A Recipe for Disaster: How Plaintiffs Seeking Compensation for Takings Following Natural Disasters Are Unfairly Burdened

Comment by Olivia J. Sher

Inspired by legal developments following Hurricane Harvey, this Comment examines the plight of individuals whose land is taken by the government's exercise of eminent domain for the purpose of disaster relief and mitigation.  

This Comment argues that current federal takings jurisprudence places an unfair burden on property owners whose property is destroyed by government action taken in response to a natural disaster.  The current jurisprudentially created burden forces affected property owners to individually shoulder a cost that the Takings Clause was designed to split among the public as a whole.   In particular, the Comment discusses three reasons why current Takings Clause jurisprudence unfairly burdens property owners: (1) the plain text of the Takings Clause does not allow the government to take private property without providing just compensation, even in times of necessity; (2) by forcing a single landowner to shoulder the financial burden of a taking that is undoubtedly for the public’s benefit, the government frustrates the purpose of the Takings Clause; and (3) significant evidentiary hurdles make it exceedingly difficult for a natural disaster plaintiff to prove a takings claim. 

About the Author

Olivia J. Sher: J.D. candidate 2019, Tulane University Law School; B.A. 2013, Colby College.


93 Tul. L. Rev. 419 (2018)