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Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo

65 Pages Posted: 8 Jun 2006  

Alberto Lopez

Salmon P. Chase College of Law

Abstract

This article explores the public use and just compensation clauses through the lenses of the political philosophies that inform eminent domain and the Takings Clause - republicanism and liberalism. The article begins with a description of the historical origins of republicanism and liberalism in eminent domain theory. Next, the article traces the jurisprudential evolutions of the Takings Clause's public use and just compensation requirements, which are the constitutional representations of republicanism and liberalism associated with eminent domain. After discussing the Court's decision in Kelo, the paper assesses the balance between republicanism and liberalism comprehended by eminent domain and the Takings Clause both pre- and post-Kelo. Kelo tips eminent domain's philosophical balance heavily in favor of republicanism. As a result, I argue for the inclusion of subjective harm in the just compensation equation, which heretofore has not figured into the just compensation calculus. The article concludes that including an individualized assessment of the subjective loss suffered by a property owner as a result of eminent domain increases the liberalism comprehended by the just compensation clause. As a result, eminent domain's balance of political philosophies moves closer to equipoise.

Keywords: Eminent domain, takings, just compensation, Kelo, public use

JEL Classification: K10, K11

Suggested Citation

Lopez, Alberto, Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo. Wake Forest Law Review, Vol. 41, No. 237, 2006. Available at SSRN: https://ssrn.com/abstract=906792

Alberto Lopez (Contact Author)

Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States
859.572.5447 (Phone)

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