The Supreme Court’s 2021 ruling in Cedar Point Nursery is perhaps the most troubling ruling on the law of takings the Court has handed down in decades. In it, the Court recast one of the per se takings tests to give broader constitutional protection to a landowner’s ability to keep outsiders away. In so doing, it created a test that casts doubt on the constitutionality of a wide array of property laws and regulations, past and future. The decision throws a wrench into the gears of democratic lawmaking, in the process threatening the productivity and moral soundness of private landownership as an organic, evolving social institution. And it has done so right at a moment when pressing environmental and social justice concerns call us to realign how we inhabit and share our landscapes. What is needed instead is a takings law—including a public use component—that goes beyond protecting landowner liberties to safeguard the institution as such; a more process-oriented takings jurisprudence that would help guide lawmakers at all levels who tinker with the elements of property ownership, heightening their awareness of what they are doing and pressing them to respect the components of private property most critical to the institution’s flourishing.
* Research Professor of Law and Swanlund Chair Emeritus, University of Illinois at Urbana-Champaign. My thanks go to the many people kind enough to offer comments on this article, chiefly at a faculty retreat at my home institution and at a Progressive Property Workshop ably organized by John Lovett and Rashmi Dyal-Chand. Further good comments were offered by Michael Blumm and Tim Mulvaney.
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