Showdown at Cedar Point: “Sole and Despotic Dominion” Gains Ground

Abstract

Blackstone famously declared: “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” That seems to be so, if not for all “mankind,” then at least for the current majority of the Supreme Court. In the modern era, the deregulatory impact of property rights and takings law has been blunted by the dominant role of ad hoc balancing. Advocates, scholars, and judges seeking to sharpen the takings challenge to regulation have thus focused their efforts on creating and expanding “per se rules” that circumvent the default regime of balancing. So perhaps it should be no surprise that the first major takings case decided by the lopsidedly conservative Supreme Court that took the bench in 2020 produced a resounding victory for private property