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“In Kind” Just Compensation

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8 Responses

  1. KipEsquire says:

    I think you’ve set a new record for “just not getting it.”

    Kelo was in no way whatsoever a just compensation case. It was, wholly and exclusively, a public use case.

    Some people, like the law itself, distinguish between market value and sentimental value. Not everyone “has his price,” especially for their homes.

    And besides, suppose NLDC had been willing to pay stratospheric sums for the homes, and suppose (against all likelihood) that each and every family said yes. So now we’re talking about extracting, not property, but taxes from others to give to the Suzette Kelo’s of the world, not to mention the Pfizers. Great condemnation, if you can get it…

    Here’s a radical idea: If the property was worth so much in the first place, then how about Pfizer paying it, through private negotiation, rather than the taxpayers of New London?

    And how about the government going back to doing what it’s supposed to do: protecting property rights and abiding by the plain text of the Fifth Amendment?

  2. Eduardo Penalver says:

    Kip– You say: “Kelo was in no way whatsoever a just compensation case. It was, wholly and exclusively, a public use case.”

    No shit. Take a deep breath, and read the post again. I’m not talking about Kelo (except in the most tangential sort of way) or public use. I’m just asking why states don’t offer this sort of compensation more routinely. Sheesh.

  3. KipEsquire’s vituperation aside, Eduardo, I agree with you that many of the fairness issues that are important can be abated with creative compensation techniques. One salient fact that those condemning eminent domain for economic development seem to ignore is that the vast majority of home-owners in Kelo agreed to the buy-outs and did not join the litigation. I recently read the amicus briefs submitted in Kelo in support of Kelo’s position. It was fascinating to see how often the same heart-wrenching anecdocates were repeated. If those most opposed to the use of eminent domain for economic development purposes can only come up with a few examples of people aggrieved — is the problem as fundamental as is suggested?

  4. Eduardo Penalver says:

    Rachel — One interesting thing about those sad stories is that they often seem to have little to do with the use to which the property is put but instead with the losses imposed on property owners (i.e., just compensation). I have no doubt that tragic stories are not uncommon in large-scale condemnations, whatever the use.

    Now, to be clear, I don’t think that these tragic stories are wholly unrelated to public use questions either — I’m sure it’s even more offensive to have suffer the loss or your property (and community) when you can’t understand the public interest at issue. And limiting the power of eminent domain through a robust public use doctrine would probably just reduce the sheer numbers of involuntary displacements. But, as the residents of East Tremont can I’m sure attest, knowing that your community has been displaced for a classic public use (in their case, the Cross Bronx Expressway) instead of economic developent doesn’t make things hunky dory. I think some of these in-kind compensation schemes might help, however public use is defined.

  5. Ben Barros says:

    Lack of government flexibility and creativity may also contribute to the Measure 37 backlash (or lack thereof) we were discussing a while back. But I’d think lack of flexibility might be an even bigger problem in the case of eminent domain, where the government has great legal and procedural power to impose its will on the property owners.

  6. But, as the residents of East Tremont can I’m sure attest, knowing that your community has been displaced for a classic public use (in their case, the Cross Bronx Expressway) instead of economic developent doesn’t make things hunky dory.

    No, it doesn’t. But there’s a different reaction to the former, because one can think, “Well, they do need to build a road somewhere, and I just got unlucky.” Whereas in the New London situation, it’s just, “This private developer wants my property and is better connected politically than I am, so he gets the government to strongarm it from me.”

    The idea that a private corporation can take your home from you even if you won’t agree to sell it is a lot more upsetting to people than the government taking your land for a public use.

  7. Eduardo Penalver says:

    David, this post is not about public use (see above). It’s about just compensation. I did not say that the two issues are the same, just that inadequate compensation explains some of the offense people take at the state’s exercise of eminent domain, whatever the use to which the property is put. (How about this as a translation? Whatever you think of public use, inadequate compensation makes eminent domain even worse.) This is a pro-property rights position, so I’m not sure why you conservatives are so eager to find something to disagree with in this post.

  8. Eduardo,

    It is curious how hostile some readers have been to your discussion of how better to compensate owners in the eminent domain context. Perhaps some are antagonistic because upping the compensation renders the complaints seemingly less justified. Nicole Garnett’s recent article on SSRN includes the related argument that increased compensation decreases the incentive for politically challenging the use of eminent domain for economic development costs and therefore undercuts the likelihood of successful opposition. It seems that hard-core property rights folks are interested only in “ending it” rather than “mending it” — to borrow a phrase from another context.

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