Power Of Eminent Domain Research Articles

Public Sector Land Banking: A Decision Model for Local Governments

Local governments frequently face land banking decisions concerning real properties that they may acquire now in open market transactions or later via their power of eminent domain. After construction of a practical local government land banking example, a theoretically correct cash flow and cost‐benefit analysis is presented. Then a buy‐now or buy‐later decision model is developed explaining when to exercise the free American Call Option provided to governments through their power of eminent domain.

Hotelling's Theory, Enhancement, and the Taking of the Redwood National Park

AbstractThe United States has used its power of eminent domain to take a considerable fraction of all remaining old‐growth redwood for inclusion in the Redwood National Park. Hotelling's theory implies that the price of redwood remaining in private hands should have increased. In this paper we provide an estimate of how much the taking increased the price of redwood as well as a test of the underlying Hotelling theory.

Haggling for a patent: what a government would have to pay for prescription drug patents.

In previous papers (Guell, R. and Fischbaum, M. The Milbank Quarterly 1995; 73: 2 and Applied Economics letters in press), we established that the allocative inefficiency in the prescription drug industry is so pervasive that some remedy is warranted. In the first paper, we estimated a lower bound on this inefficiency at approximately $3 billion, with an upper bound of approximately $30 billion; all on total industry sales of approximately $50 billion. In the second paper, on a narrower set of drugs for which sales were $8 billion, we more precisely estimated this dead weight loss to be $5 billion. From this we showed that a system could exist whereby a government would purchase a drug patent from a willing seller, freely distribute it and reap significant efficiency benefits. In those papers we considered the possibility that the innovating firm would not want to relinquish the patent, but we assumed that they would be indifferent between being paid the expected net present value of future monopoly profits and reaping those uncertain profits over time. While that may be the case, a more likely scenario would be that a negotiation would take place. In the current paper I show the bargaining range that would exist under different risk preference assumptions and show that this range widens as each side becomes more risk averse and narrows if the government threatens to use its power of eminent domain. Lastly, I acknowledge the risk of firms "capturing' the government agents doing the negotiation. To conclude, I present the circumstances under which the proposed agency would likely improve societal welfare and contrast that with the circumstances where the presently inefficient system would be made more so by government intervention.

Preaching to the Choir

At a time when many of the most important institutions of government administration under intellectual and political attack,1 Richard Epstein's Simple Rules for a Complex World attempts suggest a plausible alternative the modern regulatory state. Epstein comes this project with a wideranging knowledge of the law and a demonstrated ability focus on the broadest perspective. A nationally known torts scholar,2 he is also the author of Takings: Private Property and the Power of Eminent Domain? which seeks provide a comprehensive theory of the Takings Clause.4 In his latest, more ambitious, book, Epstein envisions an entire legal system transformed reflect the value of simplicity. At the core of Epstein's proposal to edge back toward the state of nature (p. 36) seven simple largely based on the common law. These rules, he advises the popular audience which this work is directed (p. ix), offer solutions all but five ten percent of the possible problems a legal system might confront (p. 53) and go a long way toward establishing a stable legal order largely impervious variations . . . within and across societies (p. 112). They heavily depend on the conviction that cooperative ventures and legal arrangements are better left private ordering than public control (p. xi).

The Fuller Court and Takings Jurisprudence

The Fuller Court and Takings Jurisprudence Janies W. Ely, Jr. The Supreme Court under Chief Justice Melville W. Fuller gained a deserved reputation as a champion of economic liberty.1 Most historians have focused on the Court’s scrutiny of regulatory legislation under the Due Process Clause, demonstrated by such landmark rulings as Lochner v. New York.2 Yet the Fuller Court made an equally important and more lasting contribution to the evolution of jurisprudence under the Takings Clause of the Fifth Amendment.3 With the Supreme Court today showing renewed interest in the Takings Clause as a shield for the rights of individual property owners,4persons interested in understanding the takings issue might find it profitable to examine the work of Fuller and his colleagues in dealing with this contested area oflaw. Before 1890 the Supreme Court heard only a handful of cases that turned upon the Takings Clause. Underthe ruling in Barron v. Baltimore,5 the Fifth Amendment was binding only on the federal government. The federal government instituted relatively few projects that necessitated taking private property, and consequently the Supreme Court had little opportunity to consider the meaning of the Takings Clause. The states therefore took the lead in fashioning eminent domain law under state constitutional provisions. Antebellum state legislatures saw eminent domain as a vehicle for economic development. They widely conferred eminent domain authority on private corporations for the purpose of constructing canals and railroads. State courts not only upheld such delegations, but initially tended to construe the concept of a “taking” as well as the requirement for “just compensation” narrowly.6 Toward the end of the nineteenth century, however, attitudes about eminent domain began to shift in the direction of greater protection for individual owners. Several factors coalesced to prepare the way for a new understanding of the takings question. Eminent domain was increasingly exercisedby government itselfrather than private enterprise. Historians have debated whether antebellum jurists shaped eminent domain law to curtail recovery in order to guard the slender resources of fledgling private corporations.7 Such considerations, however, were less compelling with respect to public revenue. Americans in the late nineteenth century JOURNAL 1996, VOL. 2 121 experienced sweeping social and economic changes. With rapid urbanization, industrial growth, and technological advances, government at all levels interacted with property owners in more complex ways. As government undertook more tasks, it employed eminent domain to achieve an expanding range of projects and enacted regulations that abridged the traditional rights of property owners. The federal government, for instance, undertook extensive river improvement that impaired the use ofriparian land. Municipal governments increasingly appropriated property and imposed fledgling land use controls in order to shape the urban environment. To ensure an adequate water supply for their expanding populace, many cities moved toward municipal ownership of the water supply and acquired the facilities ofprivate water companies. City leaders also expressed renewed interest in urban beautification.8 The campaign to improve American cities necessitated the appropriation of private property for parks, boulevards, and elevated street railroads. Moreover, communities experimented with restraints on urban land use to address specific problems, such as the height ofbuildings and the preservation of visual harmony.9 Many ofthese governmental actions imposed restrictions that markedly reduced the productive use ofproperty. The growth ofdense urban areas generated more comprehensive regulation to protect the inhabitants against fire and disease. Advances in scientific knowledge about public health linked spread of disease and slum housing. Concern about the living condition of immigrants and workers sparked a movement to reform tenements.10 Yet the expense of complying with heightened health and safety measures often placed a heavy financial burden on landowners, and could be viewed as a backdoor taking of property. At the same time, western states sought to exploit natural resources and hasten economic growth by expansive use of eminent domain. Western lawmakers adopted schemes to facilitate the irrigation of crops and mining of natural resources by authorizing private individuals to employ eminent domain power for private gain.11 In 1833 the Court ruled in Barron r. Baltimore that the Fifth Amendment was binding only on the federal government. The case involved a wharf owner who sued the city of Baltimore for...

A Poor Relation? Regulatory Takings after Dolan v City of Tigard

The Takings Clause of the Fifth Amendment provides that no private property shall be taken for public use without just compensation.' Although the Clause applies most obviously to the eminent domain power of the state, the Supreme Court has long recognized that certain land use regulations that stop short of physical appropriations by the government also fall within the ambit of the Takings Clause.2 The regulatory takings theory has produced substantial litigation between landowners seeking to improve or otherwise use their property, on the one hand, and government regulators seeking to promote such public goods as historical and environmental preservation and infrastructure improvements, on the other.3 In recent years, litigation has focused particularly on attempts by municipalities to condition approval of real estate development permits on landowners' dedicating portions of their property to public use, a practice known as exaction.4

Toward Allocative Efficiency in the Prescription Drug Industry

Traditionally, monopoly power in the pharmaceutical industry has been measured by profits. An alternative method estimates the deadweight loss of consumer surplus associated with the exercise of monopoly power. Although upper and lower bound estimates for this inefficiency are far apart, they at least suggest a dramatically greater welfare loss than measures of industry profitability would imply. A proposed system would have the U.S. government employing its power of eminent domain to "take" and distribute pharmaceutical patents, providing as "just compensation" the present value of the patent's expected future monopoly profits. Given the allocative inefficiency of raising taxes to pay for the program, the impact of the proposal on allocative efficiency would be at least as good at our lower bound estimate of monopoly costs while substantially improving efficiency at or near our upper bound estimate.

Nexus Redux on Required Land Dedications

Abstract In Dolan v. City of Tigard, (1994), 46 ZD 232, the Supreme Court struck down a municipal building permit condition that the landowner dedicate bike pathand greenway/ flood-plain easements to the city. As the Court pointed out, had Tigard simply required such dedications, it would be required to pay compensation under the Fifth Amendment. Attaching them as building permit conditions required a more sophisticated analysis closely following Nollan v. Cali-fornia Coastal Commission, 483 U.S. 825 (1987), 39 ZD 226, since the police power is implicated rather than the power of eminent domain. In the process, the Court signalled how far local government may go in passing on the cost of public facilities to landowners. The answer: only to the extent that the required dedication is related both in nature and extent to the impact of the proposed development.

Private Property and the Power of Eminent Domain

Private Property and the Power of Eminent Domain

Eminent Domain Powers Not Needed to Lay Pipe

A nonprofit water supply corporation authorized to lay its lines in a county's public right‐of‐way did not have to exercise the power of eminent domain to acquire a right‐of‐way, according to a Texas appellate court.

The Accommodation of "Occupation" and "Social Utility" in Prior Public Use Jurisprudence

The city of New Haven owns an airport located partially within the city and partially within the town of East Haven. East Haven is hostile to the development of the airport and for years has sought to contain it. East Haven and the East Haven Economic Development Commission institute eminent domain proceedings to take three parcels of the airport's land, situated in East Haven but owned by New Haven, to develop an industrial park. The parcels are not currently used for airport operations except to the extent that they ensure requisite unobstructed air space and permit future expansion of airport facilities. The industrial park could be an important source of economic development for the town. East Haven seeks to take the parcels subject to any height restrictions imposed by federal and state statutes and regulations. In response, the city of New Haven and the board of airport commissioners bring actions to enjoin East Haven from taking the three parcels. New Haven's central argument is that the property cannot be condemned because it is already devoted to public use.' The prior public use doctrine is a judicial rule employed in the adjudication of such conflicts, in which a condemnor endowed with a general grant of the power of eminent domain attempts to use the power to take property already dedicated to a public use. The problem often arises in disputes between corporations granted equal powers of

Takings, Insurance, and Michelman: Comments on Economic Interpretations of "Just Compensation" Law

UNDER the takings clause of the Constitution, the state is required to pay just compensation whenever it takes private property for public use. Yet the explicit command of the Fifth Amendment does not foreclose asking whether, on balance, this rule is a good thing. If pressed on the question, most economists and lawyers would, we believe, conclude that the government should pay for the property that it takes. The argument, especially that of economists, might be that forcing the government to pay for the resources it gets promotes efficiency.' In a world lacking any compensation requirement, the obvious fear is that private investors will be inhibited by the thought that government will snatch away or unthinkingly destroy the fruits of their venture. The fears of what will happen at the end of the process work themselves into the calculation of property owners at the beginning of that process, so that too little capital will be invested in productive enterprises. The compensation requirement thus serves the dual purpose of offering a substantial measure of protection to private entitlements, while disciplining the power of the state, which

Takings: Private Property and the Power of Eminent Domain, by Richard A. Epstein

Philosophical Preliminaries A Tale of Two Pies Hobbesian Man, Lockean World The Integrity of Constitutional Text Takings Prima Facie Takings and Torts Partial Takings: The Unity of Ownership Possession and Use Rights of Disposition and Contract Taking from Many: Liability Rules, Regulations, and Taxes Justifications for Takings The Police Power: Ends The Police Power: Means Consent and Assumption of Risk Public Use and Just Compensation Public Use Explicit Compensation Implicit In-Kind Compensation Property and the Common Pool Regulation Taxation Transfer Payments and Welfare Rights Conclusion: Philosophical Implications Index of Cases General Index

Takings: Private Property and the Power of Eminent Domain. Richard A. Epstein

<i>Takings: Private Property and the Power of Eminent Domain</i>. Richard A. Epstein

The Public Purpose Limitation on the Power of Eminent Domain: A Constitutional Liberty under Attack

The Public Purpose Limitation on the Power of Eminent Domain: A Constitutional Liberty under Attack

Federal Water Projects and Indian Lands: The Pick-Sloan Plan, A Case Study

The history of the application of the European doctrines of discovery and conquest to American Indian tribes in the eighteenth and nineteenth centuries--and the evolution of policies which defined tribes as domestic dependent nations--is well known. The subsequent saga of massacres, depredations and broken treaties which resulted from the exercise of territorial imperatives on both sides has likewise occupied the pens of many historians. What is less familiar is that the struggle for land and sovereignty did not end in the bloody snows of Wounded Knee in 1890 but has continued, for even greater stakes, into the present century. Preoccupied until recently with the dramatic military confrontations of the nineteenth century, historians of federal Indian policy have paid too little attention to the erosion of Native land and water rights persisting to the present day. Because of the marginal nature of much of the Indians' remaining land and resources, this neglectful situation has become even more detrimental to tribal interests. Since land has long been essential to tribal existence, and since so many of today's tribes depend on their ability to utilize and control their own resources, these issues are far too grave to ignore. Increasingly in the twentieth century, the United States has used its power of eminent domain to seize large parcels of Indian land for the construction of flood control and reclamation projects. While federal water agencies claim these dams provide multiple benefits for the general public, Native Americans seem always to be the last to receive these advantages. In the Missouri River Basin the Pick-Sloan Plan--the joint water development program the Army Corps of Engineers and the Bureau of Reclamation designed in 1944--caused more damage to Indian land than any other public works project in America. Whether or not these Federal agencies deliberately chose Indian over non-Indian land for their project sites, as some tribal leaders have charged, their plans ultimately affected twenty-three different

Diary of a Plan

Abstract During 1963 and 1964, The Plan for the Valleys-a seventy-square mile sector of largely undeveloped countryside northwest of Baltimore, Maryland—was prepared for the Green Spring and Worthington Valley (GSWV) Planning Council, Inc. The Plan used a new ecological planning approach that first indentified land that should be left in a natural state. Land suitable for limited development as well as land whose development did not significantly affect natural processes or the unique visual character of the Valleys was then examined to see whether or not it could meet metropolitan needs for development and local property owner's economic goals if a mechanism for equitable distribution of gains in land values could be devised. A program for action and implementation developed as an integral part of the Plan was adopted by the Valleys Council and has been in operation for the past six years. While key private actions have not yet been taken, it is still too early to predict failure of the Plan. The County, the Regional Planning Council, and the state of Maryland have all adopted the Plan “in principle.” To date, damaging zoning changes and inappropriate utility and highway layouts have been prevented, or cajoled, into conformance. But time is running out. Will the Valleys be the first successful large-scale example in America of humane development and conservation of the countryside by citizen action? Or will it be convincing evidence that only through state or federal intervention using the power of eminent domain will suburban sprawl be averted?

The Response of State Legislation to Historic Preservation

The protection and preservation of places of historic, cultural, and natural interest are activities particularly appropriate to state and local governments. The charm of America is accentuated by diversity-diversity of history, geography, economy, and the varied ethnic origins and cultural concerns and values of its people. Few landmarks have significance that is truly national in character. Rather, most have special relationships to particular places or people whose unique interests they reflect. Standards and procedures for historic preservation are thus necessarily related to state and local objectives and can be implemented most feasibly through governmental action on state and local levels. Moreover, the states are the repositories of the powers of the government most useful in achieving preservation objectives-the police power, the power of taxation, and the power of eminent domain. Awareness of the need for the state and local initiative is reflected in much of the recent preservation legislation enacted by the Congress. 1 PArTRis IN STAT PRESERVATION LEGISLATION Few, if any, state legislatures have demonstrated a long continuing concern for preservation of cultural landmarks. American life has emphasized the new-new ways, new ideas, new things. The old has often been the subject of indifference or disdain. Too much state control of historic properties has been thought to deviate from the traditional American concept of the role of government in society. Economic considerations are often overriding deterrents to preservation legislation. Hence, much of the activity aimed at the preservation of places and objects of historic interest has been initiated and carried forward by civic-minded individuals and private organizations. While activity of this kind is often rewarding to the community and results in the preservation of objects of veneration, in other cases the objectives of historic preservation have been obscured by short-range economic motives. The accelerated rate of destruction of historic landmarks in the twentieth century has demonstrated the need for greater governmental participation and has produced accelerated activity by state legislatures. Thus, during the past few decades patterns in state laws aimed at historic preservation have begun to emerge.

Planning Implications of Urban and Rural Freeway Interchanges

Accessibility, traffic and the availability of developable land have been the volatile ingredients touching off the development explosion in the vicinity of the freeway interchanges. Zoning and other planning tools, however, have failed to cope with the problems arising from uncontrolled development. The best current solution appears to lie in the use of the eminent domain power to control access. This should be applied by the states in conformity with a systems conceived interchange development and circulation plan. Criteria and guidelines are suggested for various features relating to access and traffic circulation with specific reference to problems occurring at motorist service areas.

Civil Rights. Urban Renewal. Allegation of Conspiracy to Use Eminent Domain Power for Racially Discriminatory Purpose in Urban Renewal Program Does Not State a Federal Claim under Civil Rights Act, 42 U. S. C. Section 1983. Green Street Association v. Daley, 373 F.2d 1 (7th Cir. 1967), "cert. denied", 387 U. S. 932 (1967)

Civil Rights. Urban Renewal. Allegation of Conspiracy to Use Eminent Domain Power for Racially Discriminatory Purpose in Urban Renewal Program Does Not State a Federal Claim under Civil Rights Act, 42 U. S. C. Section 1983. Green Street Association v. Daley, 373 F.2d 1 (7th Cir. 1967), "cert. denied", 387 U. S. 932 (1967)