Property Rights and Eminent Domain

Property Rights and Eminent Domain
Author: Ellen Frankel Paul
Publisher: Routledge
Total Pages: 240
Release: 2017-09-29
Genre: Law
ISBN: 1351496263

In a country built on the institution of private property, property-owner rights have been under attack. By arguing that private property is a fundamental liberty whose protection deserves the highest priority, Ellen Frankel Paul challenges one of the dominant trends of the past half century: the erosion of property rights via zoning and land use restrictions, carried on by government exercising its "police power" or promoting "the public interest." Paul begins by examining the arguments of environmentalists in support of land-use legislation, and explores a few particularly troubling examples of the exercise of eminent domain and police powers. She traces the philosophical arguments for the two powers as well as their tortuous judicial history, the meaning of property rights and investigates how previous thinkers have defended these rights is detailed, and Paul suggests a more adequate defense for them. In the concluding portion of the book, the very legitimacy of eminent domain is questioned and the author offers recommendations for its reform. This analysis is wide in scope and makes creative use of historical, legal, economic, and philosophic methodologies. It not only gives an account of the present power regulations on land, but also provides an exhaustive history of the development of the law in these two areas and of the philosophical ideas of the thinkers who helped shape this process. This book is distinctive because it places a theory of the just acquisition of property at the heart of the answer to the question of the extent to which governments can rightfully exercise the powers of eminent domain and police. "Amazingly, in a country built on the institution of private property, the right to property in land has been under increasing assault, and has seldom been defended. Paul's book--by arguing that private property is a fundamental liberty whose protection deserves the highest priority--is a major step toward filling the void."--Robert Hessen, Stanford University

Takings

Takings
Author: Richard A. Epstein
Publisher: Harvard University Press
Total Pages: 377
Release: 2009-07-01
Genre: Law
ISBN: 0674036557

If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance. Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind? Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.

Before Eminent Domain

Before Eminent Domain
Author: Susan Reynolds
Publisher: Univ of North Carolina Press
Total Pages: 187
Release: 2010
Genre: Law
ISBN: 0807833533

In this concise history of expropriation of land for the common good in Europe and North America from medieval times to 1800, Susan Reynolds contextualizes the history of an important legal doctrine regarding the relationship between government and the in

Private Property and Public Power

Private Property and Public Power
Author: Deborah Lynn Becher
Publisher:
Total Pages: 0
Release: 2014
Genre: Law
ISBN: 9780199322541

News media reports on eminent domain often highlight outrage and heated protest. But these accounts, Debbie Becher finds, obscure a much more complex reality of how Americans understand property. Private Property and Public Power presents the first comprehensive study of a city's acquisitions, exploring how and why Philadelphia took properties between 1992 and 2007 for private redevelopment. Becher uses original data-collected from city offices and interviews with over a hundred residents, business owners, community leaders, government representatives, attorneys, and appraisers-to explore how eminent domain really works. Surprisingly, the city took over 4,000 private properties, and these takings rarely provoked opposition. When conflicts did arise, community residents, businesses, and politicians all appealed to a shared notion of investment to justify their arguments about policy. It is this social conception of property as an investment of value, committed over time, that government is responsible for protecting. Becher's findings stand in stark contrast to the views of libertarian and left-leaning activists and academics, but recognizing property as investment, she argues, may offer a solid foundation for more progressive urban policies.

Taking of Property

Taking of Property
Author: United Nations Conference on Trade and Development
Publisher:
Total Pages: 94
Release: 2000
Genre: Law
ISBN:

Examination of the concept of "takings" in the context of international law and international investment agreements. It is an analysis of the law relating to the takings of foreign property by host countries and of the clauses International Investment Agreements' seeking to provide protection against such takings. It deals with the development of the law and considers both what possible protection against governmental interference can be given by international instruments and under what conditions and in which manner a State retains, under international law, the freedom to take action that may affect foreign property in the interests of its economic development.

The Grasping Hand

The Grasping Hand
Author: Ilya Somin
Publisher: University of Chicago Press
Total Pages: 369
Release: 2015-05-28
Genre: Law
ISBN: 022625674X

In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution—even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market. In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed. Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.

Private Property, Community Development, and Eminent Domain

Private Property, Community Development, and Eminent Domain
Author: Professor Robin Paul Malloy
Publisher: Ashgate Publishing, Ltd.
Total Pages: 348
Release: 2013-02-28
Genre: Law
ISBN: 1409496066

The contributors in this volume address the fundamental relationship between the state and its citizens, and among the people themselves. Discussion centers on a recent decision by the United States Supreme Court in the case of Kelo v. City of New London. This case involved the use of eminent domain power to acquire private property for purposes of transferring it by the State to another private party that would make "better" economic use of the land. This type of state action has been identified as an "economic development taking". In the Kelo case, the Court held that the action was legal within provisions of the US Constitution but the opinion was contentious among some of the Justices and has been met with significant negative outcry from the public. The Kelo case and the public debate arising in its aftermath give cause to assess the legal landscape related to the ability of government to fairly balance the tension between private property and the public interest. The tension and the need to successfully strike a balance are not unique to any one country or any one political system. From the United States to the United Kingdom, to the People's Republic of China, property and its legal regulation are of prime importance to matters of economic development and civic institution building. The Kelo decision, therefore, explores a rich set of legal principles with broad applicability.