Property against Legality: Takings after Cedar Point

*Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School, with support from the Frank J. Cicero Fund. I am grateful to Larissa Katz for her thoughtful engagement with this paper. Thanks to Caroline Xavier Hardie and other student editors at the Virginia Law Review for their superlative work. All remaining errors are mine.Show More

In the American constitutional tradition, a zealous judicial defense of property is closely aligned with the idea of “the rule of law.” Conventional wisdom holds that the Takings Clause of the Fifth Amendment vindicates both property rights and the rule of law by foreclosing arbitrary, lawless state action. But the standard story linking property rights, legality, and a constraint on arbitrary governance is more commonly stipulated than analyzed. This Article uses an apparent sharp break in takings jurisprudence, the United States Supreme Court’s June 2021 decision in Cedar Point Nursery v. Hassid, to closely scrutinize the relationship between legality and property rights. To that end, it offers first a careful analysis of the sharp rupture that Cedar Point makes in takings jurisprudence. Not only is the Court’s result difficult to explain in terms of precedent or traditional legal methods, it also destabilizes a previously settled and reasonably predictable litigation landscape. As a result, it seeds profound uncertainty on the legal ground because it signals a dissolution of the constraining effect formerly realized by standard tools of legal reasoning. There is, further, no obvious way for the Court to restore stability and predictability to the doctrine without drawing new, arbitrary lines. In consequence, takings law will likely abide in confusion, not certainty, for the foreseeable future. Cedar Point’s vindication of property rights hence comes at the paradoxical cost of dramatically increasing the space for decisions unguided by law by one group of officials in the judiciary.

A close reading of Cedar Point invites a more general and abstract analysis of the complex, nuanced relationship between the rule of law and property rights. Drawing on the general jurisprudential theories of H.L.A. Hart and other legal positivists, I use the decision as a launching point for a larger exploration of ways in which the rule of law can be incompletely realized to paradoxical and even socially harmful effect. Placing property at the center of the rule of law, I suggest, can be consistent with, or even an incitement to, serious derogation of the rule of law. Doing so can undermine rule-of-law goals, such as constraining arbitrary rule. This suggests a need to decenter property rights in accounts of the rule of law, and to explore, in more nuanced and grounded fashion, how the practice of judicial review mediates systemic values of legality and predictability. In short, if we value the rule of law, it may in general be appropriate to take a more skeptical, and so more contingent, view of both property as a legal institution, and also the courts as a source of legality and stability.

Introduction

Property and its zealous defense are closely associated with the rule of law in the American constitutional tradition. A “total, arbitrary, and capricious power” is conceived as the enemy of both.¹ 1.Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in NomosXXII: Property 3, 5 (J. Roland Pennock & John W. Chapman eds., 1980).Show More In Federalist 70, Alexander Hamilton thus termed the constitutional “protection of property against those irregular and high handed combinations, which sometimes interrupt the ordinary course of justice.”² 2.The Federalist No. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).Show More Writing just after the Constitution’s ratification, James Madison warned that “just government” and “secure” property are imperiled by “arbitrary restrictions, exemptions, and monopolies [that] deny to part of its citizens that free use of their faculties . . . which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”³ 3.James Madison, Property, Nat’l Gazette, Mar. 27, 1792, reprinted in 14 The Papers of James Madison 266, 267 (Robert A. Rutland et al. eds., 1983).Show More John Adams agreed. He opined that “[p]roperty must be secured, or liberty cannot exist.”⁴ 4.Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (quoting John Adams, Discourses on Davila, in 6 The Works of John Adams 223, 280 (Charles Francis Adams ed., 1851)).Show More In a leading constitutional treatise of the early Republic, St. George Tucker also identified the Takings Clause of the Fifth Amendment as a means “to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses.”⁵ 5.St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, app. at 305–06 (Augustus M. Kelley 1969) (1803); see also Armstrong v. United States, 364 U.S. 40, 49 (1960) (describing the Clause’s aim as preventing the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole”).Show More The U.S. Supreme Court concurs. Citing Madison, Adams, and others, the Justices have posited that enforcement of the Takings Clause “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.”⁶ 6.Murrv.Wisconsin, 137 S. Ct. 1933, 1943 (2017); Cedar Point, 141 S. Ct. at 2071 (quoting Murr, 137 S. Ct. at 1943); see also Sveen v. Melin, 138 S. Ct. 1815, 1827 (2018) (Gorsuch, J., dissenting) (“Federalists like Madison countered that the rule of law permitted ‘property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.’” (citation omitted)). The same theme is found in academic literature. See Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law 12 (2011) (describing a “close connection” between property’s protection and the rule of law); James W. Ely, Jr., Property Rights and Judicial Activism, 1 Geo. J.L. & Pub. Pol’y 125, 126 (2002) (“The Framers realized that robust protection of the rights of property owners undergirds liberty by diffusing power and protecting individual autonomy from governmental control.”).Show More Judicial protection of property rights serves the rule of law, on this account, by making state action predictable, by restraining arbitrary uses of state power, and by empowering citizens and others to chart their own “destinies” free of government control.

In this way, the idea of the rule of law, albeit not mentioned explicitly in the Constitution, has become “central to our political and rhetorical traditions, possibly even to our sense of national identity.”⁷ 7.Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 3 (1997).Show More Scholars keenly debate what the rule of law—which is also sometimes called the principle of legality⁸ 8.See, e.g., Lon L. Fuller, The Morality of Law 44 (rev. ed. 1969) (using the phrase “the demands of legality” to capture the rule of law).Show More—requires.⁹ 9.Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law & Phil. 137, 140–44 (2002) (surveying disputes over its meaning).Show More But a kernel of common ground is apparent: the rule of law is commonly defined as the law’s clarity, stability, and predictability.¹⁰ 10.Fuller, supra note 8, at 39 (listing traits of the rule of law, including clarity and the capacity to be followed).Show More These qualities foster “confidence about the legal consequences of their actions.”¹¹ 11.Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); see also Lawrence B. Solum, Equity and the Rule of Law, in Nomos XXXVI: The Rule of Law 120, 121 (Ian Shapiro ed., 1994) (including “generality, publicity, and regularity” among the rule of law’s features).Show More In contrast, state actions animated by “caprice, passion, bias, [or] prejudice” are all “antithetical to the rule of law.”¹² 12.TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 475 (1993) (O’Connor, J., dissenting). The association of the rule of law with the constraint of official action goes back to a Victorian legal theorist who was one of the early adopters of the term “rule of law.” A.V. Dicey, Introduction to the Study of the Law of the Constitution 181–205 (10th ed. 1959).Show More As such, they cannot be ranked as properly legalistic state action. Such improper—but not, note well, ipso facto illegal—species of official action are impossible if those with official power “exercise their power within a constraining framework of public norms, rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong.”¹³ 13.Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 6 (2008) [hereinafter Waldron, The Concept and the Rule].Show More Clear, predictable, and stable law binds officials at the same time that it guides citizens. Indeed, the two guidance functions are entwined. An official’s “arbitrary” exercise of power is not just the rule of law’s antipode.¹⁴ 14.Joseph Raz, The Rule of Law and its Virtue, in The Authority of Law: Essays on Law and Morality 210, 224 (1979) [hereinafter Raz, Rule of Law and its Virtue] (“The law inevitably creates a great danger of arbitrary power—the rule of law is designed to minimize the danger created by the law itself.”).Show More It is also the antithesis of individual liberty.¹⁵ 15.The kind of liberty protected by the rule of law is, again, contested and plural. See Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 34–35 (2004) (distinguishing four kinds of freedom protected by the rule of law). The most relevant here are the freedom from unlicensed (and so unpredictable) legal constraint, and the preservation of a zone of personal autonomy. Id.Show More And so, in this standard narrative, there is a profound complementarity between the rule of law, property rights, and liberty.¹⁶ 16.Some accounts go further and suggest that it is the propertied who will have the leisure and the resources to defend rule of laws. Minogue, supra note 1, at 8.Show More

This Article interrogates this standard account of how property rights and the rule of law relate to each other in American constitutional law. Its point of departure is a 2021 Supreme Court opinion about the constitutional status of property rights. That judgment is important in its own right. It changes, potentially quite dramatically, the scope of constitutional protection for real property under the Takings Clause of the Fifth Amendment.¹⁷ 17.See U.S. Const. amend. V (stating that “private property [shall not] be taken for public use, without just compensation”).Show More Whatever its exact effects on the ground (literally!) may be, it certainly marks a sea change in Fifth Amendment jurisprudence.

Cedar Point Nursery v. Hassid¹⁸ 18.141 S. Ct. 2063 (2021).Show More held that a 1976 California “take access” regulation permitting union organizers to approach and talk to agricultural workers was a taking requiring compensation under the Fifth Amendment.¹⁹ 19.Cal. Code Regs. tit. 8, § 20900(e)(3) (2021); see also Cedar Point, 141 S. Ct. at 2069, 2072 (describing regulatory framework for agricultural labor under California law).Show More Part of a larger constitutional transformation sweeping over the separation of powers, the Religion Clauses, and abortion jurisprudence during the Roberts Court, Cedar Point has received less attention than other recent doctrinal convulsions. This neglect is unjustified.

A first contribution of this Article is to explore the possibility that the decision prefigures a dramatic and destabilizing shift in the nature of constitutional property. The legal uncertainty unleashed by that opinion is not likely to abate given the absence of any stable limit on the Court’s apparent reworking of the concept of constitutional property. Of larger theoretical significance, Cedar Point illustrates one way in which property rights and the rule of law can diverge, notwithstanding the standard story, to enlarge the scope for arbitrary state action. Hence, it invites the Article’s second, more theoretical contribution—a nuanced and careful theorization of property’s complex, many-stranded relation to the rule of law.

My analysis begins with the particulars of Cedar Point. The decision’s immediate effect, of course, was to change the terms for the increasingly beleaguered organized labor movement in one of the nation’s most important and fertile agricultural breadbaskets. Its longer-term, more abstract consequence was its implicit invitation for the future reworking of takings doctrine. In particular, the 2021 decision unraveled a central organizing conceit of takings jurisprudence. The latter has stabilized and channeled potential litigants’ expectations for decades. By diminishing the predictive value of precedent respecting property’s boundaries, the Court created uncertainty where property owners and officials previously had benefited from stable expectations.

Prior to Cedar Point, owners and officials got a reasonably clear sense of litigation outcomes by asking whether a state action was an “appropriation” or “regulation” as those words are used in everyday conversation. Under longstanding doctrine, legal challenges to appropriations generally prevailed under a “per se” rule. In contrast, the balancing test applicable to regulations typically, albeit far from inevitably, tilted in favor of the government. Distinguishing appropriations from regulations, moreover, was relatively straightforward when it came to real and chattel property. If the government indefinitely deprived you of the whole or part of the physical thing, you could typically expect to win a takings case.

To be sure, the doctrine elsewhere had other wrinkles. But in the vast majority of cases, these mattered only on 1L property exams and (very occasionally) in appellate litigation. The ensuing doctrine was relatively transparent, even to lay people unburdened by the intellectual pretensions of a legal education.

The Court in Cedar Point did not openly abandon the distinction between appropriations and regulations. More perplexingly, it invoked that distinction while refusing to deploy the ordinary meaning of an “appropriation.” While the verbal formulation of the law remained the same, a key doctrinal term with a clear and predictable lay meaning was replaced with an amorphous category of uncertain and unpredictable application. Legal and ordinary language hence parted company. By diminishing the clarifying force of doctrine, the Court created uncertainty where property owners and officials previously had reasonably stable expectations. This is one way in which Cedar Point revealed a tension between property rights and the clarity, stability, and predictability ambitions of the rule of law. Protecting the first can diminish the latter.

Another tension underlying the majority’s reasoning can be discerned by attending to its methodological choices: the Cedar Point Court ostentatiously relied on dictionaries, ordinary public meaning, and the binding force of precedent. But read closely, each of these argumentative threads unravel. Dictionary definitions were selectively picked; actual lay usage was ignored; and precedent was invoked only via selective quotation—distorting earlier constitutional holdings. In execution, therefore, Cedar Point’s vindication of property rights stood at odds with the application of familiar legal methods central to the rule of law.²⁰ 20.See Andrei Marmor, The Rule of Law and Its Limits, 23 Law & Phil. 1, 3 (2004).Show More Nor does the decision promise future clarity or stability.

Worse, Cedar Point did not ask or answer a crucial question: What distinguishes an impermissible “appropriation” from a “regulation” under the Takings Clause? The majority opinion offers hints. But none of these hold promise as a principled basis on which to draw a line between regulation and appropriation. Indeed, the ultimate, long-term effect of Cedar Point may well be to collapse the longstanding distinction between appropriations and regulations—a legal regime where most government action would be evaluated as an appropriation, even if it did not entail a physical invasion by the government. This doctrine’s end-state would dramatically expand judicial discretion, work avulsive change to the authority of state and local governments, and (ironically) foster fresh uncertainty about the resolution of inevitable and pervasive boundary disputes that arise in property law.

There is a bigger principle at stake here too. This close reading of Cedar Point further invites reappraisal of the way in which property and the rule of law have been theorized as working together in American constitutional law: Do they really intertwine as tightly as the standard story holds? A starting point for this analytic enterprise is a distinction drawn by the legal theorists H.L.A. Hart and Meir Dan-Cohen. Hart carved law up into “primary” rules applicable to the citizenry at large, and “secondary” rules that bind officials.²¹ 21.H.L.A. Hart, The Concept of Law 99 (Penelope A. Bulloch & Joseph Raz postscript eds., 2d ed. 1994) [hereinafter Hart, Concept of Law] (“The union of primary and secondary rules is at the centre of a legal system . . . .”).Show More Dan-Cohen, reasoning in a similar vein, distinguished “conduct rules” covering everyone, and “decision rules” directed at officials.²² 22.Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 627 (1984).Show More The law, both Hart and Dan-Cohen thereby insisted, speaks in subtly differently accented voices to the public and to its official custodians.

Cedar Point illustrates the possibility that the rule of law can come apart along this seam. The ordinary subjects of property law remain subject to a body of (somewhat more ambiguous) rules after Cedar Point, even as the Court shrugs off the disciplining constraints imposed by legal method. The rule of law can thus be roughly maintained for primary rules of property, even as it dissipates as a constraint upon officials. As such, we can observe what I call “first-order legality” for rules applicable to private persons, without the “second-order legality” usually experienced by officials. This dichotomy, and the resulting internal fracturing, complicates canonical accounts of the rule of law by showing how it is possible for the qualities of certainty, predictability, and stability to be maintained with respect to one domain of the law, but not another. Consequently, legality can be partial. At worst, it can potentially come to be at war with itself.

With this bifurcated account of the rule of law in hand, it is possible to interrogate in a more considered way the supposedly monotonic relationships between legality, arbitrary rule, and the ambition of legality. The rule of law, at least in one of its traditions, is often distilled into an image of rigid, impenetrable property rights.²³ 23.See sources cited supra notes 2–5.Show More These, in turn, are hitched to the aspiration for freedom from arbitrary rule and economic growth. But even as Cedar Point offered an account of property as a cornerstone of the rule of law in precisely these terms, each element of this argument was unraveling. No longer is it clear that centering legality around property minimizes the scope for arbitrary decision making by officials. To the contrary, an account of the rule of law centered around property rights may either increase or decrease the risk of such arbitrary rule without a clear effect on economic growth or social welfare. Legality, when conceptualized in terms of property rights, thus can undermine widely shared normative goals it purports to advance. Their relation is contingent, not necessary.

This Article focuses on the relationship of takings jurisprudence to the rule of law. Existing commentary criticizes Cedar Point’s “hostility to worker power” and “antidemocracy” effects,²⁴ 24.Nikolas Bowie, Comment, Antidemocracy, 135 Harv. L. Rev. 160, 163 (2021). For a similar, if more equivocal, suggestion, see Cristina M. Rodríguez, Foreword: Regime Change, 135 Harv. L. Rev. 2, 32 (2021) (“[T]he Supreme Court’s burgeoning jurisprudence . . . has turned to the Bill of Rights, primarily the First Amendment, to limit social welfare and good-government regulation . . . .”); see also Linda Greenhouse, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court 224 (2021) (describing the case as a “potentially transformational development in the law of property rights . . . likely to hobble government land use regulation”). For a contrary view, see Julia D. Mahoney, Cedar Point Nursery and the End of the New Deal Settlement, 11 Brigham-Kanner Prop. Rts. J. 43, 64 (2022) (arguing that “Cedar Point represents an evolution, not a revolution, in the Court’s property rights jurisprudence” while celebrating the Court’s result and analysis). As it will become clear, I respectfully disagree with Professor Mahoney’s conclusions for reasons spelled out at length in this Article.Show More or alternatively defends its “classical liberal” pedigree.²⁵ 25.Sam Spiegelman & Gregory C. Sisk, Cedar Point: Lockean Property and the Search for a Lost Liberalism, 2020–21 Cato Sup. Ct. Rev. 165, 178–81 (2021) (talking of “the takings muddle”).Show More In contrast, I explore the Court’s new takings doctrine in relation to the ideal of the rule of law.²⁶ 26.Cf. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (“As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’” (citation omitted)).Show More The property/rule of law connection has been previously explored in a set of lectures by Professor Jeremy Waldron. He, however, trains on the relation of Lockean accounts of property to the rule of law though a political philosophy lens.²⁷ 27.Jeremy Waldron, The Rule of Law and the Measure of Property 27 (2012) [hereinafter Waldron, Measure of Property] (doubting that “Locke’s account” of property yields a specific definition of the rule of law).Show More My analysis and conclusions unfold along a different, American-constitutional-law track. Nevertheless, like Waldron, I hope to contribute to larger theoretical debates about the rule of law and its constituent parts.

Part I explores the basic architecture of takings doctrine prior to Cedar Point. Part II then offers a close reading of that decision. I carefully analyze its methodological underpinnings and doctrinal aftermath. Both in its origin and in its reasoning, I demonstrate, the opinion is in sharp tension with legality norms. Part III then broadens the analytic lens to evaluate the role that property plays in understandings of the rule of law. Using Cedar Point as an opening wedge for inquiry, it demonstrates how legality can unravel in ways that foster arbitrary rule and undermine economic growth. Of course, these are precisely the outcomes the rule of law is intended to stave off.

1.  Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in Nomos XXII: Property 3, 5 (J. Roland Pennock & John W. Chapman eds., 1980). ↑
2. The Federalist No. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). ↑
3. James Madison, Property, Nat’l Gazette, Mar. 27, 1792, reprinted in 14 The Papers of James Madison 266, 267 (Robert A. Rutland et al. eds., 1983). ↑
4.  Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (quoting John Adams, Discourses on Davila, in 6 The Works of John Adams 223, 280 (Charles Francis Adams ed., 1851)). ↑
5.  St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, app. at 305–06 (Augustus M. Kelley 1969) (1803); see also Armstrong v. United States, 364 U.S. 40, 49 (1960) (describing the Clause’s aim as preventing the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole”). ↑
6. Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017); Cedar Point, 141 S. Ct. at 2071 (quoting Murr, 137 S. Ct. at 1943); see also Sveen v. Melin, 138 S. Ct. 1815, 1827 (2018) (Gorsuch, J., dissenting) (“Federalists like Madison countered that the rule of law permitted ‘property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.’” (citation omitted)). The same theme is found in academic literature. See Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law 12 (2011) (describing a “close connection” between property’s protection and the rule of law); James W. Ely, Jr., Property Rights and Judicial Activism, 1 Geo. J.L. & Pub. Pol’y 125, 126 (2002) (“The Framers realized that robust protection of the rights of property owners undergirds liberty by diffusing power and protecting individual autonomy from governmental control.”). ↑
7. Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 3 (1997). ↑
8. See, e.g., Lon L. Fuller, The Morality of Law 44 (rev. ed. 1969) (using the phrase “the demands of legality” to capture the rule of law). ↑
9. Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law & Phil. 137, 140–44 (2002) (surveying disputes over its meaning). ↑
10. Fuller, supra note 8, at 39 (listing traits of the rule of law, including clarity and the capacity to be followed). ↑
11. Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); see also Lawrence B. Solum, Equity and the Rule of Law, in Nomos XXXVI: The Rule of Law 120, 121 (Ian Shapiro ed., 1994) (including “generality, publicity, and regularity” among the rule of law’s features). ↑
12.  TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 475 (1993) (O’Connor, J., dissenting). The association of the rule of law with the constraint of official action goes back to a Victorian legal theorist who was one of the early adopters of the term “rule of law.” A.V. Dicey, Introduction to the Study of the Law of the Constitution 181–205 (10th ed. 1959). ↑
13. Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 6 (2008) [hereinafter Waldron, The Concept and the Rule]. ↑
14. Joseph Raz, The Rule of Law and its Virtue, in The Authority of Law: Essays on Law and Morality 210, 224 (1979) [hereinafter Raz, Rule of Law and its Virtue] (“The law inevitably creates a great danger of arbitrary power—the rule of law is designed to minimize the danger created by the law itself.”). ↑
15. The kind of liberty protected by the rule of law is, again, contested and plural. See Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 34–35 (2004) (distinguishing four kinds of freedom protected by the rule of law). The most relevant here are the freedom from unlicensed (and so unpredictable) legal constraint, and the preservation of a zone of personal autonomy. Id. ↑
16. Some accounts go further and suggest that it is the propertied who will have the leisure and the resources to defend rule of laws. Minogue, supra note 1, at 8. ↑
17. See U.S. Const. amend. V (stating that “private property [shall not] be taken for public use, without just compensation”). ↑
18. 141 S. Ct. 2063 (2021). ↑
19. Cal. Code Regs. tit. 8, § 20900(e)(3) (2021); see also Cedar Point, 141 S. Ct. at 2069, 2072 (describing regulatory framework for agricultural labor under California law). ↑
20. See Andrei Marmor, The Rule of Law and Its Limits, 23 Law & Phil. 1, 3 (2004). ↑
21. H.L.A. Hart, The Concept of Law 99 (Penelope A. Bulloch & Joseph Raz postscript eds., 2d ed. 1994) [hereinafter Hart, Concept of Law] (“The union of primary and secondary rules is at the centre of a legal system . . . .”). ↑
22. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 627 (1984). ↑
23. See sources cited supra notes 2–5. ↑
24. Nikolas Bowie, Comment, Antidemocracy, 135 Harv. L. Rev. 160, 163 (2021). For a similar, if more equivocal, suggestion, see Cristina M. Rodríguez, Foreword: Regime Change, 135 Harv. L. Rev. 2, 32 (2021) (“[T]he Supreme Court’s burgeoning jurisprudence . . . has turned to the Bill of Rights, primarily the First Amendment, to limit social welfare and good-government regulation . . . .”); see also Linda Greenhouse, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court 224 (2021) (describing the case as a “potentially transformational development in the law of property rights . . . likely to hobble government land use regulation”). For a contrary view, see Julia D. Mahoney, Cedar Point Nursery and the End of the New Deal Settlement, 11 Brigham-Kanner Prop. Rts. J. 43, 64 (2022) (arguing that “Cedar Point represents an evolution, not a revolution, in the Court’s property rights jurisprudence” while celebrating the Court’s result and analysis). As it will become clear, I respectfully disagree with Professor Mahoney’s conclusions for reasons spelled out at length in this Article. ↑
25. Sam Spiegelman & Gregory C. Sisk, Cedar Point: Lockean Property and the Search for a Lost Liberalism, 2020–21 Cato Sup. Ct. Rev. 165, 178–81 (2021) (talking of “the takings muddle”). ↑
26. Cf. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (“As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’” (citation omitted)). ↑

27. Jeremy Waldron, The Rule of Law and the Measure of Property 27 (2012) [hereinafter Waldron, Measure of Property] (doubting that “Locke’s account” of property yields a specific definition of the rule of law). ↑