Imperfect Takings

33 Pages Posted: 27 Mar 2019

See all articles by Shai Stern

Shai Stern

Bar-Ilan University - Faculty of Law

Date Written: March 5, 2019


Three concerns are inherent to the power of eminent domain — when a government forcibly takes away private property to provide a social good: abuse of this power, unfair distribution of burdens among members of society, and inefficient implementation of the government project. To protect against these undesirable outcomes, expropriation laws in most Western jurisdictions incorporate three safeguards: due process, a public use requirement, and mandatory compensation. While jurisdictions implement these safeguards in different ways, most demand their implementation as a prerequisite for legitimate expropriation. Arguably, the purpose of allowing governments to expropriate private property is to provide for important societal needs. But this conflicts with the idea that the government ought to perfectly adhere to the three aforementioned safeguards at all times. Imperfect circumstances, such as times of crisis, likely require governments to provide for the needs of their citizens, but afford insufficient time for standard due process. Imperfect implementation of the three safeguards may also be necessary when authorities struggle with budgetary limitations that prevent full compensation, or when they are unable to meet a social need without the involvement of private entities. In all these imperfect circumstances, at least one of the safeguards might be compromised if the government is to provide required social needs through expropriation.

This Article proposes a novel model to conceptualize eminent domain, which identifies an interplay among expropriation laws’ three safeguards. It further recognizes that each of these safeguards protects, to some extent, against all three of the potential dangers inherent in government’s expropriation power. This innovative interplay model legitimizes compromise, such that it is appropriate for there to be only partial implementation of one safeguard as long as the other two are strictly applied. The interplay model proposed in this Article, therefore, allows the government to exercise its expropriation power properly even in imperfect circumstances, while still sufficiently protecting property owners and society from abuse of that power.

Keywords: Property Law, Takings Law, Expropriation Law, Just Compensation, Remedies, Fifth Amendment, Emergency, Public Use, Due Process

Suggested Citation

Stern, Shai, Imperfect Takings (March 5, 2019). Fordham Urban Law Journal, Vol. 46, No. 1, 2019, Bar Ilan University Faculty of Law Research Paper No. 19-09, Available at SSRN:

Shai Stern (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900

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