A new must-read from lawprofs Lee Anne Fennell (Chicago) and Timothy Mulvaney (Tex. A&M) in the Yale Law Journal, “The Exactions Illusion: Sheetz’s Missing Dissent,” 135 Yale L.J. 1143 (2026).
Now don’t get us wrong: we’re no offering this as a “must-read” because we agree with or endorse the article’s content and premise, but because we think the content and premise are subject to challenge. When two highly-respected scholars of property, takings, and constitutional law make an intriguing argument (but one we may disagree with nonetheless), we just have to post it and urge you to read and decide for yourself.
Their premise is that in Sheetz v. County of El Dorado, the U.S. Supreme Court was “tricked” (their word, not ours!) into accepting the narrow unconstitutional conditions doctrine and expanding it to legislation. [Now before we go further, a disclosure: Sheetz was one of ours, so we definitely have a dog in this hunt.]
Here’s the Abstract:
In April 2024, the Supreme Court unanimously handed down Sheetz v. County of El Dorado, a land use exactions case billed as narrow, inevitable, constitutionally compelled, and obviously correct. It was none of those things. Sheetz instead ushered in an open-ended shift of policy control over the built environment from state and local legislatures to courts. By its terms, the holding extended the Court’s stringent “exactions” test—which requires the government to prove nexus and proportionality between development conditions and development impacts—beyond its original context of parcel-specific administrative bargains to reach an unspecified set of legislated property conditions. Yet the decision’s sweeping reasoning offers no stopping point for this inversion of judicial deference to legislative judgment calls. Sheetz thus opened the door to intensified judicial scrutiny of a wide range of generally applicable legislation without engaging any of the constitutional or institutional questions relevant to such a move—and, remarkably, without encountering any pushback.
We supply the missing pushback here. We suggest that the sense of inevitability driving the decision was an illusion produced and sustained through tricks of misdirected attention: deftly swapping in an invented special-purpose test for a universal constitutional directive, replacing the question addressed by the court below with one that obscured the institutional considerations at stake, scrambling the moving parts in the exactions analysis, and occluding sightlines to the established doctrinal guideposts that have long demarcated the purposes and limits of the Takings Clause. By exposing Sheetz’s sleight of hand, we show how an exactions doctrine unmoored from its purported constitutional source materials accomplished a stark judicial reallocation of policymaking power across levels and branches of government.
A couple of thoughts. First, the Sheetz decision was unanimous. You might be able to fool a Supreme Court Justice (or two) or even a majority of the Court. But all of ’em? Not bloody likely! Second, our read of the opinions is that yes, the Court well understood what was going on and the fight wasn’t so much about whether legislatively-imposed exactions were exempt from the nexus and rough proportionality standards (since every Justice said no, they are not), but about how those standards apply in such cases.
If so, the Court wasn’t so much hoodwinked as it was preparing the battlefield for a future fight. (And in a great timing coincidence, just yesterday we filed the cert petition in Sheetz II, which addresses some of those issues. The Court has called for a response in that case, so stay tuned.