Public Uses and Non-Uses: Sinister Schemes, Improper Motives, and Bad Faith in Eminent Domain Law

36 Pages Posted: 28 Feb 2007  

Lynda J. Oswald

University of Michigan, Stephen M. Ross School of Business

Date Written: February 2007

Abstract

In this manuscript, I address the largely unexplored issue of whether a sovereign may use its power of eminent domain not to pursue an affirmative public use, but rather to prevent an undesired private use (such as a landfill, rehabilitation facility, or other NIMBY-triggering use) from going forward. I argue that although sovereigns tend to dissemble in these "non-use" cases based upon an underlying assumption by condemnors and courts alike that non-use takings are not constitutionally permitted, their analysis is in fact, incorrect. It is not the non-use condemnations themselves that are problematic, but the subterfuge that condemnors typically use in pursuing such takings. The resulting lack of transparency in governmental action subverts the political process and weakens private property rights protection.

Keywords: Eminent Domain, Takings, Public Use, Condemnation

JEL Classification: K11, R52

Suggested Citation

Oswald, Lynda J., Public Uses and Non-Uses: Sinister Schemes, Improper Motives, and Bad Faith in Eminent Domain Law (February 2007). Ross School of Business Paper No. 1068. Available at SSRN: https://ssrn.com/abstract=965548 or http://dx.doi.org/10.2139/ssrn.965548

Lynda J. Oswald (Contact Author)

University of Michigan, Stephen M. Ross School of Business ( email )

701 Tappan Street
School of Business Administration
Ann Arbor, MI 48109-1234
United States
734-763-9827 (Phone)
734-936-8715 (Fax)

HOME PAGE: http://www.bus.umich.edu

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