Property and the Right to Enter

51 Pages Posted: 11 Apr 2022

See all articles by Bethany Berger

Bethany Berger

University of Connecticut School of Law

Date Written: April 7, 2022

Abstract

On June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, history, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. The legal advocacy that led to Cedar Point continues this trend, both undermining protections for vulnerable immigrant workers in this case, and succeeding in a decades long effort to use exclusion as a constitutional shield against regulation.

Keywords: Property, Takings, Cedar Point, Supreme Court, Pacific Legal, Legal History, Constitutional Law, Eminent Domain, Migrant Workers

JEL Classification: KF10

Suggested Citation

Berger, Bethany, Property and the Right to Enter (April 7, 2022). Washington and Lee Law Review, 2023 Forthcoming, Available at SSRN: https://ssrn.com/abstract=4078255 or http://dx.doi.org/10.2139/ssrn.4078255

Bethany Berger (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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