'Equitable Compensation' as 'Just Compensation' for Takings

Brigham-Kanner Property Rights Conf. J., Vol. 10, p. 315 (2021)

Brooklyn Law School, Legal Studies Paper No. 693

37 Pages Posted: 17 Jan 2022

Date Written: January 14, 2022


The Fifth Amendment’s requirement that the government pay “just compensation” to owners of taken property is typically assumed to mean “full” compensation, equivalent to the taken property’s fair market value. In this symposium contribution to the Brigham-Kanner Property Rights Journal, I explore an often overlooked alternative understanding of “just compensation” for takings, one freed from automatic equation with full, fair-market-value compensation. Rooted in traditional equity, this “equitable compensation” alternative has significant historical roots, starting with the Fifth Amendment’s drafters’ striking choice not to follow the Northwest Ordinance of 1787’s requirement of “full” compensation, and running through a line of cases and commentary that has emphasized takings compensation’s equitable nature. I argue that recognizing takings compensation’s equitable dimension—particularly equity’s attention to reciprocal obligations—can help takings law more naturally respond to thorny difficulties caused by specific rigidities in takings doctrine, rigidities that create challenges when takings doctrine is forced to address situations that differ from core cases of eminent domain. Attending to the relative weights of parties’ reciprocal duties, and equitably adjusting compensation in response, can help resolve such cases more plausibly, including takings for private projects with public benefits (as in Kelo v. New London) and regulatory takings.

Keywords: takings, eminent domain, equity, just compensation, Fifth Amendment, equitable compensation, property

Suggested Citation

Lee, Brian A., 'Equitable Compensation' as 'Just Compensation' for Takings (January 14, 2022). Brigham-Kanner Property Rights Conf. J., Vol. 10, p. 315 (2021), Brooklyn Law School, Legal Studies Paper No. 693, Available at SSRN: https://ssrn.com/abstract=4009224

Brian A. Lee (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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