Power Of Eminent Domain Research Articles

The economic theory of eminent domain: private property, public use

Surveys the contributions that economic theory has made to the often contentious debate over the government's use of its power of eminent domain, as prescribed by the Fifth Amendment. It addresses such questions as: when should the government be allowed to take private property without the owner's consent? Does it depend on how the land will be used? Also, what amount of compensation is the landowner entitled to receive (if any)? The recent case of Kelo v. New London (2005) revitalized the debate, but it was only the latest skirmish in the ongoing struggle between advocates of strong governmental powers to acquire private property in the public interest and private property rights advocates. Written for a general audience, the book advances a coherent theory that views eminent domain within the context of the government's proper role in an economic system whose primary objective is to achieve efficient land use.

(Ab)Use of Eminent Domain Power and Acquisition of Land for Industrial Development: The Indian Experience

This paper argues that the new definition in the Land Acquisition (Amendment) Bill, 2007 is harmful to the land owners and the same is against public interest, efficiency and to the fundamental right to life and livelihood.

Having Your Cake and Condemning It Too: When Asserting the Power of Eminent Domain Constitutes Breach of an Oil and Gas Lease

The rapid increase in urban drilling for oil and gas in Texas, especially the shale natural gas plays that have become major producers of energy in Texas and other parts of the United States, have created new concerns for surface owners who also own the related minerals. One question is, how can land and mineral owners limit or prohibit surface use while leasing the minerals to producers? The advent of horizontal drilling that permits exploitation of leased minerals from off-site drilling locations prompts this new concern. The following is a scenario that frequently occurs in the current development and production of oil and natural gas, especially where minerals that a landowner leases are associated with a surface that the landowner concurrently uses for residential or commercial purposes.

Of Woodchucks and Prune Yards: A View of Judicial Takings from the Trenches

Eighty-four years after the Supreme Court acknowledged that an exercise of governmental authority other than the eminent domain power could be a taking, it appears the search for what might fit the bill has devolved from “the “lawyer’s equivalent of the physicist’s hunt for the quark” to the riddle of a nursery rhyme. Having now acknowledged Justice Scalia’s reference to one of the most unlikely phrases ever turned in a Supreme Court opinion, we can move on to the more intriguing questions presented by Stop the Beach Renourishment v. Florida Department of Environmental Protection, the case in which the Court came tantalizingly close to answering the most metaphysical of legal issues: can a state supreme court decision “take” property when it changes state property law?The case held out the promise of providing long sought-after guidance about whether a state’s exercise of judicial power is constrained by the Takings Clause, but ultimately fell one vote short. Six justices agreed that in certain circumstances, a state supreme court’s recharacterization of property from private to public would violate the Constitution; the four-justice Scalia-led plurality concluded it would be a Takings Clause problem, while Justice Kennedy, joined by Justice Sotomayor, saw it as involving the legitimacy of the state court’s action – in other words, substantive due process. Justice Breyer, joined by Justice Ginsburg agreed there was no judicial taking in the case, but demurred on expressing any opinion of when there could be. In this essay we will attempt to provide a view of how we see them, focusing first on the Scalia plurality opinion and the PruneYard case, the only other case where the Court has expressly weighed in on the judicial takings question. We conclude with a suggestion of how PruneYard and the plurality opinion in Stop the Beach Renourishment may provide a roadmap for asserting and winning a judicial takings claim.

Recent Developments in Challenging the Right to Take in Eminent Domain

True or false: “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.” Still true, technically speaking: legislative determinations about whether a taking is in the public interest are entitled to a high degree of judicial deference if challenged. But after the U.S. Supreme Court’s decision in Kelo v. City of New London, that phrase no longer means that if the government wants to take property, the courts will simply rubber stamp it. Kelo reinvigorated judicial and public interest in the Public Use requirement of the Fifth Amendment and its counterparts in state constitutions and courts nationwide are more willing to examine the reasons for a taking than ever before. This article summarizes recent developments in litigation challenging the ability of condemning authorities to take property. There were couple of blockbuster cases from New York state courts, and these cases are summarized in Part I, but overall, the developments in the law were incremental. Consequently, this article will focus not only on cases where public use was challenged, but will include in Part II cases where other limitations on the eminent domain power such as delegation and choice of forum were analyzed. Finally, Part III summarizes recent cases involving recovery of attorneys fees for unsuccessful condemnations, an issue which is sure to grow should courts continue to be more willing to invalidate takings.

Eminent Domain versus Government Purchase of Land Given Imperfect Information about Owners’ Valuations

Abstract Governments employ two basic policies for acquiring land: taking it through the exercise of their power of eminent domain, and purchasing it. The social desirability of these policies is compared in a model in which the government’s information about landowners’ valuations is imperfect. Under this assumption, the policy of purchase possesses the market test advantage that the government obtains land from an owner only if its offer exceeds the owner’s valuation. However, the policy suffers from a drawback when the land that the government needs is owned by many parties. In that case, the government’s acquisition will fail if any of the owners refuses to sell. Hence, eminent domain becomes appealing if the number of landowners is large. This conclusion holds regardless of whether the land that the government seeks is a parcel at a fixed location or instead is a contiguous parcel that may be located anywhere in a region.

PRIMITIVE ACCUMULATION, EMINENT DOMAIN, AND THE CONTRADICTIONS OF NEO-LIBERALISM

One of the distinguishing characteristics of neo-liberal capitalism, as Paul Smith has argued, is the prominent role played by primitive accumulation – that is, the process through which social resources currently outside the circuit of capital are expropriated, often by the state, and thrust into circulation. The persistence of primitive forms of accumulation raises an important contradiction between neo-liberal philosophy, which posits a non-interventionist state, and actual-existing neo-liberalism, which relies heavily on the use of state power. But how is this contradiction negotiated through ideological labor? The issue of ‘eminent domain abuse’ – most recently dramatized in the controversy over the Supreme Court's Kelo v. New London decision – provides a good opportunity to explore this question. To this end, this article begins with a brief history of how the power of eminent domain – initially a tool for bringing private property into the public commons – was drafted into the service of primitive capital accumulation. The article then turns to a discussion of how primitive accumulation by eminent domain has been legitimized in two important court cases – Berman v. Parker and, most recently, Kelo v. New London. A concluding section will discuss how the recent controversy over eminent domain not only reveals fissures in the neo-liberal movement but also presents an opportunity to rebuild collective resources plundered by previous histories of primitive accumulation.

Eminent Domain and Pipelines in Texas: It’s as Easy as 1, 2,3- Common Carriers, Gas Utilities, and Gas Corporations

Part II of this comment will provide a brief history of the oil industry in Texas as well as the large impact it has had on Texans up to the present day. Part III will examine the history of eminent domain jurisprudence in Texas, and Part IV will explore how private companies have obtained and used the power of eminent domain to lay pipelines. Part V will demonstrate how the law has affected the residents of Tarrant and neighboring counties living within the Barnett Shale, and Part VI will suggest means for reform in these areas of the law.

Heller's Gridlock Economy in Perspective: Why There is Too Little, Not Too Much, Private Property

This Article critiques Michael Heller’s important contribution in the Gridlock Economy. At no point does it take the position that gridlock, or the associated anticommons, is not a serious issue in the design of a legal system. But it does insist that gridlock is not the major source of social dislocation, or that private ownership is the major source of gridlock. More concretely, the articles examines the other important sources of economic distortion that are unrelated to economic gridlock from private action. These include the use of excessive government subsidies (as with health care), misguided government licenses (as with broadcast licenses); the unwise use of government power to create gridlock situations (as with employment law); the excessive role of government permitting (as with real estate development); and the use of creative private techniques to overcome gridlock (as with patent licensing as a way to combat the patent thicket). Thereafter, the Article explains how traditional common law rules did a better job in controlling for gridlock than many current initiatives, by narrowly defining the class of actionable harms to exclude competitive loss, blocked views, and hurt feelings. It closes with an explanation of how broad definitions of harm slow down decisions in the public sector, thereby impeding the use of the eminent domain power that could otherwise respond to gridlock issues.

Eminent Domain Power Granted to Private Pipeline Companies Meets With Greater Resistance From Property Owners in Urban Rather Than Rural Areas

Heightened drilling activity and pipeline construction in the more densely urbanized parts of the City of Fort Worth has exposed an increasing number of citizens to the condemnation process. Affected citizens have banded together to educate themselves on the eminent domain authority of private entities and have increasingly voiced their opposition to certain condemnation practices by pipeline companies. Pipeline companies have faced heightened resistance from urban citizens to acquiesce to their threats of condemnation. This paper outlines the major issues landowners face in condemnation and addresses legislation and other changes to the legal landscape of condemnation in Texas.

Responding to Kelo v. New London: Avoiding Intrinsic Injustice by Paying a Fairer Price

The reason why some exercises of eminent domain feel so much like theft is that the accepted constitutional definition of just systematically under-compensates certain categories of private owners. These categories particularly include residential owners as well as others who do not hold their property for primarily commercial or investment purposes. In the eyes of these owners, the principal significance of their property is not its commercial asset value as a commodity (or market value) but, rather, its personal and subjective use value. The seller test used to measure constitutional compensation often falls far short of the mark because these residential and other owners are not willing sellers, at least not at prices anything like fair market value. Often, moreover, realistic market conditions make it impossible for these owners to replace what they lose with the money they receive as just compensation. The resulting under-compensation for their real value - subjective use value - naturally results in a painful pinch and public outcry. This short piece proposes a fairer approach to pricing as an alternative to recent procrustean calls to cut down the power of eminent domain. It aim is to offer a more balanced possibility of preserving the salutary features of eminent domain while avoiding its manifest injustices.

Founding Corporate Power in Early National Philadelphia (review)

Reviewed by: Founding Corporate Power in Early National Philadelphia Brian Phillips Murphy (bio) Founding Corporate Power in Early National Philadelphia. By Andrew M. Schocket. (DeKalb: Northern Illinois University Press, 2007. Pp. xvi, 274. Cloth, $42.00.) In an era when corporate executives jet to Washington on private planes to beg Congress for bailout funds, and when careers can be made by pursuing, defending, or following particular companies, it is essential for historians to remind us of the comparatively humble and vulnerable origins of the corporate form in late eighteenth-century America. Corporations are partnerships that enjoy the legal privilege of a fictional personhood, sometimes exercise the power of eminent domain, and can pass property from one generation of elected directors to the next. They can be efficient, or not; politically influential, or not; well regulated, or not. Corporations are many things, but they are managed by mortals and conjured by charter rather than magic. As early Americanists reincorporate institutions and the state into the historical narrative, Andrew Schocket’s Founding Corporate Power in Early National Philadelphia makes a valuable contribution by placing a specific set of corporations in an integrated economic, geographic, and political context. The author’s chapters are cleverly structured as a series of case studies examining the emergence of incorporated banking in Philadelphia (3), the development of a municipal waterworks in the city (4), and the construction of a canal in the suburban hinterland (5). Schocket’s analysis shines in these latter two chapters, merging his deep primary source research in Philadelphia-area archives with an appreciation for the historiographical legacies of George Rogers Taylor, Carter Goodrich, Louis Hartz, and Charles Sellers.1 Schocket knows his subjects well enough to recognize that historians who partition transportation initiatives, politics, and market relations are missing a bigger picture; these subjects are interdependent, as he masterfully illustrates. Discussing the “complexities of municipal finance” in the period, [End Page 377] Schocket shows how Philadelphia officials funded the nation’s first waterworks by selling bonds and making interest payments through use of a city-established sinking fund—a separate pool of money specifically designated for bondholders’ interest. By assuring buyers that municipal bonds were a safe investment, the city increased its debt capacity to fund infrastructure investments, which ignited broader economic development; bondholders demanded neither “efficiency” nor “even competence,” just interest payments every six months. Thus, as the city grew, its debt grew, and the effect was to concentrate capital and economic opportunity in Philadelphia even as the city lost its edge as the nation’s financial and political capital to New York and Washington, DC, respectively. The Philadelphia Waterworks gave a “corporate community” an “extended reach” that stretched from the city to the suburbs and was further empowered by “internal navigations . . . far beyond metropolitan limits” (137). When recalling the story of the 108-mile Schuylkill Navigation Company canal, nearly completed by 1825 after a long bout of construction funding hiccups, Schocket credits the navigation’s success to anthracite coal mining. Coal shipped on the canal helped create the country’s “first heavy industry” and set off an “economic explosion” in the Schuylkill River Valley (151, 150). The canal was a “nexus” that channeled economic development to the region and empowered incorporated canal promoters to set tolls and usage fees for particular customers or goods (151, 152). Schocket compellingly describes the economic geography of coal and canals, an implicit nod to Sean Patrick Adams’s study of antebellum anthracite, and appreciates the political power wielded by canal directors who regulated the region’s commercial artery.2 Corporations are political, Schocket repeatedly argues, providing a necessary corrective to a historiography of banking and incorporation that in recent decades steered away from Bray Hammond’s sensitivity for partisanship and toward more economic-focused studies such as those of Alfred Chandler and Howard Bodenhorn.3 That said, the weakest points in this book are when Schocket attempts to paint corporate board [End Page 378] members as a “corporate class.” To be sure, the consistency of a few names among directors and shareholders provides ample evidence for the argument that there was indeed an “economic elite” who “profited disproportionately from . . . regional economic integration” in this period...

Do Broader Eminent Domain Powers Increase Government Size?

The 2005 U.S. Supreme Court decision Kelo v New London allows using eminent domain to transfer property from one private party to another when it serves a broadly defined public purpose such as economic development. This paper examines the effect of this doctrine on the size of state and local governments. In the leviathan model, constitutional constraints are needed to control government expansion. The Kelo decision removes one such constitutional constraint on how state and local governments gain command over privately owned resources. The empirical results show that the breadth of eminent domain power affects the size of the public sector; states that explicitly empower their local governments to use eminent domain for private economic development have larger state and local public sectors than those that do not.

Is the Right to Private Property a Fundamental or an Economic Right?

Our common law history and the provisions of the U.S. Constitution strongly suggest that private property rights are fundamental rights. As such, some sort of deep and broad societal consensus would seem to be required for change in the character of this fundamental right, and it is necessary and proper that the impositions on those rights that we permit to be exercised by the sovereign power residing in the people be strictly limited.This article defines fundamental and economic rights, looks at their differences, and examines whether eminent domain power is a fundamental right. A brief legal history of Anglo-American private property law is given, covering ancient Britain, Roman Britain, Anglo-Saxon England, England after the Norman Conquest and during the Middle Ages, and in the British North American colonies. This history shows that private property rights were considered as fundamental, even foundational, elements of the common law and by the founders of the U.S. Constitution. Four contemporary threats to the fundamental nature of private property rights are then highlighted, in the areas of eminent domain, regulatory takings, public trust doctrine, and discrimination laws. The author concludes with examples of the difference it would make - and the need for this difference - in these areas to treat private property rights as fundamental rights.

Public Use in a Post-KeloWorld

The aftermath of Kelo gives rise to urgent land use issues, both theoretical and historical. On the former, I argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and local governments’ willingness to condemn parcels for private development on the other. The inability to overcome local opposition to private development forces developers to get, in essence, pre-acquisition approval through public condemnation. One way, therefore, to ease the pressure on public use is to retreat from aggressive land use regulation to a scheme that more closely approximates that of the common law rules on nuisance and restrictive covenants. However, this outcome will be hard to achieve since local systems of voting give little weight to the interest of potential buyers who live outside the governance area. Historically, this opportunity was lost when the United States Supreme Court in Berman v. Parker distanced itself from the thoughtful decision of Judge Prettyman below in Schneider v. District of Columbia, which sought to cabin in the ends for which the eminent domain power could be used, even if it gave too much deference to local governments on any means/ends connections.

A Positive Theory of Eminent Domain

By examining a novel data set of land acquisitions and condemnations for roads by all 50 states, this article attempts to formulate a positive theory of states' invocation of their eminent domain power. Litigation models based on irrationality and asymmetric information suggest that geography, demography, and legal rules may influence the frequency with which state officials resort to condemnation. To a significant degree, the data support these models, as water area and hilliness (geography), population density (demography), and legal rules (fee-shifting statutes) explain a significant portion of the state-state variation in condemnation rates. A number of other theoretically relevant explanatory variables do not seem to influence the level of eminent domain in a state (length of coastline, unusual constitutional takings provisions, political party in power, population growth rate, and economic growth rate). Finally we consider the difference between the model's predicted condemnation rate and the rate reported by each state. Some states can justify their seemingly high condemnation rates based on their geography and demography (e.g. Rhode Island's high condemnation rate is largely explained by it population density and large water area); some missing explanatory variables seem necessary to explain those states for which there are large residuals (e.g. Florida's large positive residual; Delaware's large negative residual).

The injustice and reconstruction of procedures in eminent domain and land acquisition

Eminent domain should be regulated, the key to which is procedural restraints. Initiating procedure can organize, adjust, and setup a system of due process for claiming land acquisition, which serves to facilitate bargaining for an objective price. Since the exclusivity of property rights is affected by eminent domain power, applying transaction rules in the market to assess the fairness of the compensation is difficult. Currently, the procedural injustice is the key to the abuse of eminent domain powers, and the procedural deviation reflecting in laws and guarantees are either too vague or absent. Thus it is proposed that an institutional reform should include procedural openness, liability for procedural errors and disposition of judicial review in advance, with the aim to guarantee the legitimacy, effect, and security of land acquisition.

Kelo

Cities spend billions of dollars to build or expand convention centers (Sanders, 2005). To cities with ailing downtowns, the lure of the convention business has long been something coveted by local politicians as a means to rejuvenate these markets. Now local governments wishing to expand their convention business by rejuvinating an ailing downtown market, and thus making their citiy more attractive to convention planners, may have another weapon in their arsenal in the form of “public use” under government's eminent domain power.

Losing My Religion: Eminent Domain, Open Space, and the RLUIPA

Is a local government's power of eminent domain limited by the Religious Land Use and Institutionalized Persons Act (RLUIPA)? Courts in three different jurisdictions have held that the statutory coverage of RLUIPA is clear and unambiguous: eminent domain and zoning are two distinct concepts, and therefore, municipalities conferred with the power of eminent domain do not violate the RLUIPA if the takings are for a public use. Faith Temple Church v. Town of Brighton, 405 F.Supp.2d 250 (W.D.N.Y. 2005); St. John's United Church of Christ v. City of Chicago, 401 F.Supp.2d 887 (N.D.Ill. 2005), 2007 U.S. App. LEXIS 21914 (7th Cir. 2007); City and County of Honolulu v. Sherman, 129 P.3d 542, 547 (Haw. 2006). A new case now pending before the United States District Court of the District of New Jersey, Albanian Associated Fund v. Township of Wayne (Case No.: 2:06-cv-3217), promises to have wider implications than previously decided cases. In a motion for summary judgment, the Albanian court has suggested that eminent domain is outside the scope of RLUIPA, but a taking pursuant to an open space plan is subject to the land use provisions of RLUIPA. This case is also complicated by the recent New Jersey Appellate Court and the New Jersey Supreme Court decisions in Mount Laurel Township v. Mipro Homes, LLC., 878 A.2d 38 (2005), 910 A.2d 617 (2006), which held that a municipality has the authority to exercise eminent domain for open space preservation, regardless of its true motives. Land use law practitioners and scholars are encouraged to pay close attention to this case as it develops.

Eminent Domain versus Government Purchase of Land Given Imperfect Information about Owners' Valuations

Governments employ two basic policies for acquiring land: taking it through exercise of their power of eminent domain; and purchasing it. The social desirability of these two policies is compared in a model in which the government's information about landowners' valuations is imperfect. Under this assumption, the policy of purchase possesses the market test advantage that the government obtains land only if an owner's valuation is low enough that he is willing to sell it. However, the policy suffers from a drawback when the land that the government needs is owned by many parties. In that case, the government's acquisition will fail if any of the owners refuses to sell. Hence, the policy of eminent domain becomes appealing if the number of owners of the land is large. This conclusion holds regardless of whether the land that the government seeks is a parcel at a fixed location or instead may be located anywhere in a region.