Taking Stock of Property Essentialism

Abstract

A recent line of Supreme Court cases on the Takings Clause, most strikingly Cedar Point Nursery v. Hassid, which held that a California law granting labor organizers a right to access agricultural property constituted a per se physical taking, has advanced an increasingly essentialist vision of property rights. Property essentialism—the view that the essence of a property right is the right of an owner to exert control over a thing, including by excluding others from the use of the thing—has historically been antithetical to the Takings Clause, which permits government acquisitions of private property so long as the government pays “just compensation.” This Article argues that, taken seriously, the Cedar Point approach shifts Takings law from the goal of compensation to the goal of deterrence. In other words, the Court’s new approach seeks to substitute what Calabresi and Melamed famously called “property rule” protection for the “liability rule” protection that the Takings Clause traditionally provided. The import of the Court’s essentialist language so far has been little more than rhetorical, but the logic of this language opens the door to potentially sweeping changes in Takings doctrine. The Court should not go further down this road. Not only would the introduction of property essentialism be in stark tension with the text of the Takings Clause and with longstanding precedent, it would also produce adverse—and to some degree unintended—consequences, undermining the policies that the Takings Clause has traditionally vindicated and ultimately jeopardizing the Constitution’s protection of private property. Moreover, the incompatibility of the Takings Clause with property essentialism provides new and powerful grounds for rejecting property essentialism as both a normative aspiration for and an empirical characterization of U.S. property law.

Keywords: Takings Clause, property essentialism, right to exclude, property rules and liability rules, regulatory taking, remedies for takings, just compensation, fair market value