Timothy Harris (Seattle U.) has posted his forthcoming article (Loyola L.A. L. Rev.) about takings and coronavirus shut downs. Well worth a read, and adds to the growing list of scholarly inquiry into the question, which includes Prof. Shai Stern's "Pandemic Takings: Compensating for Public Health Emergency Regulation," and our own "Evaluating Emergency Takings: Flattening The Economic Curve.
Here's the abstract of Prof. Harris' article:
The 2020 Coronavirus Pandemic and the ensuing shutdown of private businesses -- to promote the public’s health and safety -- demonstrated the wide reach of state and local governments’ police power. Many businesses closed and many went bankrupt as various government programs failed to keep their enterprises afloat.These businesses were shut down to further the national interest in stemming a global pandemic. This is an archetypal example of regulating for the public health – preventing a direct threat that sickened hundreds of thousands of Americans. But some businesses were disproportionately hit while others flourished. Many who bore the brunt of these regulations sued, alleging their property was taken by the government without just compensation. These unfortunate businesses and individuals are unlikely to be successful, absent arbitrary action by the government or egregious circumstances.
The takings clause is therefore woefully inadequate to provide what Aristotle called “distributive justice” – the equal distribution of benefits and burdens throughout society. Courts should therefore refocus the takings analysis to ensure fairness and justice.
