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The Neglected Political Economy of Eminent Domain

Nicole Stelle Garnett

Notre Dame Law School

Michigan Law Review, Forthcoming
Notre Dame Legal Studies Paper No. 06-01

This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners may voluntarily settle on above-market compensation during pre-condemnation negotiations. The Article concludes by reflecting upon current efforts to reform eminent domain legislatively. Prominent legal scholars recently have proposed compensation-based reforms as an alternative to constraints on the use of eminent domain. The final Part rejects this suggestion, arguing that there are two problems, unique to takings raising public use questions, that more money cannot solve: First, high compensation levels may undermine political resistance to questionable projects; second, private takings may generate non-instrumental harms that will persist even as compensation increases.

Number of Pages in PDF File: 59

Keywords: public use, eminent domain, takings, compensation, economic development, Kelo

JEL Classification: H7, H70, K11, O1

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Date posted: January 13, 2006  

Suggested Citation

Garnett, Nicole Stelle, The Neglected Political Economy of Eminent Domain. Michigan Law Review, Forthcoming; Notre Dame Legal Studies Paper No. 06-01. Available at SSRN: http://ssrn.com/abstract=875412

Contact Information

Nicole Stelle Garnett (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556
United States
574-631-3091 (Phone)
HOME PAGE: http://www.law.nd.edu/faculty/facultypages/garnettn.html
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