Our shut-in time has got us to thinking.
We’re all environmentalists now. This is the precautionary principle writ large. In a way, this is only part of a greater problem.
Welcome to the Twitterverse. We now have access to a vast amount of data — very often on a granular level — and this moves faster than the ability
Americans like to work
Americans are pretty wiling to give our elected leaders a lot of slack
playground Constitution has serious legs
Most don’t understand that their rights are, in normal time, highly restricted, at least in courts
takings lawyers are not really surprised as everyone else – we’re used to courts deferring to what may look like excessive and unwarranted assertions of governmental power. Unlike a lot of other litigation involving the government, representing property owners in eminent domain or takings cases
basic takings doctrine is really incoherent
we already knew you have rights, but curtailed playground constitution
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.