Oversights by lawyers, judges, and legal scholars have caused the Supreme Court’s opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court rewrote much of takings law by treating temporary and part-time entries by the government or third parties onto private property as per se takings. Prior to Cedar Point, these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there was a well-established rule of black letter law that California’s lawyers and amici failed to invoke in defending the Cedar Point union organizer’s access regulation: A physical takings claim accrues when a regulation authorizing third parties to enter private property is promulgated, not when the third party actually enters the land. A second timing rule was plausibly applicable too: Only the party that owned the land at the time the physical taking cause of action accrued can prevail, and Cedar Point Nursery acquired the land at issue decades later. As a result, Cedar Point Nursery’s lawsuit was filed decades too late. Quite possibly by the wrong plaintiff. California’s mistakes were probably outcome determinative.
Moving beyond Monday-morning quarterbacking, we argue that the statute of limitations arguments available to governments in future cases help provide the essential limiting principles that went unmentioned in Cedar Point. In the aftermath of Cedar Point, prominent scholars denounced the opinion as a vehicle for gutting antidiscrimination law, labor law, environmental law, rent control, and other parts of the regulatory state. Our analysis reveals that these concerns are likely exaggerated because defenders of those longstanding limits on the right to exclude can invoke the statute of limitations arguments that California’s lawyers failed to raise. On the other hand, new restrictions on owners’ rights to exclude are vulnerable to legal challenge. Properly understood, contemporary takings law grandfathers in many longstanding limits on the right to exclude while constraining governments that wish to tackle collective action problems by restricting property rights in new ways. Moreover, statutes of limitations and related doctrines can provide courts with something that has been elusive since the Supreme Court’s 1992 takings decision in Lucas v. South Carolina Coastal Council: a principled and coherent account of what restrictions on owners’ rights are impervious to takings claims because they qualify as background principles of state property law.
Rebecca Hansen & Lior Jacob Strahilevitz,
Toward Principled Background Principles in Takings Law,
Tex. A&M L. Rev.
Available at: https://doi.org/10.37419/LR.V10.I3.3