Burnt Orange Report

Eminent-ly Important

By Jim Dallas

And now for something totally different, Prof. Eugene Volokh has a few words about the most important property rights case you will never hear about.

Poletown’s “economic benefit” rationale would validate practically any exercise of the power of eminent domain on behalf of a private entity. After all, if one’s ownership of private property is forever subject to the government’s determination that another private party would put one’s land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, “megastore,” or the like. Indeed, it is for precisely this reason that this Court has approved the transfer of condemned property to private entities only when certain other conditions—those identified in our pre-1963 eminent domain jurisprudence in Justice RYAN’s Poletown dissent—are present.

While I hope that this will encourage other state courts (and federal courts) to turn back the tide of governments using eminent domain to favor developers (which are forcing out homeowners so cities can build malls and such), my inner commie informs me that this could also endanger less evil uses of eminent domain, such as the Hawaii Land Reform Act and takings stemming from environmental concerns. Indeed, the organized property rights movement scares me (for about the same reason that I think religion is peachy keen but some organized religionists scare me).

On the other hand, if courts were to base there arguments on the three-pronged test in the Poletown dissent, which this case does, then it would probably benefit everybody.