What is Eminent Domain?

Eminent domain is the power granted local, state, and federal governments under the Takings Clause of the 5th Amendment. This clause allows the various levels of government to take away property from private owners under certain conditions. Generally, the taking must be for a public purpose and the government must provide just compensation to the landowner for the taking. A taking refers to a physical seizure of the land as well as unduly burdening an individuals use and enjoyment of her property.

• Note: An owner whose land is being taken may challenge the action in civil court. Generally, the landowner must show that the taking is not for a public purpose or that she was not given just compensation.
• Example: If the state builds a highway that brings traffic into someones front yard, this would likely be a taking. The individuals ability to use and enjoy her property is diminished by proximity of the traffic.

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Discussion: How do you feel about the ability of the government to take a persons land? Does it affect your opinion that this right is expressly included in the Constitution? Why or why not? Does your opinion about this authority vary depending on whether the governmental authority is the federal, state, or local government? What standard should apply when determining what constitutes a public purpose?

Practice Question: Melinda owns a small farm on the edge of town. The local township is in negotiations with Save-Mart, Inc., to build a new store in the town. Save-Mart has identified Melinda's farm as the perfect location. Melinda is unwilling to sell the land. What are the options for the township with regard to Melinda's property?

• Eminent domain refers to the power of the government to take private property and convert it into public use. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners. The government must adequately compensate the owner. See Kohl v United States, 91 U.S 367 (1875). An owner who feels that the government is unjust in taking their land and that the intended for public use, they can bring a civil action against the Government. See the decision in Kelo v City of New London, Connecticut, 545 U.S 469 (2005) https://www.law.cornell.edu/wex/eminent_domain

Academic Research on Eminent Domain

• Humbach, John A., Constitutional Limits on the Power to Take Private Property: Public Purpose and Public Use (May 28, 2009). Oregon Law Review, Vol. 66, p. 547, 1988. Available at SSRN: https://ssrn.com/abstract=1411081 
• Shavell, Steven, Eminent Domain versus Government Purchase of Land Given Imperfect Information about Owners' Valuations (October 2007). Harvard Law and Economics Discussion Paper No. 598. Available at SSRN: https://ssrn.com/abstract=1023100 or http://dx.doi.org/10.2139/ssrn.1023100 
• Dagan, Hanoch, Eminent Domain and Regulatory Takings: Towards a Unified Theory (October 31, 2016). Available at SSRN: https://ssrn.com/abstract=2861844 or http://dx.doi.org/10.2139/ssrn.2861844 
• Mossoff, Adam, The Death of Poletown: The Future of Eminent Domain and Urban Development after County of Wayne V. Hathcock. Michigan State Law Review, p. 837, 2004; MSU Legal Studies Research Paper No. 03-02 . Available at SSRN: https://ssrn.com/abstract=775885 
• Sandefur, Timothy, The 'Backlash' so Far: Will Americans Get Meaningful Eminent Domain Reform?. Michigan State Law Review, 2006. Available at SSRN: https://ssrn.com/abstract=868539 
• Calandrillo, Steve, Eminent Domain Economics: Should 'Just Compensation' Be Abolished, and Would 'Takings Insurance' Work Instead? (August 1, 2003). Ohio State Law Journal, Vol. 64, No. 2, pp. 451-530 (2003). Available at SSRN: https://ssrn.com/abstract=693042 
• Saxer, Shelley Ross, Eminent Domain, Municipalization, and the Dormant Commerce Clause (August 19, 2009). University of California Davis Law Review, Vol. 38, 2004-2005. Available at SSRN: https://ssrn.com/abstract=1458070 
• Sandefur, Timothy, A Natural Rights Perspective on Eminent Domain in California: A Rationale for Meaningful Judicial Scrutiny of Public Use. Southwestern University Law Review, Vol. 32, p. 569, 2003. Available at SSRN: https://ssrn.com/abstract=649864 
• Mishra, Binod, Law of Eminent Domain and New Land Acquisition Act (January 9, 2015). Available at SSRN: https://ssrn.com/abstract=2547442 or http://dx.doi.org/10.2139/ssrn.2547442