I'm delighted to say that Notre Dame law professor Nicole Garnett -- a good friend of mine and a top property law scholar -- is going to be guest-blogging this week.
Nicole teaches property, land use planning, local government law, and an urban property law seminar. Before going into teaching she clerked for Justice Thomas and for Judge Morris Arnold (Eighth Circuit), and worked for Institute for Justice, a top libertarian public interest law firm, which has had a particular interest in economic rights and eminent domain abuse. She has written many articles, including Save the Cities, Stop the Suburbs? (Yale Law Journal), The Neglected Political Economy of Eminent Domain (Michigan Law Review), Relocating Disorder (Virginia Law Review), Ordering (And Order In) The City (Stanford Law Review), and more.
This week, she'll blogging about her Michigan piece, The Neglected Political Economy of Eminent Domain; here is the abstract (paragraph breaks added):
This Article challenges a foundational assumption about eminent domain -- namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain.
The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners may voluntarily settle on above-market compensation during pre-condemnation negotiations.
The Article concludes by reflecting upon current efforts to reform eminent domain legislatively. Prominent legal scholars recently have proposed compensation-based reforms as an alternative to constraints on the use of eminent domain. The final Part rejects this suggestion, arguing that there are two problems, unique to takings raising public use questions, that more money cannot solve: First, high compensation levels may undermine political resistance to questionable projects; second, private takings may generate non-instrumental harms that will persist even as compensation increases.
One brief note: As you can gather from the abstract, the article reports that eminent domain abuse is not as serious a problem as some have suggested. Please keep in mind that the article comes from someone who has studied eminent domain law quite carefully, and who comes at the subject with a respect and sympathy for private property rights. Naturally, this doesn't mean that the article is correct. But it should, I hope, remind people to avoid casual assumptions of the "she must be some left-wing law professor who's just into socialism" / "she must be some big government fan who's into massive social engineering projects" variety.
Related Posts (on one page):
- Precondemnation Negotiations
- Replacement, not Market, Value
- Do Takers Avoid "High Subjective Value" Properties or Just Properties Owned by the Politically Powerful?
- Takers May Minimize Undercompensation by Not Taking High-Value Properties
- What Undercompensation Problem?
- Nicole Garnett, Guest-Blogging About Eminent Domain: