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What's Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

Faculty Publications

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so. In 2021, the Court held that a California law allowing access by union organizers to enter private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on …