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Texas A&M University School of Law

Property Law and Real Estate

2023

Texas A&M Law Review

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Toward Principled Background Principles In Takings Law, Rebecca Hansen, Lior Jacob Strahilevitz Mar 2023

Toward Principled Background Principles In Takings Law, Rebecca Hansen, Lior Jacob Strahilevitz

Texas A&M Law Review

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 …