gross and easement appurtenant.
Josh Thompson mentioned the former:
It's certainly true that the Access Regulation grants the union the right to come on and use our property for a discrete purpose, and that, as Judge Ikuta noted, has the hallmarks of an easement in gross under California law that --
And California SG Mike Mongan mentioned the latter:
MR. MONGAN: Well, Your Honor, I think that this is not a classical easement. As you noted, it is not appurtenant to any particular parcel of land. It is a regulatory scheme that applies to a particular type of business conducted on the land, and the access is not to a particular pathway or parcel, it's to the employees, where they are.
I hope the Court puts together a coherent decision.