June 27, 2006
Lopez on Property Theory (Republicanism and Liberalism) and Kelo
Alberto Lopez of Northern Kentucky University has recently posted Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo on ssrn. It appeared in volume 41 of the Wake Forest Law Review. His abstract reads:
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.
I had the pleasure of reading Lopez' article in draft and I highly recommend it to you. It's a great exploration of issues of political theories of regulation of land use from the early national period through Kelo. And, as other property scholars (like Gregory Alexander) have noted, the struggle in Kelo has deep historical roots.
Endnote: Edward Hopper's Haskell's House (1924) is from the website of our friends at the National Gallery. I thought you'd enjoy a picture of a house that might be subject to taking. Plus, I love the telephone pole in the front of Victorian. What a combination of old and new. Reminds me of the image of property in American and Hawaiian landscape art.
Alfred L. Brophy
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