Cedar Point Nursery v. Hassid Quietly Rewrote Four Decades of Takings Clause Doctrine

For the first time, the 6-3 conservative majority powered a hard-right change in the law.

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Penn Central Transportation Co. v. New York City (1978) is the Supreme Court's seminal Takings Clause case. Penn Central identified three factors to determine whether a land use regulation was a taking. First, the court assesses the "economic impact of the regulation." Second, the courts measure the "extent to which the regulation has interfered with distinct investment-backed expectations." In other words, has the government regulated a specific land use that the property owner has invested money in?  Third, the court analyzes the "character of the governmental action."

Loretto v. Teleprompter Manhattan CATV Corp. (1982) followed Penn Central. In this case, New York required landlords to install cable television hookups on their buildings. Loretto would turn entirely on the third Penn Central factor. The Court identified two different "characters" of land use regulations: (1) temporary physical invasions and (2) permanent physical occupations. When the government temporarily invades a property, the Court will consider all three Penn Central factors. These temporary physical invasions are "subject to a balancing process." The Court observed that a "taking" is less likely to be found "when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." However, if a land use regulation causes a permanent physical occupation, a "taking may more readily be found." With this second category, it was irrelevant "whether the action achieves an important public benefit or has only minimal economic impact on the owner." Rather, when "[t]he physical intrusion reaches the extreme form of a permanent physical occupation," there is a taking. And, there is no need for the Courts to balance the other two Penn Central factors. This sort of land use regulation is known as a categorical, or per se regulatory taking. And a categorical regulatory taking requires a permanent physical occupation.

This summary is taken from my in-progress book, An Introduction to Property Law: The Cases Everyone Should Know. As of Wednesday morning, I think I provided an accurate statement of the law. This standard had been settled for four decades. But on Wednesday, the Court decided Cedar Point Nursery v. Hassid. For the first time this term, the Court split along 6-3 ideological lines. Chief Justice Roberts wrote the majority opinion. The six Republican-appointed Justices were in the majority, and the three Democratic-appointed Justices were in the dissent. Critically, Cedar Point quietly rewrote Takings Clause doctrine.

A hallmark of Chief Justice Roberts's jurisprudence is faux-minimalism. He professes to decide cases in narrow ways, and hesitates to actually overrule precedent. But in reality, he subtly modifies old doctrine. Cedar Point is the latest example of this approach. In a perfect world, the Court would overrule Penn Central. It was a disastrous decision for property rights. Alas, the Court lacks the commitment to take those steps. Instead, the majority misreads old precedents, and alters wide swaths of the law.

First, the Court eliminated the requirement that a categorical taking must involve a "permanent physical occupation." Consider a few statements from the Chief's majority opinion:

Whenever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place.

The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation.

The duration of an appropriation—just like the size of an appropriation, see Loretto, 458 U. S., at 436–437—bears only on the amount of compensation.

To begin with, we have held that a physical appropriation is a taking whether it is permanent or temporary.

The Court seems to suggest that any appropriation of property is a per se taking.

Of course, the million dollar question is what is an appropriation? Loretto drew a line between "permanent physical occupations" and "temporary physical invasions." Cedar Point Nursery eliminated that line, and did not replace it with anything. The duration of the appropriation has historically been the cornerstone of the Loretto framework.

Justice Breyer wrote the dissent. He responded in his usual staid fashion with an accurate statement of the law:

At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner's property and that this kind of temporary invasion amounts to a taking only if it goes "too far." See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 434 (1982).

How does the Chief get around this rule? He cites page 322 of Tahoe Sierra .

Our cases establish that "compensation is mandated when a leasehold is taken and the government occupies property for its own purposes, even though that use is temporary." Tahoe-Sierra, 535 U. S., at 322. 

But this section of Justice Stevens's opinion concerned actual appropriations of land, and not mere regulations of property. Here is the full passage, with the portion Roberts quoted in red:

When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, United States v. Pewee Coal Co., 341 U.S. 114, 115, 71 S.Ct. 670, 95 L.Ed. 809 (1951), regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary.

In this excerpt, the word "taken" means physically taken; not merely regulated. Justice Stevens explains the distinction in the next paragraph:

This longstanding distinction between acquisitions of property for public use, on the one hand, and regulations prohibiting private uses, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a "regulatory taking," and vice versa.

The Chief disregards this distinction. I am still struggling to grasp how sweeping this change will be for Takings Clause jurisprudence.

Second, the Court conflates regulatory takings and exactions. The leading exactions case is Nollan v. California Coastal Commission. In that case, a property owner requested a building permit. The government would only grant that permit if the property owner gave the state an easement. That easement would allow members of the public to walk from the street to the beach. Nollan held that this exaction was a violation of the Takings Clause. Traditionally, the doctrine for exactions has differed from the doctrine for regulatory takings. Cedar Points, however, conflates these two doctrines. The Court discuses Loretto and Nollan in the same context. Immediately after discussing Loretto, the Court pivots to Nollan.

We reiterated that the appropriation of an easement constitutes a physical taking in Nollan v. California Coastal Commission. . . . As a starting point to our analysis, we explained that,had the Commission simply required the Nollans to grant the public an easement across their property, "we have no doubt there would have been a taking." Id., at 831.

Once again, this citation is misleading. On page 831, the Nollan Court–per Justice Scalia–explains that there would be a taking in this hypothetical because there was a "permanent physical occupation" under Loretto.

We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.

An easement is a quintessential permanent physical occupation. And Nollan expressly relied on the "permanent physical occupation" test from LorettoNollan went on to discuss the specific dynamics of the exactions inquiry, which differs from the hypothetical offered at the outset.

Third, the Court misstates the analysis in PruneYard Shopping Center v. Robins (1980). The Chief wrote:

The Board and the dissent argue that PruneYard shows that limited rights of access to private property should be evaluated as regulatory rather than per se takings. See post, at 8–9. We disagree. Unlike the growers' properties, the PruneYard was open to the public, welcoming some 25,000 patrons a day. 447 U. S., at 77–78. Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.

Huh? PruneYard was a Penn Central case. Justice Rehnquist's majority opinion expressly adopted the three factors from Penn Central:

This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. Kaiser Aetna v. United States, supra, at 175, 100 S.Ct., at 390. When "regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants' property rights under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center.

The fact that there was no permanent physical occupation in that case supported the application of the three factors. (PruneYard was decided the term before Roberts clerked).

Justice Breyer pithily responds to the Chief's misstatement:

On the other hand, as the majority notes, the shopping center in PruneYard was open to the public generally. See ante, at 14–15. All these factors, how ever, are the stuff of which regulatory-balancing, not absolute per se, rules are made.

Though I do fault Justice Breyer for one small faux-pas. He referenced the "fee tail."

It does not, for example, take from the employers, or provide to the organizers, any freehold estate (e.g., a fee simple, fee tail, or life estate); any concurrent estate (e.g., a joint tenancy, tenancy in common, or tenancy by the entirety); or any leasehold estate (e.g., a term of years, periodic tenancy, or tenancy at will). See J. Dukeminier, J. Krier, G. Alexander, M. Schill, & L. Strahilevitz, Property 215–216, 222–224, 226, 343–345, 443–445 (8th ed. 2014). 

This interest was largely abolished around the time of the American Revolution. It exists, in theory at least, in a handful of states. Fortunately, any extant fee tail can be converted to a fee simple with a simple deed. This type of interest is thankfully moribund. I'm not even sure how a fee tail could be created in the blood-line of multiple union organizers.

Finally, the Chief applies this novel standard to the California regime:

As in those cases, the government here has appropriated a right of access to the growers' property, allowing union organizers to traverse it at will for three hours a day, 120 days a year. The regulation appropriates a right to physically invade the growers' property—to literally "take access," as the regulation provides. Cal. Code Regs.,tit. 8, §20900(e)(1)(C). It is therefore a per se physical taking under our precedents. Accordingly, the growers' complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments.

This statement is inconsistent with how Loretto has been understood. A "regulation [that] appropriates a right to physically invade the growers' property" is not a categorical taking. In the span of a few pages, the Court upset four decades of Takings Clause jurisprudence.

Here, my criticism of Roberts is somewhat against self-interest. The Court's modern Takings Clause jurisprudence borders on incoherent. I appreciate any effort to clarify and standardize the doctrine. And I am especially fond of cases that strengthen the judicial protection of property rights. But these changes to precedent should be made candidly.

Going forward, I have no idea how to teach the Takings unit. Cedar Point Nursery substantially disrupted the corpus of laws. I am grateful that I'm not teaching Property II this year. This unit will be a mess.

NEXT: Is antitrust a remedy for Big Tech's suppression of speech?

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  1. The facts in Cedar Point were so egregious that it’s not surprising the court felt it had to revise doctrine:

    “According to the complaint, in October 2015, at five o’clock one morning, members of the United Farm Workers entered Cedar Point’s property without prior notice. The organizers moved to the nursery’s trim shed, where hundreds of workers were preparing strawberry plants. Calling through bullhorns, the organizers disturbed operations, causing some workers to join the organizers in a protest and others to leave the worksite altogether.”

    Coming in with bullhorns at any hour is beyond any reasonable access, let alone at 5am while it’s still dark, even if they start work early too. The fact that some of the workers were disturbed enough to leave shows this was organizing, it was harassment.

    1. Yeah that incident definitely requires rewriting the Takings Clause as an exercise in union-busting. I mean, bullhorns, ffs. It’s like the time my neighbor came home after the bars and blasted his music at 3am. I had no choice but to burn his house down.

      1. Would you have preferred a narrower holding that the effects of union organizing are too speculative (or outright pernicious) to qualify as “for the public good” under Penn Central’s third prong?

        California and the union made their bed. Now they must lie in it.

        1. There’s nothing speculative about the public benefits of unionization. Or the public costs when the labor movement is finally finished off.

          And it appears Roberts laid down some extra straw in a stable and said “You sleep there now.”

          1. Sure, “finally finished off”, but that’s not going to happen.

            Look, the issue here is that unionization has costs as well as benefits, and in some ways is like nuclear warfare: It’s best used as a deterrent, but you don’t really want to launch.

            You get most of the benefits of unionization from the threat being plausible, and that doesn’t require everybody to bear the costs. It doesn’t require very many people to bear them, actually.

            That’s why the penetration of labor unions outside public workers is so low: Because most people do not WANT to be in a union! It’s something you resort to if you have no better options, not something you actively want.

            The only reason they’re so widespread among public workers is that they’re a handy way for politicians to launder tax money to their campaigns and pockets, so they deliberately encourage them.

            1. “That’s why the penetration of labor unions outside public workers is so low: Because most people do not WANT to be in a union! It’s something you resort to if you have no better options, not something you actively want.”

              Yet in other countries with fewer laws hostile to unions, way more people want to be (and are) members of private sector unions. Weird . . .

              1. Except in most others nations, they aren’t…?
                Germany, for example, has about a 15% union membership.
                The US has about an 11% union membership – the same as legendary anti-union stronghold France.
                The OECD averages 17% – an average dragged upwards by nations like Iceland and Sweden (90% and 70%) where union dues and rules apply to ALL workers by law, so not joining the union only means you get no benefits but still pay all the costs.

                It varies a lot by industry, of course, and so different levels of industry in each nation play a non-trivial role as well.

          2. “There’s nothing speculative about the public benefits of unionization.”

            You are correct. They are utterly non-existent, and everyone knows it

            “Or the public costs when the labor movement is finally finished off”
            You mean that Democrats will no longer be able to rob workers?

            That’s a public benefit, not a public cost

          3. There’s nothing speculative about the public benefits of unionization. Or the public costs when the labor movement is finally finished off.

            If you say so.
            All you have to do is convince the workers. They think otherwise

            1. “All you have to do is convince the workers. They think otherwise”

              Except, oh yeah! you have no opportunity to talk to the workers.

              1. Except during the majority of each day when the workers are not at their work site, or during their non-working days.

                You know, the other 80% of each year.

              2. Not if your going to act like that, then obviously your not going to have an opportunity.

                Look at the history of the law, it lasted 50 years, but it wasn’t getting the results the union wanted so they decided to get more aggressive and go with the unannounced invasion with bullhorns at 5am. That isn’t organizing that harassment or even assault. I wonder what the DB level of those bullhorns were, and how close they were to the workers, I also wonder what the union would think if the employer made his employees stand next to a machine that loud without hearing protection.

                Cedar Point never would have made a federal case out of it if the union hadn’t abused their access beyond all reason and the state hadn’t told them to lump it.

              3. From the history of this case and the underlying law, the unions had plenty of opportunity to talk freely with the workers. They set up stations on the public areas outside the farm where they could talk to workers as they came and left from work. They had the workers’ mailing addresses and phone numbers. They had multiple channels of communication – and yet the workers stubbornly kept refusing to sign up.

                It was not lack of access that led to unions lobbying the CA legislature for this particular law. It was the utter lack of success they were having using the access they had.

      2. It’s different because the land owner has a limited period of time to harvest his crop, and the state was mandating that the union could disrupt this almost at its leisure. One difference with your drunk neighbor is that the land owner took an economic loss here, and the question arises, why should he be the one taking the financial loss for what is really a narrow gain by a third party, mandated by this regulation?

      3. “It’s like the time my neighbor came home after the bars and blasted his music at 3am. I had no choice but to burn his house down.”

        No, you had the choice of calling the cops on him

        And now the growers, quite properly, have the same choice.

        They should have just nuked Penn Central. “Nor shall private property be taken for public use without just compensation.”

        It does not matter how important that “public use” is. If it’s really important, then the public should be willing to pay a lot to get it.

        Penn Central is a crap decision. This decision is a move in the right direction: If you want to take my property for public use, you pay for it

        1. It does not matter how important that “public use” is. If it’s really important, then the public should be willing to pay a lot to get it.

          Can we extend that to cases were the cops destroy the property of innocent third parties?

    2. Even if this actually happened (a big if), it only underscores how brutally these employers treat their workers. Imagine how bad your working conditions would have to be that you decide to JOIN the people that show up at 5 in the morning yelling on bullhorns. As for those that left the jobsite, they likely were walking off in protest, not because they were disturbed by the organizers. The court rewrote takings doctrine not to shield workers from bullhorns, it was to shield agribusinesses from oversight so that they can continue to pay migrant workers 2 dollars an hour to work sunup to sundown under horrible conditions.

      1. Yeah, I’ve done agricultural labor, at sub-minimum wage, back in the 70’s, alongside braceros and teens making some money during the summer. This isn’t an office or a factory floor, these are bored people looking for any excuse to get away with a break.

        And the trim shed is probably not being paid piecework, either, so it didn’t cost them anything if they thought they wouldn’t get fired for it.

        1. Teefah, at least make your arguments in good faith:
          “Even if this actually happened (a big if),”, if the plaintiff made a false or even a partially disputed claim of fact in their brief, the opposing brief would have called them out, the dissent would have bitterly ripped the majority for relying on a disputed account in the majority decision.

          Crickets. So please don’t try to claim it’s doubtful or in dispute in this case. Don’t sabotage your credibility more than you can help it. And you just show how outrageous the 5am bullhorn stunt was by trying to claim it didn’t happen, without even a single cite.

      2. “Imagine how bad your working conditions would have to be that you decide to JOIN the people that show up at 5 in the morning yelling on bullhorns.”

        Seriously? All they have to be is leftists.

        “As for those that left the jobsite, they likely were walking off in protest”

        No, the people who wanted to protest joined the protesters.

        The people who walked off didn’t want to have their hearing physically damaged by the a$$hole protesters.

        1. “All they have to be is leftists.”

          Yeah, working for an abusive employer tends to have that effect.

          1. Really?

            What % of the workers joined with the union thugs?

            What % voted Democrat in the last 3 elections?

            I’m going to bet that the first % is significantly lower than the second.

            Which is a strong argument against your “horrible abusive employer” claim.

            Feel free to try to prove me wrong. I’d love to see the actual numbers

      3. That excuse won’t fly, if that were the case the workers would have already voted for the union. Then there wouldn’t need to be such aggressive tactics to try to force them too.

      4. That comment is astonishingly ignorant of the actual facts. Try going out and getting a job. Or even better, try starting your own business. And if you’re too lazy to do that, at least read the briefings in this particular case.

  2. The Court [in Loretto] observed that a “taking” is less likely to be found “when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.”

    This is positively bizarre. A proto-taking is less likely to be a taking if it arises from a scheme to promote the common good ? Do government actors go round taking things and admitting that they are not seeking to promote the common good ?

    Or are the courts simply commenting on whether the scheme does or not promote the common good ? Nah don’t think much of your light rail scheme – pay up. Mmm – the free country club memberships for State judges looks exactly like the common good to me – no taking there !

  3. The root principle of the takings clause, and the general welfare clause, and much else in the Constitution, is that government acts for the general, not particular, welfare, and the costs of those actions are to fall on the general population, not selected fall guys.

    If a cost is justified by the benefits to the general population, the general population should bear that cost. If the cost isn’t justified by benefit to the general population, NOBODY should bear it.

    From this perspective, pretty much EVERY cost the government imposes should be viewed as a taking, monetized, and spread evenly.

    The alternate view is that you disperse benefits and concentrate costs, so that as many voterspeople as possible are net beneficiaries, even if the program in question is a net cost to society. It’s an attractive approach in a democracy, the benefits to politicians are obvious, even though it impoverishes a society by making programs that are a net cost to society politically viable.

    1. All costs should be evenly shared.

      All benefits should be evenly shared.

      Hmmm….

      Are you sure you’re not a communist?

      1. Quite sure. Never said all costs and benefits should be evenly shared. Only costs and benefits routed through the government.

        Which should be minimized, only the things which unavoidably have to be done in common.

        A communist would be all big talk about equalizing everything, but instead plan on ending up with nice vacation homes while the proletariat at cabbage; Communism is a con, remember, you’re not actually supposed to end up owning the bridge.

        1. Esp now, in an increasingly union hostile environment across the country, why is the (CA) government advancing narrow proprietary goals, at financial expense to a landowner, and expecting not to have to pay for his financial losses?

          1. Because the unions provide the Democratic party with substantial off the books campaign labor, as well as laundering a lot of money into political donations, they’re trying to compensate for that increasingly union hostile environment. By giving the unions every advantage they can.

      2. The problem here is that there was private loss and gain here. The Union leadership (and through them, Dem politicians) gained, while the landowner was hurt financially, by this regulation.

      3. Bam not sure that is what he is saying in his comment. I found the comment to be more of a critique of democracy as it shows the benefits to elected representatives of socializing costs.

        I could be misreading his comment?

        1. Democracy works fine so long as you can prevent the government from concentrating the costs of policies in a small enough group of people that the costs are no longer politically relevant.

          If you have a policy that costs $1000, and delivers $500 worth of benefits, it’s a complete non-starter if the costs are distributed evenly. But if you have 10 people voting, and can distribute the benefits over 9 of them, and subject the 10th person to all the costs, it’s going to win every time.

          That’s basically the business politicians are in, in a modern democracy: If you can separate costs and benefits, and impose the costs on a small group of designated fall guys, and spread the benefits over a larger group, you can win elections even if everything you’re doing is making society poorer.

          Thus progressive taxation, efforts to avoid paying for takings, and the vast expansion of the modern state. Which could not remotely be afforded by most people if the costs were equally spread about.

  4. I am not so upset at how this decision worked, by tweaking definitions and misinterpreting precedents, then opening a hole big enough to drive a truck through. This is nothing new, but rather how I was taught, 35 years ago in LS how the Supreme Court typically reversed itself. They have been traditionally disinclined to admit that previous Courts were wrong, and their previous holdings had to be reversed. This had been saved for very important changes in direction.

    I think that this also very much depends on the personality of the author of an opinion. CJ Robert’s is a clever Justice, who appears to enjoy being clever. Justice Thomas, for one. Is much more the plain talker, who seems to eschew this sort of judicial games, and instead prefers bright lines.

    1. Ah, the difference between “clever” and “smart” has never been so clearly displayed. 🙂

      Clever people want to play games to show off how clever they are

      Smart people simply want to get the correct answer

      1. Maybe a false dichotomy. People can be both smart and clever, and this is the profession that may see more of that than others.

        One of my pet peeves with the legal profession, is that many of us are too clever for our own good, or at least the good of society. One of the benefits of a high IQ is the ability to deal with complexity. And the higher the IQ, in many cases, the greater the ability to deal with even more complexity. The median IQ of attorneys is roughly one standard deviation above the mean. This means that there are plenty with IQs two standard deviations above, and even with three and more. The result seems to be complexity adopted almost for the sake of complexity. And that only really benefits members of the priesthood, who have to interpret for the rest of society.

        That is why I love a lot of Justice Thomas’ opinions. CJ Robert’s seems to love counting angels on the heads of pins, and writing double fake opinions, while Thomas writes with a broad brush, simplifying what was, in the past, impenetrable precedent.

        One thing that I learned in my previous profession as a software designer, was that it often took someone even smarter to simplify what looks like an intractable problem.

  5. My my not a lawyer opinion is that some members on the Supreme Court realized that politicians have reached a level of absurdity in how they favored their benefactors over the public that it needed to be reigned in. It would not surprise me if these same members were hoping to head off similar attempts at a national level.

    Now if they just would do the same with Qualified Immunity and forfeiture abuses

    1. Democrats get help from union members and unions, and attempt to arrange benefits for unions and union members.

      Sounds like democracy in action, much like Republicans getting support from bigots, polluters, religious zealots, and gun nuts, and correspondingly attempting to arrange benefits for bigots, polluters, religious zealots, and gun nuts.

      What really bothers conservatives about this situation is that the liberal-libertarian mainstream has ideas that are more popular and therefore has been crafting our national progress for decades.

      1. No, Rev.

        Democrats, with the connivance of the union bosses, steal money from union members.

        Then Democrats give benefits to the union bosses as a payoff.

        This is corruption in action, not democracy.

        1. Someone once said, in response to breads and circuses, that voting to get stuff into your pockets is not a conflict of interest. It’s how things are supposed to work.

          At that point, I almost barfed. Yes, this country was designed, not to be free from government intrusion, but for the power hungry to joyously use it!

        2. If anyone doubts the unions purposely steal from the workers look at how the SEIU colluded with state governments to declare by fiat that home health care workers, many of them caring for their own children and getting federal funds for it were in a union.

          “Illinois resident Pam Harris is a 55-year-old mom earning less than the minimum wage who cares for her son Josh Harris, 25. He has Rubinstein-Taybi syndrome, a muscular degenerative disease, compounded by physical disabilities and mental illness.

          Josh and his family qualify for an Illinois home-based support-services program that lets disabled adults live at home. He gets $721 each month from Medicaid.

          In January 2009, Gov. Quinn, who has taken nearly $5 million in campaign contributions from SEIU, signed an executive order stating these home caregivers — even moms and dads — are in fact public employees available to be unionized by the SEIU, which had been granted exclusive representation rights over the state’s 20,475 “personal assistants,” as they were designated.

          “One penny, one dollar taken out of (the monthly stipend) is taken out of support or services for Josh,” she said. “Being in a union is incompatible, intrusive and going to interfere with the care I provide. The union is there to protect the union worker, so I don’t see how Josh benefits.”

    2. Pet peeve alert:
      – You reign as a monarch.
      – You rein in a horse.
      – And, of course, the rain in Spain falls mainly in the plain.

      Autocorrect is not our friend…

  6. I wish some S/C justice or clerk knew something about real property law.

    The farm owner can eliminate the access right by unilaterally changing the use of the property away from a farm with employed labor. If it was an easement, that could not happen.

    So, its not an easement but a license.

    1. Hmm, so, just spitballing here:

      A Red State government could order that any social media company that wants to operate in their State (meaning have any users in the State, be available to be read by anyone in the State), it must allow the Republican Party to send mass posts to every single user 3 hours a day, 120 days a year (say, the month before primary / general elections, plus other strategic times)?

      And that if they don’t like that, they can simply stop being social media companies?

      1. and when the state’s citizens complain that their user accounts don’t work any more, whom may they sue?

  7. I see the open thread disappeared. Any idea why?

    1. The record inclines a guess that someone made fun of conservatives and the Volokh Conspiracy Board of Censors again exercised its right to impose viewpoint-driven censorship.

      Or maybe one of the Volokh Conspiracy’s preferred commenters went beyond the customary ‘Zyklon showers, shots in the face, and being placed face-down in landfills for liberals’ chatter.

  8. Perhaps the Court is thinking again about the effect of over regulation and back tracking on previous decisions because as we move into a period where more regulation seems ascendant whether for “climate change” or “diversity, equity and inclusion”.

    In many case the heavy had of regulation effectively creates favored classes of those with the appropriate connections, social standing or reputation.

    1. “In many case the heavy had of regulation effectively creates favored classes of those with the appropriate connections, social standing or reputation.”

      That’s just the way Conservatives like it! Look at the last two people they’ve managed to elect to the Presidency. First you had G W “I get to be President because my daddy was President” Bush and then Donald J “I get to be President because I inherited a lot of money from my daddy” Trump.

  9. “The Board and the dissent argue that PruneYard shows that limited rights of access to private property should be evaluated as regulatory rather than per se takings. See post, at 8–9. We disagree. Unlike the growers’ properties, the PruneYard was open to the public, welcoming some 25,000 patrons a day. 447 U. S., at 77–78. Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.”

    I think this is bad news for our would-be tech overlords, whose properties are “open to the public, welcoming [far more than] 25,000 patrons a day”

    1. “I think this is bad news for our would-be tech overlords, whose properties are ‘open to the public, welcoming [far more than] 25,000 patrons a day'”

      You poor SOB. You think Facebook considers you a patron. Your aren’t. Your eyeballs are to be harvested and served to their ACTUAL customers.

  10. “For the first time this term, the Court split along 6-3 ideological lines.”

    False.

    Edwards v. Vannoy

    1. It’s amusing, because the subhead was correct: “For the first time, the 6-3 conservative majority powered a hard-right change in the law.”, but the text, as you noted, was not.

      Edwards v. Vannoy blocked a hard left move (throw out every single less than 12-0 conviction that ever happened), but didn’t power anything to the right.

      But is was 6-3 good guys – bad guys

      1. “Edwards v. Vannoy blocked a hard left move (throw out every single less than 12-0 conviction that ever happened)”

        The problem with your analysis is that Oregon, a blue state, is one of the states that allowed 11-1 convictions. Turns out this isn’t really a partisan issue, much less a hard partisan one.

  11. There’s just no textual reason to distinguish between permanent and temporary physical occupations. The government is taking your property for its own use. Whether you get it back later or not has no bearing on whether you were deprived of it.

    1. Meh. It isn’t really “taken” until you can’t use it yourself any more. So, for example, allowing airplanes to fly over your property isn’t a taking, until the FAA tells you you can’t use the property for sky-diving any more because other planes might hit your parachutes. telling you that your business has to serve any customer who shows up with your asking price in hand isn’t a taking,either.

  12. Now let’s apply this logic to a state law requiring that a tech company MUST give unfettered access to it’s systems to a political candidate.

    will Florida be paying Facebook to allow der Trumpfenfuhrer to have a Facebook account?

    Will it be actionable if Twitter sets up a special account for Trump that, no matter what text he sends it, only posts “I’m a Loser. I lost in 2020.” under his account?

    1. It may be legal under common carrier and monopoly law, but I’m not sure I approve of it.

      But I wonder what your limiting principle is? What’s the difference between a lunch counter deciding who they should serve and not serve, and Mark Zuckerberg deciding who to serve and not to serve?

      1. “It may be legal under common carrier and monopoly law”

        Neither of these has any application in the hypothetical as given.

      2. ” What’s the difference between a lunch counter deciding who they should serve and not serve, and Mark Zuckerberg deciding who to serve and not to serve?”

        You seem to think there is one.

  13. While described as “a novel concept “, the reasoning of CJ Robert’s is in accord with anyone involved in the real estate industry. It strains credulity to say that physical access/ occupation of a landowners property for 3 hours per day for 120 days per year is a mere regulation. It’s a license for anyone who has even a passing experience with non residential real estate. An office, warehouse, or commercial broker would recognize the occupation as a license. Real estate developers and leasing agents would recognize the license.

    Last term there were befuddled and ” unique ” misunderstanding of easements in the real and legal world. License this opinion. I know that deference is given to union rights and government regulations but, at some point, the abuse of property rights is a bridge too far.

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