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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. [ABSTRACT FROM AUTHOR]

Three concerns are inherent to the power of eminent domain -- when a government forcibly takes away private property to provide a social good: abuse of this power, unfair distribution of burdens among members of society, and inefficient implementation of the government project. To protect against these undesirable outcomes, expropriation laws in most Western jurisdictions incorporate three safeguards: due process, a public use requirement, and mandatory compensation. While jurisdictions implement these safeguards in different ways, most demand their implementation as a prerequisite for legitimate expropriation. Arguably, the purpose of allowing governments to expropriate private property is to provide for important societal needs. But this conflicts with the idea that the government ought to perfectly adhere to the three aforementioned safeguards at all times. Imperfect circumstances, such as times of crisis, likely require governments to provide for the needs of their citizens, but afford insufficient time for standard due process. Imperfect implementation of the three safeguards may also be necessary when authorities struggle with budgetary limitations that prevent full compensation, or when they are unable to meet a social need without the involvement of private entities. In all these imperfect circumstances, at least one of the safeguards might be compromised if the government is to provide required social needs through expropriation. This Article proposes a novel model to conceptualize eminent domain, which identifies an interplay among expropriation laws ' three safeguards. It further recognizes that each of these safeguards protects, to some extent, against all three of the potential dangers inherent in government's expropriation power. This innovative interplay model legitimizes compromise, such that it is appropriate for there to be only partial implementation of one safeguard as long as the other two are strictly applied. The interplay model proposed in this Article, therefore, allows the government to exercise its expropriation power properly even in imperfect circumstances, while still sufficiently protecting property owners and society from abuse of that power. [ABSTRACT FROM AUTHOR]

Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest for justice in expropriations reveals a muddled dialogue in which divergent justifications pull one towards different normative and positive conclusions. Currently, expropriation doctrine purports to incorporate a sense of fair dealings with those who become victim to legal devices such as eminent domain. However, based on current case law, the reality of expropriation laws fails to reflect any true practice of justice.This Article suggests a conceptual change in expropriation laws’ remedial scheme by embracing restorative justice as the underlying concept of what constitutes justice in expropriation law. By establishing expropriation law on a restorative conception of justice, a coherent framework will emerge that is circumstances attentive and will provide practical instruments to overcome some of current law’s most significant challenges. This opens a new venue for both expropriation law and restorative justice. Equally important, the Article provides a novel opportunity to consider restorative justice beyond the borders of criminal law. [ABSTRACT FROM PUBLISHER]

This Article challenges the preference in takings law for remedial simplicity over remedial justice, and demonstrates why this preference--which is manifested by the application of a universal compensation standard--fails to fulfill the constitutional requirement of "just compensation." This failure exists at both the normative and positive levels. In a normative sense, the universal compensation mechanism is inadequate because it ignores important differences among owners, among types of property, and in the consequences of expropriation. Consequently, current takings law is at odds with the pluralistic nature of property ownership. In a positive sense, takings law is ill-equipped to assess the actual loss incurred by owners whose property is taken. Courts apply a universal compensation standard--the fair market value of the taken property--which makes compensation exclusively dependent on the market, imports the failures of the market to state action, ignores nonmarket values and losses incurred by owners, and excludes market values that are not directly linked with the property's price. This Article does not argue that we must sacrifice simplicity in the law for the sake of justice, but suggests that we can have them both. By expanding the range of remedies available to owners subject to expropriation, this Article offers a normative rule-based remedial scheme in takings law. To avoid ad hoc adjudication and practical assessment difficulties, this Article proposes categorization of the different prototype failures that characterize current law. Each prototype category requires [ABSTRACT FROM AUTHOR]