Tag: Takings

Labor Law and ‘Takings’ Clause Collide

 

Last week the Supreme Court heard oral argument in the highly contentious case of Cedar Point Nursery v. Hassid. The case lies at the troubled junction of labor and takings law, which operate from fundamentally different premises.

In this instance, state regulations under the California Agricultural Labor Relations Act of 1975 (CALRA) provide that “an agricultural employer’s property shall be available to any one labor organization for no more than four (4) thirty-day periods in any calendar year.” The period of access covers one hour before work, one hour after work, and one hour during lunch for employees to “meet and talk” about union representation.

In this case, however, the United Farm Workers (UFW) entered Cedar Point’s trim sheds one morning at 6 a.m. using bullhorns, during work hours, thereby disrupting the employer’s business operations. That simple action gives rise to two very different claims. The first, and more modest, claim is that the UFW engaged in an unfair labor act under CALRA by going beyond its regulation. The second is that the CALRA itself is unconstitutional. Any trespass onto the employer’s property, which the regulation explicitly authorizes, constitutes a taking of private property, Cedar Point argues, in violation of the Fifth Amendment that provides “nor shall private property be taken for public use without just compensation.”

Richard Epstein on Classical Liberalism, the Administrative State, Free Speech, and Silicon Valley Regulation

 

For this week’s Big Ideas with Ben Weingarten podcast, I had legendary classical liberal legal theorist and longtime professor at University of Chicago Law School and now at NYU Law — and prodigious Ricochet podcaster Professor Richard Epstein on the podcast to discuss among other things:

  • The role that Professor Epstein’s famous book, “Takings” played in Justice Clarence Thomas’ confirmation hearing — and then-Senator Joe Biden’s hectoring
  • Professor Epstein’s groundbreaking theories on private property rights, eminent domain and the Takings and Commerce Clauses
  • The practical argument against progressivism
  • Whether we should deconstruct the administrative state, and if so how to do it
  • The danger to free speech emanating from college campuses in a world of microaggressions, trigger warnings, de-platforming
  • The folly of regulating Silicon Valley social media companies
  • Classical liberalism versus socialism and libertarianism

You can find the episode on iTunes, everywhere else podcasts are found or download the episode directly here.

The Preservationist Instinct Run Amok

 

shutterstock_105789410This year, the New York City Landmark Preservation Commission is celebrating its fiftieth anniversary. While the law that originally created the Commission was well-intended, the current rules under which the Commission operates regulate everything from the process by which landmarks are designated to the extensive restrictions on the ability of their owners to make any exterior or interior changes in their structures, down to the last ventilation duct, awning, window opening, and fire escape. The simplest way to think about landmark designation is that it puts the city in the position of part owner of the affected buildings, which then lets it decide how these buildings are maintained and altered, without having to bear anything close to the full financial burden of its decisions. As I note in my new column for Defining Ideas, the result is a deluge of government meddling in what surely ought to be private decisions. From the piece:

Rest assured that the behavior of landmark commissions and landmark preservationists alike would change rapidly if they had to raise public or private money to fund their prized projects. At this point preservationists, like everyone else, would have to learn to live within a budget, at which point they would moderate their demands so that only the best projects would be landmarked, and only in a way which minimizes the financial burdens to their owners.

…The key to any sensible reform is to put all the government claims on budget, so that the public can deliberate sensibly about how much should be spent on landmark preservation and which projects should be selected for their the aesthetic and civic virtues.