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Thursday, July 17, 2008

Two By Fee

John Fee (BYU) has posted two articles that have been published in the last couple of years on SSRN:

Eminent Domain and the Sanctity of Home

The Supreme Court's decision in Kelo v. New London has caused alarm over how easy it is for government to take private homes through eminent domain. The image of government officials ousting people from their homes for unnecessary projects has sparked movements to reform eminent domain in many states. Typically, such reform efforts are focused on the public use doctrine and what government agencies plan to do with property after taking it, rather than the unique nature of home property and its value to homeowners.

This article concludes that the root of the problem lies beyond the public use doctrine. Government takes too many homes from unwilling homeowners, and for too cheaply, even for traditional public use projects. The article explores potential methods of protecting homes against unjustified condemnation, including substantive and procedural methods. The article concludes that while various methods have advantages, adjusting the compensation structure of eminent domain to require significantly greater compensation in the case of home takings is most likely to produce optimal results. A system of compensation that recognizes more accurately what homes are typically worth to their owners would produce greater deterrence against government takings, and would improve the bargaining process between government officials and homeowners, while still allowing governments to overcome holdouts in cases of genuine public necessity.

The Takings Clause as a Comparative Right

The Fifth Amendment Takings Clause, like the Equal Protection Clause, is designed to protect the legal rights of individual citizens relative to others, not to protect the legal rights of individual expectations of wealth or to provide and insurance policy against unreasonable governmental burdens. The proper role of the regulatory takings doctrine is to require compensation in those circumstances where the government legitimately targets one or a few owners to bear a unique legal burden for the benefit of the general community. Only through a comparative theory of takings doctrine can we begin to solve many of the puzzles that appear in the law. This paper provides a defense of a comparative theory of takings law, a discussion of how a comparative theory should work, and shows how a comparative theory serves to explain many of the results of current takings law.

Ben Barros

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