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Eminent domain, Public use, Takings

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Sturm College of Law


Part I summarizes the two private entities thattraditionally have been conferred the power to take private property for their own private use: (1) natural resource developers and (2) common carriers involved in, andresponsible for, our country’s transportation, storage, and distribution (TS&D) system for energy infrastructure—pipelines, electrical transmission lines, and rail lines. Part II considers the traditional rationale for those private takings, which typically relies on some version ofthe notion thatthe public atlarge may, or will, eventually benefit from this private exercise of eminent domain. Part III explores the four central problems associated with these kinds of private takings: (1) the potential for inefficiencies and abuses when state laws distrust normal private market allocations of resources and instead rely on private party condemnation decisions to create a public benefit;(2)the typical absence of meaningful judicial review; (3)the failure to take into account countervailing interests when authorizing private parties to determine the best use of another’s private property; and (4)the inability oftraditional calculations of“just compensation” to truly compensate a private party whose property has been taken by another private party. Part IV offers suggestions on how to reform this particular class of private takings.

Publication Statement

Originally published as Jan G. Laitos, The Strange Career of Private Takings of Private Property for Private Use, 5 BRIGHAM-KANNER PROP. RTS. CONF. J. 125 (2016).

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