Fennell on Just Compensation

Lee Anne Fennell (Chicago) has posted Just Enough (Columbia Law Review Sidebar) on SSRN.  Here's the abstract:

Does the constitutional measure of just compensation — fair market value — unfairly undercompensate those whose property is taken through eminent domain? Professor Brian Angelo Lee unpacks this inquiry in his recent article, Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013). In this response, I hope to both underscore the value of the questions Lee asks and challenge some of his answers. I start with the positive question of which elements, if any, are actually left out of the fair market value standard. I then turn to the normative question of whether failure to compensate for these elements should be regarded as unfair. I conclude that the fair market value standard does generally undercompensate condemnees in the ways that commentators have suggested, subject to some possible caveats. Nonetheless, the level of compensation that this standard provides when property is taken for public use may be just enough.

Steve Clowney