Legal Claims as Private Property: Implications for Eminent Domain

Abstract:     
May the government use eminent domain to take a private citizen's right to sue? May the government take a citizen's right to sue and exercise it -- or even take the right to sue or a lawsuit and deliberately not exercise it? Even more controversial, may the government use eminent domain to condemn your legal claim and, consistent with its broad powers as delineated in Kelo, transfer that claim to another private party to pursue (or not)? In this Article I explore these questions, examining the Takings Clause implications of considering the right to sue as private property. I show that legal claims are private property for constitutional purposes; I show that government conduct of this sort would likely be acceptable as a "public purpose;" and I discuss what sort of "just compensation" might be appropriate when the government takes a private citizen's lawsuit. Throughout, I discuss various policy implications of considering legal claims as private property.

Number of Pages in PDF File: 50

Keywords: eminent domain, takings, lawsuits, litigation, private property, just compensation, public use, public purpose, valuation

JEL Classification: D23, D46, G12, K11, K40, K41

Accepted Paper Series