Staying in the Takings Lane: The Compensation Issue in <i>Cedar Point Nursery</i>

The Supreme Court held in Cedar Point Nursery v. Hassid that a California regulation mandating that union organizers have occasional access to privately owned farms was a per se taking because it stripped the farm owners of the right to exclude. The decision almost certainly departed from prior law, and I briefly review some of the critiques of the majority opinion. But my focus is on questions that arise if one accepts the Court’s conclusion that the regulation is indeed a taking: First, I briefly discuss whether we should permit the taking so long as the owners are compensated or enjoin the taking either because it is not “for public use” or because compensation, a form of damages, is not an adequate remedy for losses that are either not readily commensurable with money or are extraordinarily difficult to measure. Second, I discuss how we should measure compensable losses and, more particularly, whether we should compensate owners because the regulation makes them more vulnerable to what they see as profit-reducing unionization.

I note that the fact that a plaintiff might not have sustained reputational losses absent a trespass that gave the trespassers access to reputation-damaging information does not mean that the damages for trespass should incorporate the damages for reputational losses (which should instead be assessed by reference to a different “track” of law, defamation law). What the owners in Cedar Point Nursery are entitled to is compensation only for the loss of rights that physical takings law protects—in cases like this of temporary access mandates, losses that inhere in having to share use of a portion of the property with others—and we must deal with the validity of laws limiting the capacity to suppress unionization efforts in their own right.