ABSTRACT
The COVID-19 pandemic led all states to issue regulations aiming to limit the spread of the coronavirus and reduce morbidity and mortality. Alongside the impediments that the “stay at home” and social distancing regulations imposed on citizens’ freedom of movement, worship, and leisure, they also interfered, sometimes significantly, with owners’ property rights. Most states ordered closure of non-essential businesses; some prohibited or suspended evictions of residential and commercial rentals, and others restricted beach access, preventing beachfront owners from using their property. The COVID-19 regulations’ harmful economic effects led owners from states all across the country to bring legal challenges to these regulations. Among other claims, owners argued that the regulations violated the Fifth Amendment to the United States Constitution, because the regulations constituted a taking of private property for public use without the payment of just compensation.

This article argues that although current takings jurisprudence may pose considerable legal challenges for property owners, establishing owners’ Fifth Amendment claims for compensation for the economic damages resulting from the COVID-19 regulations is not at all unfounded. While regulating property in emergencies is often considered within the state police power, thus relieving the government from paying compensation to owners, there may be circumstances where emergency property regulation would constitute a takings, requiring the government to compensate owners. To further this argument, the article proposes a theory that allows lawmakers and courts to better distinguish between the state’s police power and its eminent domain power. The proposed theory suggests that although the state’s police power is designed to allow the government to regulate property to respond to emergencies efficiently and effectively, such regulation may nevertheless exceed the state police power if it imposes a disproportionate burden on property owners. In such cases, takings claims may become the most significant means by which property owners can cope with emergency property regulation.

Citation:
Stern, Shai, Pandemic Takings: Compensating for Public Health Emergency Regulation (June 21, 2020). Bar Ilan University Faculty of Law Research Paper No. 20-10, Available at SSRN: https://ssrn.com/abstract=3632203 or http://dx.doi.org/10.2139/ssrn.3632203

Note: This is a draft – please do not circulate or cite without permission of the author.

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Shai Stern

Bar-Ilan University

Shai Stern is an associate professor of law at the Bar Ilan University Law School. Shai’s primary research and teaching interests include the philosophical foundations of private law, especially property, and the effects of regulatory and other legal mechanisms on the socio-spatial distribution of social and economic burdens in society. His other areas of interests are communities and their role within law (in particular, religious, cultural and geographic communities). Shai serves as Bar Ilan Law School's Director of Int'l Programs.

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