Law of Eminent Domain

In the United States, the law of eminent domain allows the government to confiscate an individual's private property, impound property or seize the rights that an individual holds in a property. Although the owner receives financial compensation for the property, he or she does not have to authorize or approve the transaction.

Private property is often taken by the government for its own use or to give to other parties who will use it for public or community purposes. The most common recipients of appropriated property are utilities, railroads and other community service providers. The law of eminent domain has also been invoked in cases involving public safety.

Dutch jurist Hugo Grotius first used the term eminent domain in the 1600s. The original meaning of the term referred to cases in which personal property belonging to individuals in a society could become subject to the domain of the state. It is often believed that this would hold true most often in times of hardship in a community or country, but the law enables the confiscation of property for use by public utilities. This quality makes the law of eminent domain a topic of ongoing debate.

Several countries around the world have legislation similar to the law of eminent domain that regulates the confiscation of private property. In the United Kingdom, Ireland and New Zealand, the term is compulsory purchase. In Australia, it is called resumption or compulsory acquisition. Finally, in South Africa and Canada, this action is referred to as expropriation, a phrase also used by several states of the United States.

All of these terms technically mean the same thing and comply with the definition above. In all instances, private property can be confiscated only if the government is able and willing to compensate the citizen for the loss of property.

When the law of eminent domain is executed, the act of transferring ownership of the given property to the government is known as condemnation. In essence, the government is taking over ownership of the property. After condemnation is completed, the property is valuated and the owner is fairly compensated fairly. Owners often challenge enforcement of the law of eminent domain on the grounds that the government's justification for taking the property is outside of what would typically be considered use for public purposes. In some cases, bureaucratic issues are invoked.

The law of eminent domain can extend beyond real estate to include personal property. For example, in times of war or national emergency, government officials have the power to confiscate personal items that may be needed to defend a community or country. There have also been instances where governments have seized intangible goods, such as intellectual property (patents), confidential company knowledge and rights detailed in contracts.

In the United States, the law of eminent domain dates back to colonial times and was introduced along with common law. Initially, the government had the right to seize physical property and was not required to pay compensation for it. This may have been a result of the vast tracts of land that were available in the country at the time. The government did not believe that recompense was required, as the individual involved could easily individual to find another piece of land to suit his or her needs.

Arguments for and against the law of eminent domain arose in parallel with the development of the U.S. Constitution. James Madison held a moderate view, which was eventually instituted in the Fifth Amendment of the Constitution. The amendment stressed that highlighted that the law of eminent domain should be implemented only for just cause and with fair compensation.

Compensation is identified as the fair market value of a property. This concept has also been hotly debated, because a weak market could cause a loss for owners who were only selling under duress. This position has been taken into consideration by the government when it feels the need to implement the law of eminent domain.

Selected full-text books and articles on this topic

This Land Is Your Land, This Land Is My Land: The Property Rights Movement and Regulatory Takings
Alfred M. Olivetti Jr; Jeff Worsham.
LFB Scholarly, 2003
Supreme Neglect: How to Revive Constitutional Protection for Private Property
Richard A. Epstein.
Oxford University Press, 2008
Librarian’s tip: Part II "Physical Takings"
How Eminent Domain Ran Amok
Main, Carla T.
Policy Review, No. 133, October-November 2005
Intellectual Property and Eminent Domain: If Ever the Twain Shall Meet
Adkisson, Richard V.
Journal of Economic Issues, Vol. 36, No. 1, March 2002
Restraining Eminent Domain through Just Compensation: Kelo V. City of New London
Talley, Brett.
Harvard Journal of Law & Public Policy, Vol. 29, No. 2, Spring 2006
PEER-REVIEWED PERIODICAL
Peer-reviewed publications on Questia are publications containing articles which were subject to evaluation for accuracy and substance by professional peers of the article's author(s).
A New Take on Public Use: Were Kelo and Lingle Nonjusticiable?
Breau, David L.
Duke Law Journal, Vol. 55, No. 4, February 2006
Basic Principles of Property Law: A Comparative Legal and Economic Introduction
Ugo Mattei.
Greenwood Press, 2000
Librarian’s tip: Chap. 9 "Loss of Ownership"
Pollution and Property: Comparing Ownership Institutions for Environmental Protection
Daniel H. Cole.
Cambridge University Press, 2002
Librarian’s tip: Chap. 8 "When Property Regimes Collide: The 'Takings' Problem"
Beyond Survival: Wage Labor in the Late Twentieth Century
Cyrus Bina; Laurie Clements; Chuck Davis.
M. E. Sharpe, 1996
Librarian’s tip: Chap. 11 "Legal Challenges Against Plant Closings: Eminent Domain, Labor, and Community Property Rights"
Streets of Hope: The Fall and Rise of An Urban Neighborhood
Peter Medoff; Holly Sklar.
South End Press, 1994
Librarian’s tip: Chap. 5 "Controlling the Land through Eminent Domain"
The Anti-Rent Era in New York Law and Politics, 1839-1865
Charles W. McCurdy.
University of North Carolina Press, 2001
Librarian’s tip: "Due Process and the Eminent Domain Power" begins on p. 110
Flooding the Courtrooms: Law and Water in the Far West
M. Catherine Miller.
University of Nebraska Press, 1993
Librarian’s tip: Chap. 3 "The Power of Doctrine: Conflict among Riparians and the Exploitation of Public Necessity"
Interest Groups and Judicial Federalism: Organizational Litigation in State Judiciaries
Donald J. Farole Jr.
Praeger, 1998
Librarian’s tip: Chap. 3 "Legal Incentives in Takings Law"
Economics of the Law: Torts, Contracts, Property, Litigation
Thomas J. Miceli.
Oxford University Press, 1997
Librarian’s tip: "The Economics of Eminent Domain" begins on p. 137
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