In June 2022 in Glow in One Mini Golf v. Walz, the U.S. Court of Appeals for the Eighth Circuit joined at least three other circuits in concluding that expired state laws imposed in 2020 to stop or slow the spread of COVID-19 are not “capable of repetition but evading review,” thereby 8th Circuit Spotlightending appeals challenging their constitutionality. But the most significant part of the decision may be a paragraph of dicta that could have dire consequences for plaintiffs hoping to seek just compensation in federal courts for alleged takings by states.

In the first two years of the pandemic, some states issued extraordinary limitations on which types of businesses could continue operations, and in what circumstances. Some were challenged quickly. Aside from challenges asserting religious freedoms adjudicated after Justice Barrett’s arrival in October 2020, most such suits failed in the district courts. Some of those plaintiffs then appealed. Those cases slowly made their way to oral argument and appellate rulings—but after the restrictions had been lifted. But with the prospect of new variants prompting new spikes and thus a new wave of restrictions, does that possibility enable federal appellate courts to reach the merits of otherwise-moot challenges to former restrictions?

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