The Measure of Just Compensation

50 Pages Posted: 3 Sep 2007 Last revised: 9 Feb 2008

Katrina Wyman

New York University School of Law

Abstract

This article is a response to a little-noticed aspect of the reaction to the U.S. Supreme Court's 2005 decision in Kelo v. City of New London: the renewed discussion that the case has prompted about how much compensation homeowners should be paid when governments take their houses.

Since Kelo, there have been many proposals to increase the compensation that governments have to pay when they take property. These proposals are aimed at deterring governments from taking property in the first place and increasing the compensation that takees receive. In light of questions that three justices asked during the oral argument of Kelo about compensation for eminent domain, some observers have predicted that the Supreme Court might take a case about compensation for eminent domain.

I argue that the current debate about compensation for eminent domain is being conducted within too narrow a framework because many of the existing proposals start from the same assumption about the appropriate measure of takings compensation. Many of these proposals, like current compensation law, assume that takings compensation ideally should leave takees subjectively indifferent to a taking. I critique the idea that takings compensation should aim to leave takees subjectively indifferent to a taking. I argue instead that we should aim to leave takees objectively indifferent to a taking. Furthermore, I sketch an objective compensation measure that contrasts with the subjective ideal that underlies existing takings compensation law and many of the current reform proposals.

Suggested Citation

Wyman, Katrina, The Measure of Just Compensation. UC Davis Law Review, Vol. 41, No. 1, 2007; NYU Law School, Public Law Research Paper No. 07-17; NYU Law and Economics Research Paper No. 07-36. Available at SSRN: https://ssrn.com/abstract=1011407

Katrina Wyman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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