Some Eminent Domain Issues Post-Kelo:

Ben Barros has a post on Nicole Garnett's new paper on Eminent Domain post-Kelo as well as some of the vexing empirical issues embedded in Eminent Domain disputes.

To my mind, I haven't really been persuaded by the "Just Write Them A Check" approach to Eminent Domain, which basically says forget about the Public Use Clause and simply ensure Just Compensation. As a logical matter, if that approach is valid with respect to the Takings Clause, why not apply it to the remainder of the Constitution? If ex post compensation (a liability rule) is supposedly a perfect substitute for an ex ante injunction (a property rule), why not apply it across the board? The logic of the argument seems to imply that the government could simply search your home without cause, and then simply write you a check for the inconvenience caused by the intrusion. As Nicole's paper suggests, there are non-instrumental harms present with respect to constitutional rights, and they seem to me to apply in both contexts. I honestly don't see why I only get constitutional protection in the form of a property from a search of my home but not the tearing down of my home for the benefit of a private developer (as Justice Thomas observed in his dissent).


A reader called to my attention that for some reason, this post doesn't permit Comments. I didn't intend that and have tried to correct it, but for some reason am unable to do so. I apologize to anyone who sought to add a Comment but was unable to do so.