Power Of Eminent Domain Research Articles

The Social Nature of Property: An Analysis Using Hohfeldian Jural Relations

As John R. Commons taught us nearly 100 years ago and has been reinforced by scholars like Warren Samuels in the middle and late twentieth century, legal and economic systems co—evolve with each other and co—determine the performance we observe. In a recent Supreme Court Case, PennEast Pipeline Co. v. New Jersey, the U.S. Supreme Court ruled that a pipeline developer may use the federal government’s legal power of eminent domain to seize state property, should they obtain the appropriate certificate from the Federal Energy Regulatory Commission (FERC). A Hohfeldian jural relations framework as developed by Klammer and Scorsone is used to explore the social nature of property as illustrated in the case, highlighting the implications of differing interpretations of the Natural Gas Act and other legal doctrine for the State of New Jersey, PennEast, the FERC, and other property interests.

A Tall Summit: Securing Lasting, Reliable Public Access For Recreational Use On Colorado’s Privately Owned Fourteeners

From the National Scenic Trails to mountains to other destinations in nature drawing the public’s interest and time for recreational activities, privately owned land can cause difficulties in ensuring reliable and consistent public access. A specific example is the Decalibron Loop, a trail in Colorado linking together a few mountains; public access has wavered over the years, and a recent Tenth Circuit case, Nelson v. United States, greatly affected landowner dispositions—particularly with regard to liability—toward the privately owned property. Similar situations across the country provide a variety of potential approaches to helping provide public access and reducing landowner concerns. 
 With the goals of respecting private property ownership and addressing landowner concerns, this Comment explores and analyzes various potential solutions as applied to the Decalibron Loop. Actions such as creating new easements or utilizing the government’s power of eminent domain have significant weaknesses. Creating a reliable partnership and updating the Colorado Recreational Use Statute are the two most viable options. These solutions take into account landowners’ vocal concerns, local organizations’ opinions and insight, and the uncertain future in this area of law following the Nelson case.

FULL SPEED AHEAD? Reexamining Texas's Approach to Eminent Domain

Property rights are traditionally held sacred in Texas. But through eminent domain, landowners lose their property rights, purportedly in service of the broader public. Sometimes, the legislature confers eminent domain power on for-profit companies. Landowners are then forced to surrender their property while the companies benefit economically. The result is that landowners are stripped of the right to fully use and enjoy their property.
 The recent Texas Supreme Court case, Miles v. Texas Central Railroad & Infrastructure, Inc., demonstrates the tension between property rights and economic development created by eminent domain. Facially, Miles concerns whether a for-profit company’s high-speed rail qualifies as an interurban rail or railroad for purposes of eminent domain authority. But like many cases involving eminent domain, Miles is really about power: who has it, where it comes from, and what happens to those who do not have it. This Article functions as a starting point for reexamining how the Texas Legislature can better balance the scales between a landowner’s property rights and the economic benefits of eminent domain.

How Far Does Natural Law Protect Private Property?

This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century.
 The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical review, it concludes that natural law, standing alone, is largely theoretical and does not appear to offer meaningful guidance to current problems.

Boycott the Games: Show Me the Money!

One would assume that the virtual attributes of themselves, including their name, image, and likeness (“NIL”) are their own private property, free from governmental or private exploitation. Unfortunately, while states provide for protection against invasion of privacy rights, such as the right of publicity and from private encroachment, it is not clear that a person is protected against governmental exploitation. Therefore, there is much to learn from the case of the National Collegiate Athletic Association’s (NCAA) past and current regulations of its players’ right to control and capitalize on their NIL. Recently, the Supreme Court in NCAA v. Alston took judicial notice of gross inequities in student-athletes’ compensation. Consequently, several states have enacted laws that grant NCAA players the ability to capitalize on their NIL, with some restrictions, and not lose their amateurism status. However, neither the Court nor the states have addressed three quintessential, jurisprudential questions: (1) Is there an inherent right to the attributes of oneself? (2) Is that right a property interest of the person? (3) Is that property interest beyond the reach of the eminent domain powers of the government, as recognized in the Takings Clause of the Fifth Amendment to the U.S. Constitution? This article posits that libertarian principles should apply to (1) recognize an inherent right that everyone in the United States has to own and control the attributes of themselves, (2) deem that right to be a special form of natural property, and (3) hold that that right is not subject to the government’s power of eminent domain. It applies these principles to the case of the NCAA and its members’ regulations that place restrictions on its players from fully benefitting from their NIL to argue that the NCAA and particularly its state-owned member schools are carrying out an unconstitutional exploitation of fundamental rights. Furthermore, it calls upon the general public to boycott NCAA sports until the organization and its members compensate student-athletes as professionals, not amateurs, and allow them to capitalize on their NIL without restrictions, as a matter of fundamental right and not as a mere privilege that is granted by some states. Most importantly, the NCAA players’ battle over their NIL rights is a critical precedent relating to the government’s control over people’s virtual assets.

Federal Eminent Domain Power Prevails Over State Sovereign Immunity in Newest Supreme Court Case

Building energy‐related infrastructure, assuring reliable sources of energy generation, and protecting the environment are not novel concerns. Since the Founding of the Republic, the federal government has not hesitated to exercise the power of eminent domain to address infrastructure priorities. Nor has the national sovereign done so singlehandedly; often times it has delegated its authority to private actors, who proceed under the federal government's aegis in acquiring both private property and state‐owned lands.

From Profit to Polity: A U.S. Water Utility’s Transition to a Government-Shareholder Model

The Pennichuck Corporation, located in New Hampshire, U.S., provides a unique opportunity to explore the rare structural transition from investor-ownership to a government-shareholder model for a long-standing regional water utility. In early 2012, concluding a ten-year dispute, the City of Nashua leveraged its power of eminent domain to become Pennichuck’s sole shareholder not by a taking but by a stock purchase agreement transferring the entirety of the company’s regulated and unregulated assets. We draw on primary documentation and data to review the terms of the transaction and contrast the ex-ante and ex-post models. Utility operations and state economic regulation remained constant over the transition, thus controlling for their potential effects. Our descriptive analysis of time-series financial and other data provides evidence of outcomes, including the lower cost of capital and operations. This information-rich case illustrates the arduous process of public acquisition, calling into question the institutionalized policy asymmetry favoring private over public acquisitions, which undermines structural competition.

Legal Doctrine and Judicial Review of Eminent Domain in China

Which of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This article addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.

Legal Doctrine and Judicial Review of Eminent Domain in China

Which of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This paper addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.

CONFLICTS OF URBAN HERITAGE LAND TENURE: EVOLVING A TEMPLATE FOR APPROPRIATE EMINENT DOMAIN LAW IN KADUNA-NIGERIA

The impetus for this paper was the prevailing urban heritage land conflict within Kaduna metropolis due to government arbitrary application of Power of Eminent Domain on allocated infill lands of some intuitions for the said public interest. The paper purpose was set to review the concept of Eminent Domain law in Nigerian urban built environment, understand the varied interest of stakeholders’ diverse influences in land use activities and proposed a template for appropriate legislation and application of Eminent Domain law by government and its agencies in Kaduna metropolis and the nation at large. Methodology adapted for the study was hinged on pragmatic philosophy. Deductive approach with qualitative method using case study, archival and interview survey strategies. The selected institutions cut across tertiary, secondary and primary level with key stakeholders were interviewed. Study data was based on content theoretical analysis for proposition on land use eminent domain law. The study findings showed that government and its agencies seem to have abandoned their principal responsibility of impartial trustee and infrastructures provision in urban development. Furthermore, policy decisions are changed whimsically on the status of most urban land tenure depending on those in power at any particular time, thereby dampening land transactions, development schemes, thus leading to litigations. The study also establishes that while neighbourhoods’ interest and participatory rights remain neglected; indigenous communities often proceed with the land transaction on the presumptuous right of ownership within urban areas, thereby further compounding the conflicting interests. Ultimately, the paper proposed a template for appropriate eminent domain law legislation process and applicability within Kaduna metropolis as well as the country at large. The designed template will serve in enhancing eminent domain law theoretical development and ensure friendly on-site practical application that is based on proactive government policy.

Pandemic Takings: Compensating for Public Health Emergency Regulation

The COVID-19 pandemic led all states to issue regulations aiming to limit the spread of the coronavirus and reduce morbidity and mortality. Alongside the impediments that the “stay at home” and social distancing regulations imposed on citizens’ freedom of movement, worship, and leisure, they also interfered, sometimes significantly, with owners’ property rights. Most states ordered closure of non-essential businesses; some prohibited or suspended evictions of residential and commercial rentals, and others restricted beach access, preventing beachfront owners from using their property. The COVID-19 regulations’ harmful economic effects led owners from states all across the country to bring legal challenges to these regulations. Among other claims, owners argued that the regulations violated the Fifth Amendment to the United States Constitution, because the regulations constituted a taking of private property for public use without the payment of just compensation. This article argues that although current takings jurisprudence may pose considerable legal challenges for property owners, establishing owners’ Fifth Amendment claims for compensation for the economic damages resulting from the COVID-19 regulations is not at all unfounded. While regulating property in emergencies is often considered within the state police power, thus relieving the government from paying compensation to owners, there may be circumstances where emergency property regulation would constitute a takings, requiring the government to compensate owners. To further this argument, the article proposes a theory that allows lawmakers and courts to better distinguish between the state’s police power and its eminent domain power. The proposed theory suggests that although the state’s police power is designed to allow the government to regulate property to respond to emergencies efficiently and effectively, such regulation may nevertheless exceed the state police power if it imposes a disproportionate burden on property owners. In such cases, takings claims may become the most significant means by which property owners can cope with emergency property regulation.

Evaluating Emergency Takings: Flattening the Economic Curve

Desperate times may breed desperate measures, but when do those desperate measures undertaken during emergencies trigger the Fifth Amendment’s requirement that the government provide just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power” — a sovereign government’s power to regulate and restrict property’s use in order to further the public health, safety, and welfare — and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. An invocation of police power does not answer the compensation question at all, but is merely the predicate issue: all government actions must be for the public health, safety, or welfare, in the same way that an exercise of eminent domain power must be for a public use. In “normal” times, it is very difficult to win a regulatory takings claim for compensation. In the midst of emergencies — real or perceived — the courts are even more reluctant to provide a remedy, even where they should, and emergencies are a good time to make bad law, especially takings law. This article provides a road-map for analyzing these questions, hoping that it will result in a more consistent approach to resolving claims for compensation that arise out of claims of emergencies — real or perceived. This article analyzes the potential takings claims stemming from emergency measures, mostly under current takings doctrine. What type of claims are likely to succeed or fail? Can a better case be made analytically for compensation? Part I summarizes the economic “flattening the curve” principle that motivates takings claims for compensation. Part II sets out the prevailing three-factor Penn Central standard for how courts evaluate claims that a health, safety, or welfare measure “goes too far,” and requires compensation as a taking, examining the character of the government action, the impact of the action on the owner, and the extent of the owner’s property rights. Deep criticism of Penn Central is beyond the scope of this article, and I will not here do more than accept it as the “default” takings test. But I do argue that the government’s motivation and reason for its actions — generally reviewed under the “rational basis” standard — should not be a major question in takings claims. Rather, as this article argues in Part III, the government’s emergency justifications should be considered as part of a necessity defense, and not subject to the low bar of rational basis, but a more fact and evidence driven standard of “actual necessity.” Part IV attempts to apply these standards and examines the various ways that emergency actions can take property for public use: commandeering, occupations of property, and restrictions on use. I do not conclude that the approach will result in more (or less) successful claims for compensation, merely a more straightforward method of evaluating emergency takings claims than the current disjointed analytical methods. In sum, this article argues there is no blanket immunity from compensation simply because the government claims to be acting in response to an emergency, even though its reasons and actions may satisfy the rational basis test. Instead, claims that the taking is not compensable because of the exigency of an emergency should only win the day if the government successfully shows that the measure was actually needed to avoid imminent danger posed by the property owner’s use, and that the measure was narrowly tailored to further that end.

The Controversy over Energy Takings: A Tale of Pipelines and Eminent Domain

This article examines the controversy over the exercise of eminent by private enterprise to acquire property for oil and natural gas pipelines. Although opposition to pipelines is largely driven by broad environmental concerns to curb reliance on fossil fuels, this article focuses on whether energy takings by non-governmental entities satisfy the “public use” requirement in state condemnation statutes or as a constitutional norm. It traces the history of eminent domain in the United States from the mill acts of the eighteenth century, emphasizing that legislators frequently delegated eminent domain power to canals, turnpikes and railroads in order to improve transportation. Courts regularly sustained these laws as effectuating a “public use.” In other words, “public use” was never confined to public ownership. In the late nineteenth century courts readily upheld legislation conferring eminent domain authority on private pipeline companies, comparing pipelines to other modes of transportation. With the Natural Gas Act of 1938 Congress asserted federal authority over the transportation of natural gas, and in 1947 granted federal eminent domain authority for interstate natural gas pipelines. Oil pipelines, on the other hand, continue to rely on a patchwork of state laws to exercise eminent domain power. For decades after World War II the acquisition of land for pipelines was not particularly controversial. With new technology, however, oil and gas production soared as did the need for expanded pipeline infrastructure. Critics now maintained that taking for pipelines were not for “public use,” and therefore failed to satisfy state eminent domain statutes or were unconstitutional. This article notes the erosion of the “public use” norm as a meaningful restraint on eminent domain, especially at the federal level. It then considers the checkered pattern of recent state legislative actions and judicial decisions, arguing that most state courts are likely to uphold the use of eminent domain for pipelines. It also points out that the same legal arguments used against pipeline construction are being employed to challenge new electric power transmission lines. The article concludes by questioning whether affected landowners and environmental advocates have much in common with respect to the rights of property owners and predicting that any alliance will prove fleeting and tactical.

Legal Regime on Stabilization Clauses in The Extractive Sector in Tanzania

This article analyses stabilization regime in the extractives sector in Tanzania from the perspective of the State’s sovereign legislative and regulatory rights. Inherently, stabilization clauses are mitigation tools that seek to limit host States’ legislative and administrative actions to the respective agreements in enhancing investors’ legitimate expectations and protections. This paper advances the argument that a government of a sovereign State cannot, as a matter of principle, fetter its duty to act for the public good and interest by binding itself through stabilization clauses. However, the government must do so while also honouring its international contractual commitments. It must therefore act fairly, reasonably and equitably under the power of eminent domain and public powers against the illgotten unbalanced terms including investment agreements. This article also discusses the concept of unconscionability including the practical limitations for the States to use it as a defense, especially, in investment treaty claims. The principle of pacta sunt servanda as it relates to the stabilization clauses in the extractive sectors arrangements is also discussed. In this context, this paper argues that stabilization clauses cannot blindly be enforced against a State under the auspices of the pacta sunt servanda principle. Key words: stabilization clauses, legitimate expectations, unconscionable terms, regulatory autonomy, pacta sunt servanda.

A game theoretic approach to optimize multi-stakeholder utilities for land acquisition negotiations with informality

To combat the critical stresses of rising urbanization, the government acquires land from private owners using the power of eminent domain. This land assembly causes negative externalities such as increasing social tension and injustice that may impose a long-term threat to stability and sustainable development. Therefore, there is a need to make the land acquisition process more transparent and just. Considering the unique Indian context where informality has a strong presence, we propose an approach based on game theory that models the bargain through a three-stage Nash equilibrium game. Four agents – the government, the private developer, the landowner, and the free rider – are considered. We provide conditional solutions for the generalizable Case and proceed to model different stakeholder behavior patterns through two utility functional forms – linear and exponential. In the linear case, we find that the free rider obtains half of the revenue of the project, whereas the landowner gains between one-fourth and one-half of the revenue. Thus, we highlight the undeniably crucial role free riders play in land acquisition negotiations. However, closed form solutions cannot be obtained for the exponential form, due to which we use simulations to demonstrate a solution procedure. We conclude by stating that the proposed model can be useful in formulating future land policies in a sustainable and inclusive manner, with optimal utility derivations for all concerned stakeholders. Our model can also be extended to other spatial contexts where informality features heavily in the land market, especially in the Global South.

Rules versus Standards in Developing Countries: the Case for Clear and Precise Legal Norms on Eminent Domain Power

Abstract We relate the rules versus standards debate to legal norms of taking law in developing countries and argue in favour of more precise legal norms regulating takings in low-income countries. Clear, specific and exact legal norms should be socially preferred whenever a regulatory law cuts into fundamental rights as this improves the possibilities of supreme courts to check the constitutionality of such norms. This holds equally for rich and poor countries. But in poor countries, precise norms have additional advantages over standards, whose adjudication requires highly qualified and loyal judges and administrators, is information intensive and increases procedural costs for the parties. We argue that in the course of economic development, courts and administrations should be granted more flexibility and rigid rules should gradually be replaced by more adjustable legal standards which are more flexible and can adjust better to the merits of a single case.

Eminent Domain a Decade After Kelo

This Comment addresses the controversial Kelo v. City of New London decision and focuses on the state of Texas’ response to Kelo through its enactment of section 2206.001 of the Texas Government Code. This Comment discusses the implications of this statute in the realm of professional and college sports stadiums in Texas. Additionally, this Comment provides a background in the evolution of the eminent domain doctrine and prominent Supreme Court decisions expanding an authorized entity’s eminent domain power under a broadened definition of the entity providing a “public use.” The arguments are analyzed for whether Texas college and professional stadiums provide a public use, concluding that land takings from private landowners for the purpose of building sports stadiums constitutes a permissible public use under the Kelo standard. Land takings to build a sports stadium likely constitute a public use because it provides access to public participation, national prominence, revenue, tax benefits, and hurricane shelter for its citizens. Finally, this Comment proposes legislative amendment to section 2206.001(c) of the Texas Government Code that would raise the threshold for landowner’s compensation from 100% of the fair market value to 150%—250% of the fair market value of the property. A higher compensation would reimburse the landowner for the equity value of the property and would help prevent potential holdouts.

Shall the Taking for the Private be Justified? --- An Economic Study on Land Expropriation in China from a Comparative Perspective

Referring to Kelo Case(2005), in this article I examined the economic rationale behind the restraining the interpretation of use by comparing legal practice in the United States, China, Germany and India. Begin by criticizing Thomas Merrill’s expropriation theory, I argued that the private taking could be settled within the market mechanism through a benign institutional design. Following that I took China as an example, analysed how the broad interpretation of “public interest” leads to abuse of the eminent domain power and resulted in serious social problems. Such problems can be categorized into two categories: the social stability problem and land productivity problems and two economic models have been put forward to illustrate the potential social loss on the broad interpretation. After that, I compared the approaches to restrict the broad interpretation of public interest in three countries. The “bottom-up” approach in the United States left some states to the non-protection offered by the Supreme Court and may result in conflicts between state and federal legislation; The German approach institutionally generates too much delay in legislation and litigation procedure; As for India, through raising its compensation to restrict the Public Interest may result to the market mechanism be gradually replaced by the regulatory mechanism, the excessive compensation will “guarantee neither social justice (the interest) nor the efficient use of resources.

Rules Versus Standards in Developing Countries: The Case for Clear and Precise Legal Norms on Eminent Domain Power

We relate the rules versus standards debate to legal norms of taking law in developing countries and argue in favor of more precise legal norms regulating takings in low-income countries. Clear, specific and exact legal norms should be socially preferred whenever a regulatory law cuts into fundamental rights as this improves the possibilities of supreme courts to check the constitutionality of such norms. This holds equally for rich and poor countries. But in poor countries precise norms have additional advantages over standards, whose adjudication requires highly qualified and loyal judges and administrators, is information intensive and increases procedural costs for the parties. We argue that in the course of economic development courts and administrations should be granted more flexibility and rigid rules should gradually be replaced by more adjustable legal standards which are more flexible and can adjust better to the merits of a single case.

Brief of 15 Law Professors as Amici Curiae, Return Mail, Inc. v. United States Postal Service, No. 17-1594, Supreme Court of the United States

Structurally, Congress in the Patent Act and the America Invents Act (AIA) preserved and established four distinct offices within Covered Business Method proceedings before the Patent Trial and Appeal Board (Board) — (1) accused infringer, (2) patentee, (3) the Patent Office, and (4) an agency which enjoys sovereign immunity and the power of eminent domain. It declared and incorporated the traditional rights and duties of accused infringers and patent owners to initiate and answer to proceedings concerning patent validity, while in the AIA it moved some of those proceedings from Article III courts to administrative proceedings before the Board. Congress extended to those proceedings the Patent Office’s power to initiate the determination of patent validity. All the while, it preserved the power of agencies other than the Patent Office to appropriate patent rights by eminent domain. Because different rights and duties are at stake in each of those four offices, and because the combination of separate powers could jeopardize the due process rights of patent owners and accused infringers, Congress did well to keep them separate. The powers of private parties and the federal government to initiate proceedings that implicate patent rights have important due process implications. The ruling below makes a hash of the procedural and institutional structure that Congress carefully designed. In jurisprudential terms, the Postal Service claims the powers and immunities of the legislative sovereign, who possesses the inherent power of eminent domain and is immune from liability for infringement. At the same time, it claims the powers of an accused infringer and so disavows the legal disadvantages of the sovereign. It cannot have both. In fact, the Postal Service cannot infringe and cannot be charged with infringement. The sovereign who exercises the power of eminent domain and pays just compensation has acted lawfully, not unlawfully, and therefore has not trespassed against the patent. And the Postal Service must pay compensation when it appropriates a license to practice a patented invention. Vested patents are property for Fifth Amendment purposes and a government must pay for licenses taken from them just as it pays for real and personal property that it appropriates.