36 Pages Posted: 28 Feb 2007
Date Written: February 2007
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: 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