Rethinking the Role of Judicial Scrutiny in Eminent Domain

Abstract

Abstract The use of eminent domain has increased substantially over the past 50 years. With that expansion has come a growing tendency for courts to defer to state and local government interpretations of the Fifth Amendment's public use requirement. A considerable body of criticism has developed around the trend. We argue that governments need heightened judicial scrutiny to avoid inappropriate and inequitable use of eminent domain powers. In this paper we review a set of models for judicial review and suggest the implications of each for eminent domain decisions. We posit an additional model, incorporating consideration of the purpose, procedure, effect, and compensation associated with a taking. We examine the implications of the model in light of earlier eminent domain cases, and discuss the impact of eminent domain actions on private property. We give general recommendations for policy makers and planners involved in eminent domain actions.