Public Use and the Independent Judiciary: Condemnation in an Interest-Group Perspective

69 Pages Posted: 14 Jun 2006 Last revised: 29 May 2017

See all articles by Donald J. Kochan

Donald J. Kochan

Antonin Scalia Law School at George Mason University

Date Written: 1998


This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary.

Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it on the grounds that the condemnation is private in nature. Interest groups will invest in obtaining condemnation actions for their own private purposes -- in pursuit of an ultimate title transfer, an increase in the value of adjacent property owned by that special interest, or a harm to a competitor. While institutional structure might make it impossible to increase the costs of successfully defending a condemnation in the courts, structural change can be implemented.

Applying the seminal work of Landes and Posner on the independent judiciary, this Article proceeds to illustrate that the toothless public use doctrine provides proof for their hypothesis that the judiciary exhibits a tendency to enforce interest-group bargains according to their original terms. The best means for preventing interest-group capture of the condemnation power is to increase the costs of obtaining condemnations.

Proposals which increase the costs of obtaining condemnations are the best hope for impeding rent-seeking through eminent domain. Methods should be established to force more interest groups to bargain in the competitive marketplace for the property they wish to either acquire or transform. This forced bargaining may even inspire the creation of innovative solutions to the holdout problems that sometimes are claimed to justify the use of condemnation.

[This article was cited and quoted in, inter alia, 6 amicus curiae briefs filed in the U.S. Supreme Court in the groundbreaking case of Kelo v. City of New London (including a brief submitted on behalf of the founders of public choice theory, James Buchanan and Gordon Tullock). This article was also cited and quoted in 6 amicus curiae briefs in County of Wayne v. Hathcock, where the Michigan Supreme Court overruled the Poletown standard for examining the public use provision in the constitution of the State of Michigan.]

Keywords: Property, Takings, Eminent Domain, Condemnation, Kelo, Public Choice, Constitutional Law, Fifth Amendment, Independent Judiciary, Interest Groups, Law and Economics, Landes, Posner

JEL Classification: H10, H11, H19, K00, K10 K11, K20, K23, N50, O10

Suggested Citation

Kochan, Donald J., Public Use and the Independent Judiciary: Condemnation in an Interest-Group Perspective (1998). Texas Review of Law & Politics, Vol. 3, No. 1, 1998, Chapman University Law Research Paper No. 08-01, Available at SSRN:

Donald J. Kochan (Contact Author)

Antonin Scalia Law School at George Mason University ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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