50 Pages Posted: 24 Feb 2009
Date Written: February 17, 2009
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.
Keywords: eminent domain, takings, lawsuits, litigation, private property, just compensation, public use, public purpose, valuation
JEL Classification: D23, D46, G12, K11, K40, K41
Suggested Citation: Suggested Citation
Blumenthal, Jeremy A., Legal Claims as Private Property: Implications for Eminent Domain (February 17, 2009). Hastings Constitutional Law Quarterly, 2009. Available at SSRN: https://ssrn.com/abstract=1345403