Last Friday, we had the good fortune to moderate a debate between two scholars — F.E. Guerra-Pujol and Ilya Somin — on the question of takings and emergencies (“COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?“). This issue has resulted in a flurry of claims nationwide. See here, here, here, here, here, here, here, here, here and here, for example)
Note: the recording of that session will be available and when ready, we’ll post it here.
Professor Guerra-Pujol has also written up some post-session thoughts on his blog, prior probablity. In “Property rights panel: a recap,” he summarizes his thoughts and those of Professor Somin.
Rather than summarize his summary, we simply suggest you visit his blog and read it (it’s a quick read).
The entire discussion got us to thinking. Mostly that the general lack of doctrinal coherence in takings law may — if we’re not careful — result in a lot of bad law coming out of these cases. A good time to make bad law. There’s a lot of opportunity for judicial mischief in the upcoming times, as courts process these cases. Many, I suspect will employ the wrong standards. I’m thinking that like Professor Somin, the vastly imperfect Penn Central test is the standard that is going to be applied to most of these cases .But where I diverge from his analysis is that I don’t think that there is (more accurately: don’t think there should be) an exception in the way these cases get analyzed when the property itself is claimed to be a threat to the public health.
On that, I agree more with Professor Guerra-Pujol’s thinking on necessity. In other words, the degree of the threat is not part of the takings calculus itself, but is a separate inquiry in the nature of an affirmative defense. Maybe that doesn’t get us any further along the path to clearer predictions of how these type of cases will work out, or maybe that’s just a backhanded critique of Penn Central itself.
What animates me is that the already-low rational basis / Public Use standard of Lingle and Kelo that courts would apply to the government’s motivation or claim of necessity if the nature of the emergency were simply a part of the takings test, and not an affirmative defense. I’m predicting that the rational basis standard would simply swallow up all takings. After all, if in a takings analysis, the question of the necessity and “tailoring” of the government’s response to an emergency is simply subject to the rational basis test, then what is left for any court to do but deny compensation in every case? In other words, how much lower can the low bar of rational basis go?
Finally, we wrote down our thoughts on these type of claims in this piece: “Evaluating Emergency Takings: Flattening The Economic Curve.” See what you think.
Stay tuned, if this subject interests you. Professor Guerra-Pujol has posted cleaned-up versions of the questions I posed as the moderator to the speakers, and he promises an upcoming post to respond to them. See Property rights panel: four questions.