Rolling the Dice: Determining Public Use in Order to Effectuate a 'Public-Private Taking' - A Proposal to Redefine 'Public Use'

Abstract

The Public Use Clause of the Fifth Amendment has come under increasing constitutional fire in recent years. Furthermore, the government's allowable use of its eminent domain power has also expanded, particularly in the context of economic redevelopment projects. A growing debate has developed regarding the limitations the clause places on the government's ability to use its eminent domain power. Recent United States Supreme Court decisions, in conjunction with decisions from various state courts, have expanded the scope of the public use clause to allow for the use of eminent domain in private developments. This article focuses on the use of eminent domain for these so called public-private takings. This article begins by exploring the historical development of the eminent domain power and the public use requirement. The article then examines the current constitutional framework of the Public Use Clause. Issue is taken with the current analysis and the conclusion is reached that the existing takings scheme leads to economic inefficiency. Specifically, the use of eminent domain to execute a public private taking imposes significant welfare costs on society and can lead to interest group capture of a government's eminent domain power. The article concludes by offering an alternative analysis framework in order to determine public use in the context of economic redevelopment projects. The goal of the proposed framework is to create a stringent criteria in order to eliminate welfare costs and the threat of interest group capture.