Retracted Article Four: Eminent Domain: in Theory, it Makes Good Cents.

Neil, Benjamin A. (2012) "Eminent Domain: In Theory, it Makes Good Cents", Journal of Academic and Business Ethics, 5: 1-9. [This article has been withdrawn by the journal]

Link to original article: http://web.archive.org/web/20120511142618/http://aabri.com/manuscripts/11902.pdf

Neil, page 2	What is the history of Eminent Domain?
By definition, the concept of eminent domain is not new. It has existed since biblical times, when King Ahab of Samaria offered Naboth compensation for Naboth’s vineyard. In 1789, France officially recognized a property owner’s right to compensation for taken property, in the French Declaration of Rights of Man and of the Citizen, which reads, “Property being an  inviolable and sacred right no one can be deprived of it, unless the public necessity plainly demands it, and upon condition of a just and previous indemnity.”	The concept of eminent domain is not new. It has existed since biblical times when King Ahab of Samaria offered Naboth compensation for Naboth's vineyard. In 1789 France officially recognized a property owner's right to compensation for taken property in the French Declaration of the Rights of Man and of the Citizen which reads "Property being an inviolable and sacred right no one can be deprived of it unless the public necessity plainly demands it and upon condition of a just and previous indemnity."
Neil, page 2	Robert C. Bird (2010), “REVIVING NECESSITY IN EMINENT DOMAIN”, Harvard Journal of Law & Public Policy, 33:  239-82, at page 240.
In 1625, Hugo Grotius, the Dutch jurist credited with coining the phrase “eminent domain”, described “extreme necessity” as one condition under which the State may alienate or destroy private property for a public purpose.[1] Note that reference [1] is to: Nichols on Eminent Domain Section 1.12 [1] (Julius L. Sackman ed., 3d. ed. 2007).	In 1625, Hugo Grotius, the Dutch jurist credited with coining the phrase “eminent domain,” described ”extreme necessity” as one condition under which the State may alienate or destroy private property for a public purpose.[6] Note that reference [6] is to 6. 1 NICHOLS ON EMINENT DOMAIN § 1.12[1] (Julius L. Sackman ed., 3d ed. 2007) (quoting HUGO GROTIUS, DE JURE BELLI ET PALIS).
Neil, page 2	Geoffrey T. Stewart, et al, The Influence of Kelo v. City of New London, Connecticut on the Use of Eminent Domain in Place Marketing and Economic Development, The Marketing Management Journal, Volume 18, Issue 2, Pages 179-190 (2008). [Neil correctly provides the source, but does not indicate when he is quoting directly from it]
The Fifth Amendment requires that private property be taken only when three requirements are met. It must be taken (1) by a procedure that grants due process of law to those whose property is to be taken, (2) payment of just compensation must be made for that which is taken, and (3) it must be taken for a public purpose.[2] Note that reference [2] is to: Geoffrey T. Stewart, et al, The Influence of Kelo v. City of New London, Connecticut on the Use of Eminent Domain in Place Marketing and Economic Development, The Marketing Management Journal, Volume 18, Issue 2, Pages 179-190 (2008).	The Fifth Amendment of the U.S. Constitution requires that private property be taken only when three requirements are met. It must be taken (1) by a procedure that grants due process of law to those whose property is to be taken, (2) payment of just compensation must be made for that which is taken, and (3) it must be taken for a public purpose.
Neil, page 2	The Free Library. Eminent domain.
The power of eminent domain was created to authorize the government or the condemning authority, called the condemnor, to conduct a compulsory sale of property for the common welfare, such as health or safety. Just compensation is required, in order to ease the financial burden incurred by the property owner for the benefit of the public	The power of eminent domain was created to authorize the government or the condemning authority, called the condemnor, to conduct a compulsory sale of property for the common welfare, such as health or safety. Just compensation is required, in order to ease the financial burden incurred by the property owner for the benefit of the public.
Neil, page 2-3	Dick M. Carpenter and John K. Ross (2009) “Testing O’Connor and Thomas: Does the Use of Eminent Domain Target Poor and Minority Communities?” Urban Studies, 46(11): 2447-2461, at page 2447.
Prior to the post-World War II era, the power of eminent domain had been limited to taking property for schools, roads and other unambiguous public uses. It had gradually expanded, but the Kelo decision marked the first time the U.S. Supreme Court approved eminent domain with the sole justification of economic development.[5] Note that source [5] is Kmiec, D.W. (2007) Hitting home: the Supreme Court earns public notice opining on public use, Univ. of Penna. Journal of Constitutional Law, 9, pp.501-543.	Prior to the post-World- War-II era, the power of eminent domain had been limited to taking property for schools, roads and other unambiguous public uses. It had gradually expanded, but the Kelo decision marked the first time the US Supreme Court approved eminent domain with the sole justification of economic development (Kmiec, 2007).
Neil, page 3	The Free Library. Eminent domain due process.
In the wake of the Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), state legislatures, academics, and activists all expressed their concern for the status of property rights. In the face of the ever impending threat of the government’s eminent domain power, Kelo seemed to stand for the sweeping proposition that private property could be condemned by a public entity whenever such an action was economically beneficial. A swell of statutes and scholarships quickly followed, suggesting that additional procedures should be put in place to curb potential governmental abuse of the taking power. On the legislative front, many states altered their eminent domain statutes or amended their constitutions to ensure that economic development could not serve as a legitimate basis for exercising the state’s eminent domain power.6	In the wake of the Supreme Court's decision in Kelo v. City of New London, (1) state legislatures, academics, and activists all expressed their concern for the status of property rights. In the face of the ever impending threat of the government's eminent domain power, Kelo seemed to stand for the sweeping proposition that private property could be condemned by a public entity whenever such an action was economically beneficial. A swell of statutes and scholarship quickly followed, suggesting that additional procedures should be put in place to curb potential governmental abuse of the takings power. On the legislative front, many states altered their eminent domain statutes or amended their constitutions to ensure that economic development could not serve as a legitimate basis for exercising the state's eminent domain power
Neil, page 3	Hudson, D. Zachary, (2010) “Eminent Domain Due Process” The Yale Law Journal, Vol. 119, No. 6, at page 1282.
Some commentators proposed that states impose additional transparency requirements to ensure that the processes used to determine whether to exercise the eminent domain power were open to the public.[7] Others suggested that local government actors voluntarily adopt rules to make the exercise of the eminent domain power procedurally more difficult.[8] Still others have argued that regardless of what level of government requires it, additional process is necessary so that the judiciary can provide a check on the use of eminent domain.[9] Note references are to: 7 See, e.g. Patience A. Crowder, “Ain’t No Sunshine”: Examining Informality and State Open Meetings Acts as the Anti-Public Norm in Inner-City Redevelopment Deal Making, 18 J. Affordable Housing & Community Dev. L. 113 (2008) (discussing transparency in making decisions about land use). 8 See, e.g., Christopher Serkin, Local Property Law; Adjusting the Scale of Property Protection, 107 Colum. L. Rev. 883, 905 (2007) (outlining various proposals responding to the Kelo decision). 9 See, Kristi M. Burkard, No More Government Theft of Property! A Call to Return to a Heightened Standard of Review After the United States Supreme Court decision in Kelo v. City of New London, 27 Hamline J. Pub. L. & Pol’y 115, 150 (2005);	Some commentators proposed that states impose additional transparency requirements to ensure that the processes used to determine whether to exercise the eminent domain power were open to the public.3 Others suggested that local government actors voluntarily adopt rules to make the exercise of the eminent domain power procedurally more difficult.4 Still others have argued that regardless of what level of government requires it, additional process is necessary so that the judiciary can provide a check on the use of eminent domain.5 References correspond to: 3. See, e.g., Patience A. Crowder, “Ain’t No Sunshine”: Examining Informality and State Open Meetings Acts as the Anti-Public Norm in Inner-City Redevelopment Deal Making, 18 J. AFFORDABLE HOUSING & COMMUNITY DEV. L. 113 (2008) (discussing transparency in making decisions about land use). 4. See, e.g., Christopher Serkin, Local Property Law: Adjusting the Scale of Property Protection, 107 COLUM. L. REV. 883, 905 (2007) (outlining various proposals responding to the Kelo decision). 5. See Kristi M. Burkard, No More Government Theft of Property! A Call To Return to a Heightened Standard of Review After the United States Supreme Court Decision in Kelo v. City of New London, 27 HAMLINE J. PUB. L. & POL’Y 115, 150 (2005); Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 MICH. L. REV. 101, 111 (2006).
Neil, page 3	Robert C. Bird (2010), “REVIVING NECESSITY IN EMINENT DOMAIN”, Harvard Journal of Law & Public Policy, 33:  239-82, at page 240.
At first glance, one would think that much reform of eminent domain has already been completed. Kelo v. New London, 545 U.S. 469 (2005) brought the topic of eminent domain generally, and of public use specifically, to the forefront of public consideration.[10] Quickly disseminated through mainstream media, Kelo allowed many lay people to learn about eminent domain for the first time.[11] Although the Kelo case relied upon fifty-year old precedent regarding public use and arguably did not change the law.[12] To most of the public, the decision was novel and shocking. Citizens viewed the policy as an unwarranted intrusion into cherished ownership rights.[13]	At first glance, one would think that much reform of eminent domain has already been completed. Kelo v. City of New London78 brought the topic of eminent domain generally, and public use specifically, to the forefront of public importance. Kelo provoked a strong reaction in the public mind.[79] Quickly disseminated through mainstream media, Kelo allowed many laypeople to learn about eminent domain for the first time.[80] Although the Kelo case relied upon fifty-year old precedent regarding public use and arguably did not change the law,[81] to most of the public the decision was a novel and shocking one. Citizens viewed the policy as an unwarranted intrusion into cherished ownership rights.[82]
Neil, page 4	Hoyman, Michele M.; McCall, Jamie R. “'Not Imminent in My Domain!' County Leaders' Attitudes toward Eminent Domain Decisions”, Public Administration Review. Nov/Dec2010, Vol. 70 Issue 6, p885-893, at page 886. [Note that Neil does reference this source, but he does not indicate when he is quoting directly from it]
Although seizure methods, compensation amounts, and even the terms used to refer to eminent domain may vary, many governments have equivalent powers to eminent domain. For example, in India, the government granted itself wide authority to seize land for government purposes. In the United Kingdom, both England and Wales term the action “compulsory purchases”, allowing the government seizure of property in exchange for compensation.[14] Note that source [14] is: Michele M. Hoyman, “Not Imminent in My Domain!” County Leaders Attitudes toward Eminent Domain Decisions, Public Administration Review, November/December (2010) p. 886.	Although seizure methods, compensation amounts, and even the terms used to refer to eminent domain may vary, many governments have equivalent powers to eminent domain (Adriaanse 1956). For example, in India, the government granted itself wide authority to seize land for government purposes (Sarkar 1998). In the United Kingdom, both England and Wales term the action “compulsory purchases,” allowing for government seizure of property in exchange for compensation (Denyer-Green 2006).
Neil, page 5	Somin (2007) “Is Post-Kelo Reform Bad for the Poor?” Northwestern University Law Review : Colloquy.
Professor David Dana, in his essay published in the Northwestern University Law Review, suggests that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for “economic development,” but allow the condemnation of land on which poor people live under the guise of all alleviating “blight”.21	In a recent article in the Northwestern University Law Review Colloquy,[1] Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for "economic development," but allow the condemnation of land on which poor people live under the guise of alleviating "blight."  This, he claims, results in reform laws that "privilege[] the stability of middle-class households relative to the stability of poor households" and "express[] the view that the interests and needs of poor households are relatively unimportant."[2]
Neil, page 5	SUPREME COURT'S KELO DECISION AND POTENTIAL CONGRESSIONAL RESPONSES (2005)
Municipalities often look for areas with low property values when deciding where to pursue redevelopment projects because it costs the condemning authority less and thus the state or local government gains more, financially, when they replace areas of low property values with those with higher property values. When the goal is to increase the area’s tax base, it only makes sense that the previous low-income residents will not be able to remain in the area, This is borne out not only by common sense, but also be statistics: one study in the mid-1980’s showed that 86% of those relocated by an exercise of the eminent domain power were paying more rent at their new residences, with the median rent almost doubling.[23] Note that source [23] is to Gans.	Lastly, municipalities often look for areas with low property values when deciding where to pursue redevelopment  projects, because it costs the condemning authority less and  thus the State or local governments gain more financially when they replace areas of low property values with those with higher property values. Thus, even if you dismiss all other motives, allowing municipalities to pursue eminent domain for private development, as was upheld by the U.S. Supreme Court in Kelo, it will clearly have a disparate impact on African Americans and other racial and ethnic minorities in our country. … When the goal is to increase the area's tax base, it only makes sense that the previous low-income residents will not be able to remain in the area. This is borne out not only by common sense, but also by statistics: one study for the mid-1980's showed that 86% of those relocated by an exercise of the eminent domain power were paying more rent at their new residences, with the median rent almost doubling.[5] Note that source [5] is: Herbert J. Gans, The Urban Villagers: Group and Class in the life of Italian Americans, p.380.
Neil, page 6	Hillary Shelton, Statement Before Senate Judiciary Committee, September 20, 2005. [Note that while Neil provides the correct source he does not indicate when he is quoting directly from this]
The expansion of eminent domain to allow the government or its designee to take the property simply by asserting that it can put the property to a higher use will systemically sanction transfers from those with fewer resources to those with more.32 The vast disparities of African Americans or other racial or ethnic minorities that have been removed from their homes due to eminent domain actions are well documented.[33] Note that source [33] is to Shelton.	The expansion of eminent domain to allow the government or its designee to take property simply by asserting that it can put the property to a higher use will systemically sanction transfers from those with less resources to those with more. The history of eminent domain is rife with abuse specifically targeting minority neighborhoods. Indeed, the displacement of African Americans and urban renewal projects are so intertwined that "urban renewal" was often referred to as "Black Removal." The vast disparities of African Americans or other racial or ethnic minorities that have been removed from their homes due to eminent domain actions are well documented.
Neil, page 6	Dick M. Carpenter and John K. Ross (2009) “Testing O’Connor and Thomas: Does the Use of Eminent Domain Target Poor and Minority Communities?” Urban Studies, 46(11): 2447-2461, at page 2451. [Note that Neil does reference the correct source, but does not indicate when he is quoting directly from it]
The notion that states would use eminent domain to take properties in stable neighborhoods populated by middle-class residents to some would seem to defy logic. Since contemporary eminent domain for private development is largely oriented towards improving the local tax-base, the most attractive way to do so is to remove the low tax-revenue yielding use and change it to a high tax-revenue one. Thus, the bigger difference in revenue yield provides a more attractive prospect for eminent domain. Removing minority residents in the process, who would tend to be poorer than whites, can then be said to be mere chance rather than design, and the social implications are rationalized away. Using this logic, it appears irrational to pursue areas inhabited by the middle class or the wealthy.[35] Note that source [35] is Carpenter and Ross.	The notion that states would use eminent domain to take properties in stable neighbourhoods populated by middle-class residents to some would seem to defy logic. Since contemporary eminent domain for private development is largely oriented to- wards improving the local tax-base, the most attractive way to do so is to remove the low tax-revenue-yielding use and change it to a high tax-revenue one. Thus, the bigger difference in revenue yield provides a more attractive prospect for eminent domain. Removing minority residents in the process, who tend to be poorer than Whites, can then be said to be mere chance rather than design, and the social implications are rationalised away. Using this logic, it appears irrational to pursue areas inhabited by the middle class or the wealthy.
Neil, page 7	Pfizer and Kelo's Ghost Town, WSJ Online, November 11, 2009.
Kelo’s silver lining has been that it transformed eminent domain from an arcane government power into a major concern for voters who suddenly wonder if their own homes are at risk. According to the Institute for Justice, which represented Susette Kelo, 43 states have since passed laws that place limits and safeguards on eminent domain, giving property owners greater security in their homes. Note that source [43] is D. Zachary Hudson, Eminent Domain Due Process, The Yale Law Journal, Vol. 119, @ 1286 (2010).	Kelo's silver lining has been that it transformed eminent domain from an arcane government power into a major concern of voters who suddenly wonder if their own homes are at risk. According to the Institute for Justice, which represented Susette Kelo, 43 states have since passed laws that place limits and safeguards on eminent domain, giving property owners greater security in their homes.
Neil, page 7	Pfizer and Kelo's Ghost Town, WSJ Online, November 11, 2009. [Neil provides correct source, but does not indicate that he is quoting directly from it]
State courts have also held local development projects to a higher standard than what prevailed against the condemned neighborhood in New London. If there is a lesson from Connecticut’s misfortune, it is that economic development that relies on the strong arm of government will never be the kind to create sustainable growth.37 Note that source 37 is: The Wall Street Journal, Nov. 11, 2009, p. 20.	State courts have also held local development projects to a higher standard than what prevailed against the condemned neighborhood in New London. If there is a lesson from Connecticut's misfortune, it is that economic development that relies on the strong arm of government will never be the kind to create sustainable growth.
Neil, page 7	Robert C. Bird (2010), “REVIVING NECESSITY IN EMINENT DOMAIN”, Harvard Journal of Law & Public Policy, 33:  239-82, at page 280.
The underlying issue in eminent domain today is about not only economic development but institutional choice as well.[38] Courts struggle – or should struggle – “with the question of which institutions in our society should decide what the proper limits of eminent domain are.”[39] As Justice Stevens stated, “the necessity and wisdom of using eminent domain to promote economic development are currently matters of legitimate public debate.”[40]	The underlying issue in eminent domain today is about not only economic development, but institutional choice as well. (214) Courts struggle--or should struggle--"with the question of which institutions in our society should decide what the proper limits of eminent domain are." (215) As Justice Stevens stated, "the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate." (216)
Neil, page 7	Lopez, Edward J., Jewell, R. Todd and Campbell, Noel D., Pass a Law, Any Law, Fast! State Legislative Responses to the Kelo Backlash (June 17, 2008). Available at SSRN: http://ssrn.com/abstract=1022385 or http://dx.doi.org/10.2139/ssrn.1022385, at page 2. [Note that Neil does provide the correct source—at least at the end of the second paragraph--but he does not indicate when he is quoting directly from it]
However, these new eminent domain laws do not necessarily increase the protection of individual rights against economic development takings. The Supreme Court left much protection to the states’ political systems, which are run by fallible policymakers subject to swells of public opinion and pressure by organized interests. Since economic development takings are a form of wealth transfer that attracts political competition, rational policymakers balance competing interests according to their relative abilities to exert political pressure. Whether these state laws further restrict eminent domain, and in what manner, are empirical questions.[41] Note that source [41] is Edward J. Lopez, R. Todd Jewell, Noel D. Campbell. Pass a Law, Any Law, Fast!: State Legislative Responses to the Kelo Backlash. Review of Law and Economics, (2009) Vol 5, Issue 1, pp 102-135.	However, these new eminent domain laws do not necessarily increase protection of individual rights against economic development takings. The Supreme Court left such protection to the states’ political systems, which are run by fallible policymakers subject to swells of public opinion and pressure by organized interests. Since economic development takings are a form of wealth transfer that attract political competition, rational policymakers balance competing interests according to their relative abilities to exert political pressure. Whether these state laws further restrict eminent domain, and in what manner, are empirical questions.
Neil, page 8	Amanda Williams “Examining the Current Abuse of the Doctrine of Eminent Domain” Lethbridge Undergraduate Research Journal, 2009.
Controversy revolving around eminent domain is as strong today as it was over 200 years ago – and for good reason. What is crucial now is to stop this slippery slope of abuse before it goes any further. Following the Kelo decision, a public outcry led dozens of state legislatures to draft bills that would further limit the ability of the state governments to appropriate private property.	Controversy revolving around eminent domain is as strong today as it was over 200 years ago – and for good reason. What is crucial now is to stop this slippery slope of abuse before it goes any further. What started off as one man losing his property under the misinterpretation of the Public Use clause in the Berman case, eventually led to fifteen property owners losing their property simply to make room for private real-estate development; not a public use. Following the Kelo decision, a public outcry led dozens of state legislatures to draft bills that would further limit the ability of the government to appropriate private property.