Stern on Reforming Takings Law to Fairly Compensate Common Interest Communities

Shai Stern (Bar Ilan) has posted Takings, Community and Value: Reforming Takings Law to Fairly Compensate Common Interest Communities (Brooklyn Journal of Law and Policy) on SSRN.  Here's the abstract:

This Article argues that individuals who live in highly cooperative common interest communities should — in certain instances — be entitled to additional compensation or other remedies when their property is taken through eminent domain. The exclusive takings remedy of monetary compensation equal to the fair market value of the property cannot always account for loss of communality. This Article offers guidelines for allocation of additional remedies (monetary and in-kind) that recognize such loss. This proposal is grounded in a pluralistic conception of property, which holds that the state should support individuals’ use of property as a social instrument to fulfill diverse values and beliefs. To that end, the state should balance several factors to determine whether a member of a community, or a community as a whole, should be entitled to remedies for communal loss: (1) the size and scope of the taking within the community; (2) the role, if any, of the community’s cooperation in its members’ realization of a shared conception of the good; (3) the community’s social legitimacy as determined primarily by its structural openness, that is, its members’ ability to simultaneously belong to other communities; and (4) the community’s ability to self-rehabilitate as determined by its political and economic strength. The state should also consider these factors in determining which of several types of remedies for communality loss would be most appropriate.