A law journal article worth reading (short, not too many distracting footnotes) on takings theory.
In Imperfect Takings, 46 Fordham Urban Law Journal 130 (2019), Professor Shai Stern writes about what he calls the “three safeguards” in eminent domain (due process, public use, and mandatory compensation), and how to evaluate the legality of takings when all three are not accomplished perfectly. He argues that his balancing model “allows the government to exercise its expropriation power properly even in imperfect circumstances, while still sufficiently protecting property owners and society from abuse of that power.”
Our thinking: in our experience, none of the bars for the three safeguards are all that high, so we are not convinced this model is new. Because this is what courts already do, no? In Kelo for example, the majority mostly shrugged its shoulders at a stricter reading of the public use requirement because it was convinced that the procedures which led up to the taking were comprehensive (what we called the Euclid-ization of eminent domain), and, you know, Ms. Kelo was going to get fairly compensated. As Professor Stern writes:
Evaluating Suzette Kelo’s case through the interplay model, it is evident that the procedural and fairness safeguards met the requisite high bar that resulted from weakening the public use safeguard. An examination of the Court’s ruling in Kelo reveals that the Court considered and implemented—even if unintentionally—the interplay model proposed in this Article. The reason that the Court approved New London’s taking, even though the public use requirement was set at a relatively low threshold, was the expropriation’s fulfillment of the other two requirements of the interplay model. Public use, though compromised, was not eviscerated, and the other two safeguards were employed scrupulously.
Id. at 153.
But should these “factors” be applied by balancing, offsetting a deficiency in one with more of the other? Isn’t that just a recipe for pretext? Why not all three, strictly applied? Or is it simply a matter that all takings are imperfect, and to raise the bar on any of the three factors would make taking property much more difficult?
Download the article here from Fordham, or here from SSRN.