William & Mary Bill of Rights Journal


In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a seminal case that will alter the Court’s Takings Clause analysis as it is currently understood. Additionally, this Note will use the recent eviction moratorium as a case study, predicting the success of landlords at recovering income under the Takings Clause.

Part I of this Note will focus on the history of the Takings Clause, the relationship of the Takings Clause to property rights in the Western tradition, a generalized history of property rights in the Western tradition, and the role of the Takings Clause as a limitation on private property rights in the United States. Part II of this Note will provide an overview of takings pre–Cedar Point, focusing on the different kinds of takings, the use of history by the Supreme Court to decide Takings Clause cases, and the meaning of “just compensation.” Part III of this Note will provide an overview of expected Takings Clause analysis after Cedar Point Nursery, addressing the future of temporary takings and per se takings by analyzing the opinion of the Court in Cedar Point Nursery. Part III will also address Justice Breyer’s dissent in Cedar Point Nursery. Part IV will address a normative question: whether the Supreme Court made the right decision in Cedar Point Nursery, highlighting both an Originalist and a non-Originalist argument as well as other arguments that could be made regarding the Court’s decision. Finally, Part V will address the expectation for landlords making a Takings Clause claim given the Court’s Takings Clause jurisprudence in Cedar Point Nursery.

This abstract has been adapted from the author's introduction.