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Reviving Necessity in Eminent Domain

28 Pages Posted: 25 May 2009 Last revised: 29 Jun 2009

Robert C. Bird

University of Connecticut - School of Business

Date Written: May 22, 2009


The necessity doctrine states that a condemnor may only take property via eminent domain that is necessary for furthering a proposed public use. With the advent of the Kelo v. City of New London decision and its deferential treatment of public use, necessity remains one of the few existing checks on government discretion in eminent domain. This article proposes a modest revival of the dormant necessity doctrine that preserves government discretion while curbing the reckless exercise of eminent domain.

Keywords: eminent domain, necessity, public use, takings

JEL Classification: H7, H70, K11, O1

Suggested Citation

Bird, Robert C., Reviving Necessity in Eminent Domain (May 22, 2009). Harvard Journal of Law and Public Policy, Vol. 33, 2010. Available at SSRN: or

Robert C. Bird (Contact Author)

University of Connecticut - School of Business ( email )

368 Fairfield Road
Storrs, CT 06269-2041
United States


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