Cedar Point Nursery and the End of the New Deal Settlement

22 Pages Posted: 26 Jul 2022 Last revised: 21 Sep 2022

See all articles by Julia D. Mahoney

Julia D. Mahoney

University of Virginia School of Law

Date Written: July 25, 2022

Abstract

In Cedar Point Nursery v. Hassid, the United States Supreme Court ruled that a California state regulation granting labor organizations a limited “right to take access” to agricultural employers’ property constitutes a per se physical taking. Cedar Point has sparked intense criticism, with critics arguing that the decision threatens to transform the law of property rights so as to “hobble” government land use regulation and even undermine democracy. This Article explains why the objections of Cedar Point’s detractors are misplaced. Far from disabling government regulation or fomenting stasis by favoring the “already haves,” Cedar Point is best understood as another step in the normalization of property rights. In this, Cedar Point is in accord with other recent Court decisions, including Horne v. Department of Agriculture, and Knick v Township of Scott. These cases illustrate how constitutional recognition of property interests, duly enforced by the judiciary, protect the interests of the working and middle classes. That is no small thing, particularly at a time of well-justified concerns about the outsize influence of elites on the legislative and executive branches of government, with its attendant worries that those who lack power to defend themselves in the political and administrative arenas are vulnerable to “redistribution up.”

It is true that this normalization of property rights amounts to a retreat from the “New Deal Settlement,” under which courts declined to subject legislative and administrative actions affecting property rights to significant oversight. But for anyone who cares about the economically vulnerable, the passing of the New Deal Settlement should be cause for celebration rather than alarm. Eighty years on, it is evident that the costs to many poor communities of judicial abdication in the area of property rights were very high. The careful readjustment now underway does nothing more than recognize property’s status as a civil and human right, one that needs serious constitutional protection if people are to flourish as citizens, family members, and workers.

Keywords: Property, Real Estate, Land Use, Regulation, Supreme Court, Takings, Trespass, Eminent Domain

JEL Classification: K11, K23, K31, R14

Suggested Citation

Mahoney, Julia D., Cedar Point Nursery and the End of the New Deal Settlement (July 25, 2022). 11 Brigham-Kanner Property Rights Journal (2022), Virginia Public Law and Legal Theory Research Paper No. 2022-50, Virginia Law and Economics Research Paper No. 2022-15, Available at SSRN: https://ssrn.com/abstract=4172369

Julia D. Mahoney (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3942 (Phone)

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