The Coronavirus Pandemic Shutdown and Distributive Justice: Why Courts Should Refocus the Fifth Amendment Takings Analysis

41 Pages Posted: 9 Jun 2020 Last revised: 18 May 2021

See all articles by Timothy Harris

Timothy Harris

Seattle University School of Law

Date Written: June 4, 2020

Abstract

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.

Keywords: takings, eminent domain, property rights

JEL Classification: k11

Suggested Citation

Harris, Timothy, The Coronavirus Pandemic Shutdown and Distributive Justice: Why Courts Should Refocus the Fifth Amendment Takings Analysis (June 4, 2020). 54 Loy. L.A. L. Rev. 455 (2021), Available at SSRN: https://ssrn.com/abstract=3619553 or http://dx.doi.org/10.2139/ssrn.3619553

Timothy Harris (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States

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