Just Remedies

Abstract

This Article challenges the preference in takings law for remedial simplicity over remedial justice, and demonstrates why this preference — which is manifested by the application of a universal compensation standard — fails to fulfill the constitutional requirement of "just compensation." This failure exists at both the normative and positive levels. In a normative sense, the universal compensation mechanism is inadequate because it ignores important differences among owners, among types of property, and in the consequences of expropriation. Consequently, current takings law is at odds with the pluralistic nature of property ownership. In a positive sense, takings law is ill equipped to assess the actual loss incurred by owners whose property is taken. Courts apply a universal compensation standard — the fair market value of the taken property — which makes compensation exclusively dependent on the market, imports the failures of the market to state action, ignores non-market values and losses incurred by owners, and excludes market values that are not directly linked with the property's price.

This Article does not argue that we must sacrifice simplicity in the law for the sake of justice, but suggests that we can have them both. By expanding the range of remedies available to owners subject to expropriation, the Article offers a normative rule-based remedial scheme in takings law. To avoid ad hoc adjudication and practical assessment difficulties, the Article proposes categorization of the different prototype failures that characterize current law. Each prototype category requires different treatment in the law of takings, including different remedies available to owners. A remedial scheme which is sensitive to property types, owners' actual losses, and expropriation consequences, will restore a constitutional sense of justice to takings law.

Keywords: Property law, Eminent Domain, Remedies, Fifth Amendment, Just compensation