Private takings

University of Chicago Law Review

Volumn 76, Issue 2, 2009, Pages 517-585

  Bell, Abraham ^a,b  

^a UNIVERSITY OF CONNECTICUT   (United States)

^b BAR ILAN UNIVERSITY   (Israel)

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[No Author keywords available]

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EID: 69249130471     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (438)

1. 545 US 469 (2005).
2. See, for example, Statement of Senator John Cornyn, The Protection of Homes, Small Businesses, and Private Property Act of 2005 (June 27, 2005), online at http://www.cornyn.senate.gov/doc-archive/jc-other/ PHSB%20and%20PPA%202005%20floor%20statement.pdf (visited Apr 14, 2009) (expressing shock and alarm at the Court's decision in Kelo).
3. See also generally Abraham Bell and Gideon Parchomovsky, The Uselessness of Public Use, 106 Colum L Rev 1412 (2006) (summarizing and disagreeing with criticisms of the Kelo decision).
4. See, for example, Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 331 (Harvard 1985);
5. Steven Shavell, Foundations of Economic Analysis of Law 124 (Belknap 2004).
6. For some notable exceptions, see Thomas Merrill, The Economics of Public Use, 72
7. Cornell L Rev 61, 81 (1986) (examining economic rationales behind eminent domain);
8. Saul Levmore, Securities and Secrets: Insider Trading and the Law of Contracts, 68 Va L Rev 117, 142-44 (1982) (suggesting that a private eminent domain power may be a worthy alternative to "optimal dishonesty" under certain unspecified circumstances).
9. Compare Denis J. Brion, Rhetoric and the Law of Enterprise, 42
10. Syracuse L Rev 117, 151 (1991) (analyzing occasional judicial and legislative adoption of "private eminent domain" remedies as the result of some clashes in property rights).
11. See, for example, Conaway v Yolo Water & Power Co, 266 P 944, 946 (Cal 1928) (indicating that the state or a public service corporation may use eminent domain);
12. City of Los Angeles v Aitken, 52 P2d 585, 592 (Cal App 1935) (stating that eminent domain could not be used to transfer a property interest in water from one private entity to another).
13. Kelo, 545 US at 477.
14. *1 (Federal Reserve Bank of Cleveland Working Paper No 07-13, Oct 2007), online at http://ssrn.com/abstract=1021812 (visited Apr 14, 2009) (defining private takings as takings "where local and state governments have the authority to condemn private property for private use");
15. Robert Ashbrook, Comment, Land Development, the Graham Doctrine, and the Extinction of Economic Due Process, 150 U Pa L Rev 1255, 1291 n 185 (2002) (using the term "private taking" to refer to confiscation of property "not for a public purpose, but rather for the benefit of another private entity"). I propose different terminology. As I note later in the Article, public takings for a private purpose may accurately be described as publicly mediated private takings.
16. See Part H.B. However, there are many other instances of private takings. "Private takings" has also been used more broadly to refer to coercive transfers, including quasi-contract. See Boudewijn Bouckaert and Gerrit De Geest, Private Takings, Private Taxes, Private Compulsory Services: The Economic Doctrine of Quasi-contracts, 15 Intl Rev L & Econ 463, 463 (1995) (using the term "taking" to refer to all coercive transfers). As I discuss below, my definition of private takings includes only cases where the taker is able, of her own volition, to alter property rule protection over another's property into temporary liability rule protection, and is thereafter entitled to property rule protection of her own. See Part III.A. Thus, many forms of coercive transfer do not fall under the category of private takings. See Part II.C.
17. See, for example, Holbert v St L, K C & N R Co, 45 Iowa 23, 26 (1876).
18. See, for example, Head v Amoskeag, 113 US 9, 20-21 (1885) (finding the New Hampshire Mill Act constitutional, while avoiding ruling specifically on the constitutionality of delegations of eminent domain power to private actors for public use);
19. Scudder v Trenton Delaware Falls Co, 1 NJ Eq 694, 729-30 (1832) (upholding a New Jersey statute granting a private corporation the right to condemn land for seventy mill sites along a six-mile stretch of the Delaware River).
20. See also Theodore Steinberg, Nature Incorporated: Industrialization and the Waters of New England 31-32 (Cambridge 1991) (detailing the history of the Mill Acts and suggesting that these acts "represented a more dynamic understanding of water as a form of property").
21. See, for example, Eppley v Bryson City, 73 SE 197, 197-98 (NC 1911).
22. See Part III.A.
23. Such takings have also been labeled "public-private takings." See, for example, Peter J. Kulick, Rolling the Dice: Determining Public Use in Order to Effectuate a "Public-private Taking" - A Proposal to Redefine "Public Use," 2000 Detroit Coll L 639, 642 n 8.
24. 348 US 26 (1954).
25. Id at 35-36 (holding that the government could use eminent domain powers to take property and transfer it to private developers to improve blighted urban areas).
26. 467 US 229 (1984).
27. Id at 233-34.
28. 304 NW2d 455 (Mich 1981).
29. Id atc 460.
30. Kelo, 545 US at 484. More precisely, the New London municipality delegated the power of eminent domain to the New London Development Corporation.
31. 684 NW2d 765 (Mich 2004).
32. See Bell and Parchomovsky, 106 Colum L Rev at 1418 & n 27 (cited in note 2) (indicating that forty-three states introduced legislation in 2006 limiting eminent domain to spur economic development). For a collection of reports on the proposed legislation, see Castle Coalition, Legislative Center, online at http://www.castlecoalition.org/index.php?option=com- content&task=view&id=34&Itemid=119 (visited Apr 14, 2009).
33. See, for example, Charles E. Cohen, Eminent Domain after Kelo v. City of New London. - An Argument for Banning Economic Development Takings, 29
34. Harv J L & Pub Policy 491, 543-51 (2006);
35. Epstein, Takings at 179-81 (cited in note 3).
36. See Part III.C.
37. See, for example, Richard A. Epstein, Blind Justices: The Scandal of Kelo v. New London, Opinion Journal (Wall Street Journal July 3, 2005), online at http://www.opinionjournal.com/extra/?id=110006904 (visited Apr 14, 2009) (criticizing the Supreme Court's expansion of the public use requirement).
38. See Part III.
39. See Merrill, 72 Cornell L Rev at 81 (cited in note 3).
40. Abraham Bell and Gideon Parchomovsky, Pliability Rules, 101 Mich L Rev 1, 4-5 (2002).
41. Guido Calabresi and Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv L Rev 1089, 1106-10 (1972).
42. Id at 1092.
43. Id. Calabresi and Melamed also mentioned the rarer inalienability rules, which forbid the holder to part with the entitlement altogether. See id at 1092-93.
44. See Bell and Parchomovsky, 101 Mich L Rev at 60 (cited in note 26).
45. Id. Takings thus constitute an exception to the usual pliability rule, which encompasses an articulated expectation from the very outset.
46. See, for example, Ian Ayres and J.M. Balkin, Legal Entitlements As Auctions: Property Rules, Liability Rules, and Beyond, 106
47. Yale L J 703, 750 (1996) (proposing the auction as one method of managing entitlements);
48. Lee Anne Fennell, Revealing Options, 118
49. Harv L Rev 1399, 1487-88 (2005) (discussing options as a method of managing entitlements).
50. See US Const Amend V ("[N]or shall private property be taken for public use, without just compensation.").
51. A remarkable study of the history and theoretical basis of the power of eminent domain may be found in William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash L Rev 553 (1972) (examining the development of eminent domain from the Old Testament to the modern era).
52. 1 Samuel 8:14 (King James version).
53. See 1 Kings 21:1-16 (King James version). Medieval Jewish scholars interpreted the tension between the two sources to indicate that there was, in fact, no power to take realty. Rather, the power described by Samuel was read as a limited power to use real property temporarily when required by the exigencies of war. See, for example, Maimonides, Mishneh Torah, Law of Kings 4:6, reprinted in Kings, Their Wars and the Messiah 8 (Royal College of Physicians of Edinburgh 1987) (H.M. Russell and J. Weinberg, trans). William Stoebuck was skeptical of the link between biblical law of eminent domain and modern American law. See Stoebuck, 47 Wash L Rev at 553 (cited in note 34) ("[T]here is no evidence that th[e] Biblical incident [of King Ahab's seizure of Naboth's vineyard] contributed in the slightest to the American law of eminent domain, not even in Massachusetts Bay Colony in its most God fearing days.").
54. See generally J. Walter Jones, Expropriation in Roman Law, 45 L Q Rev 512 (1929) (discussing the Romans' use of land expropriation for various purposes, including as a remedy for economic grievances).
55. Magna Carta Arts 28, 39, reprinted in Richard L. Perry and John C. Cooper, eds, Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights 11, 16, 17 (Quinn & Boden 1959).
56. For a look at the early American history of eminent domain, see generally William Michael Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L J 694 (1985).
57. See US Const Amend V.
58. See Michael W. McConnell, Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure, 76 Cal L Rev 267, 281 (1988) (discussing hermeneutic implications of the Takings Clause's exclusive application to the national government). The constitutional "just compensation" limitation on the state's power of eminent domain was eventually applied to the states via the Fourteenth Amendment.
59. See Chicago, B. & Q. R. Co v Chicago, 166 US 226, 235 (1897). However, even prior to that, state law required both just compensation and a public use for the exercise of the power of eminent domain.
60. See Harry N. Scheiber, Property Law, Expropriation, and Resource Allocation by Government: The United States 1789-1910, 33
61. J Econ Hist 232, 235 (1973). Interestingly, until 1875, the national government refrained from exercising the power of eminent domain.
62. See Kohl v United States, 91 US 367, 374 (1875).
63. See Scheiber, 33 J Econ Hist at 237-40 (cited in note 41).
64. See also Stoebuck, 47 Wash L Rev at 555 (cited in note 34).
65. See Treanor, 94 Yale L J at 694 (cited in note 39).
66. See, for example, Kohl, 91 US at 371.
67. See Hugo Grotius, Hugonis Grotii De Jure Belli et Pacis: Libri Tres 326 (Cambridge 1853) (William Whewell, trans). This appears to be the explanation for the takings power adopted by Richard Epstein. See Epstein, Takings at 331-34 (cited in note 3) (asserting that while the state qua state has no independent set of entitlements, the power of eminent domain is necessary for the state to exist as more than a "voluntary protective association").
68. See Thomas Hobbes, Leviathan 125, 225, 228 (Cambridge 1991) (Robert Tuck, ed).
69. Id at 113.
70. See M'Clenechan v Curwen, 3 Yeates 362, 366 (1802).
71. Id. A version of the colonial set-aside remains part of Pennsylvania law and is used today to justify private takings. See, for example, In re Opening Private Road, 954 A2d 57, 72 (Pa Commw Ct 2008) (holding that the Private Road Act, which permits owners of landlocked property to take rights of way to nearby roads, does not allow unconstitutional takings, because the colonial-era set-aside created "an incorporeal burden on those whose lands the private road is to traverse").
72. See Harry N. Scheiber, The Jurisprudence - and Mythology - of Eminent Domain in American Legal History, in Ellen Frankel Paul and Howard Dickman, eds, Liberty, Property and Government: Constitutional Interpretation before the New Deal 217, 222-23 (SUNY 1989).
73. Consider Oliver Wendell Holmes, Jr, The Path of the Law, 10 Harv L Rev 457, 469 (1897): It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
74. Recently, the Supreme Court expressed its disapproval of state attempts to place overly "potent [] Hobbesian stick[s] into the Lockean bundle." Palazzolo v Rhode Island, 533 US 606, 627 (2001).
75. For a more detailed discussion of the importance of stability value to the law of property, see Abraham Bell and Gideon Parchomovsky, A Theory of Property, 90 Cornell L Rev 531, 552 (2005).
76. Indeed, much of the development of Anglo-American property law was aimed at preventing the king from asserting his theoretical rights as owner over all land held by others in mere "tenancies." See A.W.B. Simpson, A History of the Land Law 47 (Oxford 2d ed 1986);
77. Richard Pipes, Property and Freedom 123 (Knopf 1999).
78. See generally Yoram Barzel, Economic Analysis of Property Rights (Cambridge 2d ed 1997).
79. See, for example, Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates 18-21, 244-54 (1961) (discussing the evolution of ad hoc property regimes within mental institutions).
80. See Hanoch Dagan, Takings and Distributive Justice, 85 Va L Rev 741, 791-92 (1999).
81. This conception should lead "liberal property" conceptualists to favor absolute limitations on the right to take property. Where "fair," the taking should be permitted, even without compensation; where "unfair," the taking should be forbidden, even with compensation. Consider Margaret J. Radin, Reinterpreting Property 136-37 (Chicago 1993) (arguing that takings jurisprudence is incompatible with current limitations on property and freedom).
82. See Epstein, Takings at 4-5 (cited in note 3) (arguing that the state can only validly exercise coercive power to prevent private aggression or to provide public goods).
83. See also Thomas W. Merrill, Book Review, Rent Seeking and the Compensation Principle, 80 Nw U L Rev 1561, 1569 (1986), reviewing Epstein, Takings (cited in note 3): [W]hen the power of eminent domain is used to supply public goods, the surplus will tend to be divided, at least approximately, in proportion to preexisting shares of wealth[:] Those with large preexisting shares will obtain large benefits from public goods; those with small preexisting shares will obtain small benefits.
84. Consider also Ugo Mattei, Efficiency As Equity: Insights from Comparative Law and Economics, 14 Intl Rev L & Econ 3, 7 (1994): As far as the public use requirement is concerned, the economic theory of public goods provides both a justification and a limit. The justification is that the government needs to be able to acquire the inputs that are necessary to provide public goods which the market cannot easily provide. The limit is set by the consideration that any private use of the power of eminent domain will be inefficient since it produces a result that private parties were not able to reach by bargaining.
85. See Eric L. Talley, Note, Contract Renegotiation, Mechanism Design, and the Liquidated Damages Rule, 46 Stan L Rev 1195, 1198, 1219-20 (1994) (discussing the problem of bilateral monopoly in contract renegotiation);
86. Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 Colum L Rev 2655, 2659-60 (1994) (observing that the valuation problem heightens the possibility of strategic bargaining in the field of intellectual property);
87. John Kennan and Robert Wilson, Bargaining with Private Information, 31 J Econ Lit 45, 46 (1993) (hypothesizing that differences in private information are a primary cause of delays in bargaining);
88. Robert Cooter, The Cost of Coase, 11 J Legal Stud 1, 23 (1982) (reviewing the literature and noting that disagreements as to how to divide the contractual surplus may prevent successful Coasean bargaining). On asymmetric information specifically,
89. see Karen Eggleston, Eric A. Posner, and Richard Zeckhauser, The Design and Interpretation of Contracts: Why Complexity Matters, 95 Nw U L Rev 91, 109 (2000) (defining "asymmetric information" as a situation in which "one party to a contract⋯ has more information about future states of the world than does the other party");
90. Louis Kaplow and Steven Shavell, Do Liability Rules Facilitate Bargaining? A Reply to Ayres and Talley, 105 Yale L J 221, 223 (1995): When each party's own valuation is not known by the other, each party will have incentives to misrepresent its valuation in bargaining, hoping to extract more of the bargaining surplus from the other party. Parties may therefore demand too much or offer too little, with the result that efficient bargains may not be reached. Compare William Samuelson, A Comment on the Coase Theorem, in Alvin E. Roth, ed, Game-theoretic Models of Bargaining 321, 331-35 (Cambridge 1985) (arguing that if an entitlement is auctioned in a particular way between the parties rather than allocated through bargaining, the problems associated with asymmetric information and bargaining can be overcome, but acknowledging that his proposed auctions may be impracticable because they would require the initial entitlement holder to share the proceeds).
91. See also generally Richard A. Posner, Economic Analysis of Law 55 (Aspen 6th ed 2003).
92. For a discussion of the differences between holdouts and the oft-related phenomenon of free riding, see generally Lloyd Cohen, Holdouts and Free Riders, 20 J Leg Stud 351 (1991).
93. See Thomas J. Miceli and Kathleen Segerson, A Bargaining Model of Holdouts and Takings, 9 Am L & Econ Rev 160, 169-71 (2007) (illustrating how even the threat of eminent domain from a developer can be a solution to the problem of holdouts).
94. See Shavell, Foundations of Economic Analysis of Law at 124-32 (cited in note 3) (discussing the complications that arise when the state attempts to acquire property through purchase).
95. For discussion of informational justifications for eminent domain, see Christopher T. Wonnell, The Structure of a General Theory of Nondisclosure, 41 Case W Res L Rev 329, 360-62 (1991) (noting that while nondisclosure prevents opportunism, it also may tax one's morality);
96. Levmore, 68 Va L Rev at 142-44 (cited in note 3) (weighing the informational justifications for eminent domain to gain insight into the appropriate level of regulation for insider trading).
97. Determining market price for taken property is often extraordinarily difficult. See, for example, Abraham Bell and Gideon Parchomovsky, Taking Compensation Private, 59 Stan L Rev 871, 885-90 (2007). This is hardly surprising, given that market failure is the basis of the decision to take.
98. See Eduardo Moisés Peñalver, Regulatory Taxings, 104 Colum L Rev 2182, 2183-84 (2004) (discussing the vague distinction between taxes and takings).
99. See, for example, Bennis v Michigan, 516 US 442, 452-53 (1996) (upholding seizure by the state of a jointly owned automobile in which a husband committed sexual activity with a prostitute, and holding that his wife was not entitled to "just compensation" under the Takings Clause for loss of her ownership interest).
100. See Laurence H. Tribe, American Constitutional Law § 7-3 at 554 (Foundation 2d ed 1988).
101. For descriptions of property as a "bundle of rights," see, for example, Edward H. Rabin, et al, Fundamentals of Modern Property Law 1, 22 (Foundation 4th ed 2000);
102. Joseph William Singer, Introduction to Property 2 (Aspen 2000);
103. Gregory S. Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought, 1776-1970 319-23, 381-82 (Chicago 1997);
104. Nancie G. Marzulla and Roger J. Marzulla, Property Rights: Understanding Government Takings and Environmental Regulation 11-12 (Government Institutes 1997);
105. J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L Rev 711, 712 (1996);
106. William A. Fischel, Regulatory Takings: Law, Economics, and Politics 2 (Harvard 1995);
107. Jeanne L. Schroeder, Chix Nix Bundle-o-stix:A Feminist Critique of the Disaggregation of Property, 93 Mich L Rev 239, 239 (1994);
108. Jesse Dukeminier and James E. Krier, Property 86 (3d ed 1993);
109. John Edward Cribbet, Concepts in Transition: The Search for a New Definition of Property, 1986 U III L Rev 1, 1;
110. Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 Buff L Rev 325, 357-67 (1980).
111. See United States v Causby, 328 US 256, 266-67 (1946).
112. See Penn Central v New York City, 438 US 104, 138 (1978). For a broader discussion of the ability to use nontakings powers to accomplish substantially the same objective, see Bell and Parchomovsky, 106 Colum L Rev at 1434 (cited in note 2).
113. 260 US 393 (1922).
114. Id at 415.
115. See Gideon Kanner, Hunting the Snark, Not the Quark: Has the Supreme Court Been Competent in Its Effort to Formulate Coherent Regulatory Takings Law?, 30 Urb L 307, 308 (1998) ("The incoherence of the U.S. Supreme Court's output in this field has by now been demonstrated time and again by practitioners and academic commentators ad nauseam, and I refuse to add to the ongoing gratuitous slaughter of trees for the paper consumed in this frustrating and increasingly pointless enterprise.");
116. Daniel Farber, Public Choice and Just Compensation, 9 Const Comment 279, 279 (1992) ("There is no consensus today about takings law - only a general belief that the takings problem is difficult and that takings doctrine is a mess.").
117. See generally, for example, Peñalver, Regulatory Taxings (cited in note 66).
118. See Mahon, 260 US at 413 (holding that substantial diminution of value may constitute a taking under eminent domain). Justice Holmes's opinion is characteristically vague in identifying the sources of the regulatory takings doctrine. However, the emphasis on distinguishing legitimate exercises of the police power from exercises of eminent domain suggests that the regulatory takings doctrine operates in concert with substantive due process; a regulation that violates the substantive due process is no longer a valid exercise of the police power, but if the regulation abides by the requirements of the substantive Due Process Clause, there has been no taking. See Kenneth Salzberg, The Dog That Didn't Bark: Assessing Damages for Valid Regulatory Takings, 46 Natural Resources J 131, 134-35 (2006).
119. See First English Evangelical Lutheran Church of Glendale v County of Los Angeles, 482 US 304, 321-22 (1987) (discussing whether courts have the authority to force government to take property through eminent domain when it has chosen to take through uncompensated regulation).
120. See, for example, Posner, Economic Analysis of Law at 57-58 (cited in note 60) (discussing the ways in which the eminent domain power systematically underestimates or ignores subjective value).
121. For the sake of the hypothetical, I am assuming that there is either a disparity between the public's ex ante and ex post confidence in government monopolies, or that the government misreads the public desire. These examples are intended to be purely hypothetical. In describing the cases, I am not suggesting either that it is desirable for the government to own property for species conservation or that it is undesirable for the government to own air transportation assets. I am also not making any suggestions about whether the government should be restricted, constitutionally or otherwise, from exercising its powers on the basis of popular, if misguided, sentiment, or indeed about whether popular sentiment should be subject to questions about its wisdom.
122. Compare Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv L Rev 1165, 1214 (1967) (discussing a utilitarian model for takings, in which the highest-value user should be the one who possesses the land, based on a consideration of efficiency gains, demoralization costs, and settlement costs),
123. with Donald J. Kochan, Public Use and the Independent Judiciary: Condemnation in an Interest-group Perspective, 3 Tex Rev L & Policy 49 (1998) (calling for reinterpreting the Takings Clause to reduce private rent-seeking).
124. See Bruce A. Ackerman, Private Property and the Constitution 190 n 5 (Yale 1977) ("[T]he modern understanding of 'public use' holds that any state purpose otherwise constitutional should qualify as sufficiently 'public' to justify a taking.").
125. See, for example, Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S Cal L Rev 1353, 1367 n 29 (1982) (observing that "the public use limitation has little, if any, constitutional bite today, except in cases involving the condemnation of excess land"). This development has prompted protest from some scholars. See, for example, Merrill, 72 Cornell L Rev at 61 (cited in note 3) (critiquing the decline of the public use requirement in takings jurisprudence);
126. Epstein, Takings at 161-81 (cited in note 3) (declaring that the definition of "public use" has become so broad that it might as well be invisible);
127. Gideon Kanner, Condemnation Blight: Just How Just Is Just Compensation?, 48 Notre Dame Lawyer 765, 765-66 (1973).
128. See also generally Bell and Parchomovsky, 106 Colum L Rev at 1413 (cited in note 2) (explaining liberal and conservative objections to the expansion of public use). Interestingly, at least as a matter of grammar, the phrasing of the Fifth Amendment's Takings Clause actually suggests that "public use" is a condition precedent of the payment of "just compensation" rather than of the exercise of the taking power.
129. See Morton J. Horwitz, The Transformation of American Law 1780-1860 65 (1977) (citing arguments of nineteenth-century lawyers that similar provisions in state constitutions did not limit power to take for private use). That is, the language of the Fifth Amendment suggests that the government may take property even absent a public use, but need pay compensation only when it takes the property for a public use. Traditionally, the Takings Clause has not been so read; instead it has been thought to embody the Anglo-American tradition of limiting the power of eminent domain to cases where the taking is for a public use. See, for example, Kelo, 545 US at 477-78.
130. See Bell and Parchomovsky, 106 Colum L Rev at 1413 (cited in note 2).
131. See also Kelo, 545 US at 489-90.
132. See Bell and Parchomovsky, 106 Colum L Rev at 1413 (cited in note 2).
133. See, for example, Hathcock, 684 NW2d at 787 (purporting to overrule Poletown);
134. Bailey v Myers, 76 P3d 898, 904 (Ariz 2003) (ruling that seizure of property for redevelopment into privately owned retail, office, and restaurant facilities does not satisfy "public use").
135. Merrill, 72 Cornell L Rev at 92-93 (cited in note 3) (presenting a model that evaluates public use based on whether or not the government is the highest-value user).
136. See generally Dennis Mueller, Public Choice III (Cambridge 2003).
137. For evidence concerning fiscal illusion's impact on government decisionmaking, see Geoffrey K. Turnbull, The Overspending and Flypaper Effects of Fiscal Illusion: Theory and Empirical Evidence, 44 J Urban Econ 1, 22-23 (1998) (indicating that the complexity of the budget plays an important role in determining government spending, as the complex budget makes it difficult for voters to determine the effect of a proposed spending item on the budget as a whole);
138. George W. Downs and Patrick D. Larkey, The Search for Government Efficiency: From Hubris to Helplessness 125-27 (Random 1986) (arguing that agencies and individuals can manipulate government decisionmaking by inflating benefits and deflating costs, regardless of the public good produced by the projects in question);
139. Joseph J. Cordes and Burton A. Weisbrod, Governmental Behavior in Response to Compensation Requirements, 11 J Pub Econ 47, 56-57 (1979) (showing that compensation requirements can restrict efficient takings by forcing government agencies to consider budgetary requirements rather than social benefits).
140. See generally Mueller, Public Choice III (cited in note 87).
141. See Bell and Parchomovsky, 59 Stan L Rev at 885-90 (cited in note 65).
142. Arguably, some state constitutional public use doctrines may come closer to limiting the takings power to those cases where coercion is necessary. In Hathcock, the court offered three categories of cases in which public takings on behalf of private entities would be found to have a public use. See 684 NW2d at 782. The first of these categories is "cases [] in which collective action is needed to acquire land for vital instrumentalities of commerce." Id.
143. See note 82 and accompanying text.
144. See also Part IV.B.1.
145. See, for example, Idaho Code Ann § 7-701A (West) ("Eminent domain shall not be used to acquire private property: (a) For any alleged public use which is merely a pretext for the transfer of the condemned property or any interest in that property to a private party; or (b) For the purpose of promoting or effectuating economic development.").
146. See Patricia Munch, An Economic Analysis of Eminent Domain, 84 J Polit Econ 473, 488 (1976) (demonstrating that different cost structures for government and property owners lead to systematic undercompensation for low-value property and overcompensation for high-value property).
147. Calabresi and Melamed, 85 Harv L Rev at 1092 (cited in note 27).
148. Id.
149. Id at 1092-93.
150. See Bell and Parchomovsky, 101 Mich L Rev at 5 (cited in note 30) ("Pliability rules⋯ are dynamic rules, while property and liability rules are static").
151. Louis Kaplow, An Economic Analysis of Legal Transitions, 99 Harv L Rev 509, 529-30 (1986).
152. See Bell and Parchomovsky, 101 Mich L Rev at 55 (cited in note 30) (laying out the criteria for a successful adverse possession claim).
153. Id at 50-51 ("[T]he fair use privilege empowers courts to excuse unauthorized appropriation of a copyrighted work when doing so advances the public benefit without substantially impairing the economic value of the original work.").
154. Id at 35-36.
155. See Bouckaert and De Geest, 15 Intl Rev L & Econ at 476-77 (cited in note 6).
156. See, for example, Wis Stat Ann § 893.25(2)(a) (West).
157. However, the entitlement should not be viewed as being protected only by a liability rule as there are contexts in which it enjoys property rule protection against the government actor that holds the power of eminent domain. In characterizing takings this way, I differ from Calabresi and Melamed, 85 Harv L Rev at 1089 (cited in note 27), as well as from Merrill, 72 Cornell L Rev at 61 (cited in note 3), who view the takings power as establishing a general regime under which private property enjoys property rule protection against all but the government, but liability rule protection only against the state.
158. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2-3 at 290-330 (West 4th ed 2004) (describing searches executed at residential premises through consent and search warrants).
159. But see Nosal, Private Takings at 17-19 (cited in note 6) (demonstrating that given bad incentives for owner development, takings powers produce net welfare losses absent "significant" holdout problems).
160. See Part I.E.
161. Posner, Economic Analysis of Law at 55 (cited in note 60).
162. For a discussion of the importance of eminent domain in land assembly, see id.
163. See generally Bell and Parchomovsky, 90 Cornell L Rev 531 (cited in note 53).
164. See Part III.
165. See Scheiber, 33 J Econ Hist at 237 (cited in note 41).
166. See note 8.
167. See also Epstein, Takings at 170-76 (cited in note 3).
168. See Wendell E. Pritchett, The "Public Menace" of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L & Policy Rev 1, 9-11 (2003) (describing state court actions that restricted the exercise of eminent domain by private corporations);
169. Scheiber, 33 J Econ Hist at 240-42 (cited in note 41) (pointing to state constitutional reforms in the late nineteenth century aimed at restricting the use of eminent domain including requirements that compensation for takings be determined by a jury).
170. 35 Mich 333 (1877).
171. Id at 339, 341-42.
172. In re Niagara Falls & Whirlpool Railway Co, 15 NE 429, 432 (NY App 1888) ("[T]o provide for the portion of the public who may visit Niagara falls better opportunities for seeing the natural attractions⋯ is not a public purpose which justifies [a taking].").
173. See Scheiber, 33 J Econ Hist at 248-49 (cited in note 41) (noting that states began requiring prior payment and jury trials for land expropriated by private corporations).
174. See, for example, Ala Code § 37-6-3(15) (Michie) (granting electric cooperatives the power to exercise eminent domain).
175. See Arkansas Power & Light Co v Harper, 460 SW2d 75 (Ark 1970) (power transmission line).
176. See Times Mirror Cable Television of Springfield v First National Bank, 582 NE2d 216 (111 App 1991) (cable television wiring).
177. See Hagemeier v Indiana & Michigan Electric Co, 457 NE2d 590 (Ind App 1983) (electric transmission line right of way).
178. See Williams Telecommunications Co v Gragg, 750 P2d 398 (Kan 1988) (fiber optic cable for telecommunications).
179. See McInturff v Oklahoma Natural Gas Transmission Co, 475 P2d 160 (Okla 1970) (gas pipeline).
180. See Aquila Southwest Pipeline Corp v Gupton, 886 SW2d 497 (Tex App 1994) (gas pipeline).
181. See Or Rev Stat § 772.410 (2007) (allowing logging and mining companies to condemn land up to sixty feet in width in order to "construct and operate railroads, skid roads, tramways, chutes, pipelines and flumes").
182. See, for example, Colo Rev Stat Ann § 37-86-102 (West);
183. Idaho Code Ann §§ 42-1102, 42-1106 (West);
184. Utah Code Ann § 73-1-6 (West).
185. See also Bubb v Christensen, 610 P2d 1343, 1346 (Colo 1980) ("[T]he owner of a conditional water right may condemn rights-of-way over the lands of others for the purpose of transporting water.").
186. See Colo Const Art II, § 14 ("Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity.");
187. Colo Rev Stat Ann § 38-1-102(3) (West) ("[P]rivate property may be taken for private use, including private ways of necessity.").
188. An easement appurtenant is for the benefit of a property, while an easement in gross accrues to the benefit of a person. See Herbert Hovenkamp and Sheldon F. Kurtz, The Law of Property: An Introductory Survey 319 (West 5th ed 2001).
189. See, for example, Morrell v Rice, 622 A2d 1156, 1158 (Me 1993) ("An easement by necessity, an easement implied in the law, may be created when a grantor conveys a lot of land from a larger parcel and that conveyed lot is 'landlocked' by the grantor's surrounding land and cannot be accessed from a road or highway.") (quotation marks and citations omitted).
190. See, for example, Othen v Rosier, 226 SW2d 622, 625-26 (Tex 1950).
191. Crystal Park Co v Morton, 146 P 566, 569 (Colo App 1915).
192. Robyn W. Kube, Access at Last: The Use of Private Condemnations, 29 Colo Lawyer 77, 78 (Feb 2000). For state-by-state requirements for private ways of necessity,
193. see generally Jon W. Bruce and James W. Ely, Jr, The Law of Easements and Licenses in Land § 4:6 (West 2008).
194. See, for example, Wyo Stat Ann § 24-9-101 (Michie).
195. See, for example, Marinclin v Urling, 262 F Supp 733, 736 (WD Pa 1967) (finding public benefit in a road created through a taking by necessity because it will increase tax assessments on a landlocked parcel), affirmed, 384 F2d 872 (3d Cir 1967).
196. See, for example, Dowling v Erickson, 644 SW2d 264, 266 (Ark 1983) (justifying condemnation for a private access road because doing so would transform a useless parcel into productive property).
197. See, for example, Bieker v Suttons Bay Township Supervisor, 496 NW2d 398, 400 (Mich App 1992) ("The economic activity resulting from the land's use benefits the community as a whole and the increase in the land's value broadens the community's tax base.").
198. See generally Jeffery W. Scott, Public Use and Private Profit: When Should Heightened Scrutiny Be Applied to "Public-private" Takings?, 12 J Affordable Housing & Community Dev L 466 (2003).
199. See also Kulick, 2000 Detroit Coll L at 642 n 8 (cited in note 11) ("[T]he term connotes a scenario where the government uses eminent domain to take land and directly transfers it to a private entity under the guise of economic revitalization for the sake of fighting unemployment as a valid public use.").
200. Midkiff, 467 US at 229.
201. See id at 233-34.
202. See id at 241-42, 245.
203. For a review of the facts surrounding the Poletown case,
204. see generally John J. Bukowczyk, The Decline and Fall of a Detroit Neighborhood: Poletown vs. CM. and the City of Detroit, 41 Wash & Lee L Rev 49 (1984).
205. See also Bryan D. Jones and Lynn W. Bachelor, The Sustaining Hand: Community Leadership and Corporate Power 143-62 (Kansas 2d ed 1993). For criticism of the case, see Ilya Somin, Overcoming Poletown; County of Wayne v. Hathcock, Economic Development Takings, and the Future of Public Use, 2004 Mich St L Rev 1005, 1006-09 ("Poletown ⋯ stood as both the most visible symbol of eminent domain abuse and as a precedent justifying nearly unlimited power to condemn private property.");
206. William A. Fischel, The Political Economy of Public Use in Poletown: How Federal Grants Encourage Excessive Use of Eminent Domain, 2004 Mich St L Rev 929, 929-30 (arguing that the Poletown takings would not have occurred without federal earmarks for the project);
207. James W. Ely, Jr, Can the "Despotic Power" Be Tamed? Reconsidering the Public Use Limitation on Eminent Domain, Probate & Prop 30, 35 (Nov/Dec 2003) ("To many observers of differing political viewpoints, the Poletown case was a poster child for excessive condemnation.");
208. Thomas S. Ulen, Still Hazy after All These Years, 22 L & Soc Inq 1011, 1036 (1997) ("The Michigan Supreme Court's sanctioning of this taking is, I believe, an outrage.").
209. See Poletown, 304 NW2d at 458 (noting the plaintiffs' view that "assembling land ⋯ for conveyance to General Motors for its uncontrolled use in profit making is really a taking for private use and not a public use").
210. Id at 459.
211. See Pritchett, 21 Yale L & Policy Rev at 1 (cited in note 115).
212. Id at 35-36.
213. See Pritchett, 21 Yale L & Policy Rev at 4 (cited in note 115).
214. See id at 39-40 (discussing states' uses of eminent domain to transfer property to private developers, citing reconstruction and rehabilitation). Eminent domain is not the only governmental power employed in such public-private ventures. Tax and other direct financial incentives are probably the most popular tool.
215. See generally Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82 Minn L Rev 503 (1997) (describing enterprise zones, tax increment financing districts, business improvement districts, and special zoning as tools employed by local governments for municipal development).
216. See Michael McDonald, Durst Deal Done, The Bond Buyer 25 (Dec 29, 2003) (detailing a deal to assemble land for bank headquarters).
217. See Evan Halper, Cypress OKs Seizure of Church Land, LA Times B1 (May 29, 2002) (describing a city council meeting attended by hundreds of church members protesting the taking of their land for a Costco store).
218. See Dana Berliner, Public Power, Private Gain: A Five-year, State-by-state Report Examining the Abuse of Eminent Domain 36, 79 (Castle Coalition 2004).
219. See Dana Berliner, Opening the Floodgates: Eminent Domain Abuse in the Post-Kelo World 88 (Institute for Justice 2006) (noting rumors of plans to build casinos in an area to be assessed for blight).
220. Hathcock, 684 NW2d at 796 (holding that assembling land for a private project that would create jobs and raise tax revenues does not satisfy the public use requirement for the exercise of eminent domain).
221. Id at 783.
222. Id at 782.
223. Id at 782-83.
224. See, for example, Little Rock v Raines, 411 SW2d 486, 493-94 (Ark 1967) (finding that taking land for an industrial park did not constitute a public use).
225. See, for example, Baycol, Inc v Downtown Development Authority, 315 S2d 451, 456-58 (Fla 1975) (holding eminent domain not justified to build a parking lot needed to support a private development).
226. See, for example, Owensboro v McCormick, 581 SW2d 3, 5-8 (Ky 1979) (noting that allowing unconditional governmental power to compel citizens to surrender property because an "alternative private use is thought to be preferable⋯ is repugnant to our constitutional protections").
227. See, for example, Opinion of the Justices of the Supreme Judicial Court Given under the Provisions of Section 3 of Article IV of the Constitution, 131 A2d 904, 907-08 (Me 1957) (holding unconstitutional a state act that would allow government takings on behalf of private enterprises).
228. See, for example, Merrill v Manchester, 499 A2d 216, 217-18 (NH 1985) (finding that condemnation of land for an industrial park would not be considered an acceptable public use for eminent domain purposes because the private benefits outweigh the public benefits).
229. See, for example, Karesh v City Council, 247 SE2d 342, 344-45 (SC 1978) (deciding that the condemnation of land for a convention center that would be operated by a private developer does not constitute an acceptable public use).
230. See, for example, In re Seattle, 638 P2d 549, 556 (Wash 1981) ("A beneficial use is not necessarily a public use.").
231. See 545 US at 477.
232. See Bell and Parchomovsky, 106 Colum L Rev at 1425-26 (cited in note 2).
233. See, for example, Hammonds v Central Kentucky Natural Gas Co, 75 SW2d 204, 206 (Ky 1934) (treating natural gas as a "migratory" resource subject to capture).
234. See Pierson v Post, 3 Cai R 175 (NY 1805), the seminal case awarding property rights in a fox to the first possessor despite the historical practice that the pursuer was entitled to catch the fox.
235. See Hammonds, 75 SW2d at 205 ("[Oil and gas] belong to the owner of the land as a part of it so long as they are on it or in it or subject to his control; when they are gone, his title is gone.").
236. See 38 Am Jur 2d Gas and Oil § 186 at 562 (1999) (noting that without such a joint arrangement a single owner might be able to exploit the pool to the detriment of the other owners).
237. Id at § 187 at 563-64.
238. See, for example, Atlantic Richfield Co v Tomlinson, 859 P2d 1088, 1096 (Okla 1993) (describing forced pooling in the context of an ownership dispute over an oil, gas and mineral leasehold);
239. V-F Petroleum, Inc v A. K. Guthrie Operating Co, 792 SW2d 508, 511 (Tex App 1990).
240. See also Annotation, Validity of Compulsory Pooling or Unitization Statute or Ordinance Requiring Owners or Lessees of Oil and Gas Lands to Develop Their Holdings As a Single Drilling Unit and the Like, 37 ALR 2d 434 § 1 (1954): A statute under which owners of small or irregularly shaped tracts can be required to develop their lands as a single drilling unit for conservation purposes is usually defined as "a compulsory pooling" statute. It is contrasted with a compulsory unitization statute, which applies ordinarily to joint operations on a large scale, such as those covering an entire oil or gas field. However, sometimes the terms are used interchangeably.
241. See Anderson v Corporation Commission, 327 P2d 699, 702-03 (Okla 1957) (upholding the constitutionality of a forced pooling arrangement for oil drilling).
242. My definition of private takings therefore differs from that employed by Bouckaert and De Geest. See Bouckaert and De Geest, 15 Intl Rev L & Econ at 463 (cited in note 6) (defining private takings as situations in which one private party does not consent to a transfer).
243. See William B. Stoebuck and Dale A. Whitman, The Law of Property 853 (West 3d ed 2000);
244. Henry W. Ballantine, Title by Adverse Possession, 32 Harv L Rev 135, 135 (1918) ("[T]he doctrine [of adverse possession] apparently affords an anomalous instance of maturing a wrong into a right contrary to one of the most fundamental axioms of the law. 'For true it is, that neither fraud nor might/Can make a title where there wanteth right.'"), quoting Altham's Case, 77 Eng Rep 707 (1611).
245. See Stoebuck and Whitman, The Law of Property at § 8.7 (cited in note 175) (discussing the requirements of an easement by prescription and comparing such easements to adverse possession).
246. See Howard v Kunto, 477 P2d 210, 213 (Wash App 1970) (restating the oft-quoted rule that "to constitute adverse possession, there must be actual possession which is uninterrupted, open and notorious, hostile and exclusive, and under a claim of right made in good faith for the statutory period") (emphasis omitted);
247. Van Valkenburgh v Lutz, 106 NE2d 28, 29 (NY 1952);
248. Stoebuck and Whitman, The Law of Property at § 8.7 (cited in note 175);
249. John P. Dwyer and Peter S. Menell, Property Law and Policy: A Comparative Institutional Perspective 77-82 (Foundation 1998) (explaining the common law requirements). But see Chaplin v Sanders, 676 P2d 431, 436
250. (Wash 1984) (overruling Howard v Kunto to the extent that the case suggested a good-faith requirement for adverse possession, and specifically noting that an adverse possessor's "subjective belief regarding his true interest in the land and his intent to dispossess or not dispossess another is irrelevant");
251. O'Keefe v Snyder, 416 A2d 862, 870, 872 (NJ 1980) (noting that in the case of works of art, the "introduction of equitable considerations through the discovery rule [providing that a cause of action will not accrue until the injured party discovered or should have discovered facts supporting a cause of action] provides a more satisfactory response than the doctrine of adverse possession").
252. See Stoebuck and Whitman, The Law of Property§ 11.7 at 853 (cited in note 175) ("Title gained [through adverse possession] is usually in fee simple absolute.").
253. See generally Richard H. Helmholz, Adverse Possession and Subjective Intent, 61 Wash U L Q 331 (1983).
254. See generally Thomas J. Miceli and C.F. Sirmans, An Economic Theory of Adverse Possession, 15 Intl Rev L & Econ 161 (1995);
255. Thomas W. Merrill, Property Rules, Liability Rules, and Adverse Possession, 79 Nw U L Rev 1122 (1984).
256. Some claim that the role of adverse possession in eliminating unenforced property claims and quieting title should be viewed as a separate and unique reason for the doctrine. See, for example, Miceli and Sirmans, 15 Intl Rev L & Econ at 161 (cited in note 180) ("[B]y eliminating old claims to property, transaction costs are reduced, thereby facilitating market exchange.");
257. Merrill, 79 Nw U L Rev at 1129 (cited in note 180) (noting that without adverse possession old claims to property could hinder its marketability).
258. See Bell and Parchomovsky, 101 Mich L Rev at 57 (cited in note 26) ("[C]lear titles have two desirable effects: they facilitate trade and reduce conflicts.").
259. See Richard A. Posner, Savigny, Holmes, and the Law and Economics of Possession, 86 Va L Rev 535, 559 (2000): The economic rationale of adverse possession, conceived as a method of shifting ownership without benefit of negotiation or a paper transfer, can be made perspicuous by asking when property should be deemed abandoned, that is, returned to the common pool of unowned resources and so made available for appropriation through seizure by someone else. The economist's answer is that this should happen when it's likely to promote the efficient use of valuable resources.
260. See Eduardo Moisés Peñalver and Sonia K. Katyal, Property Outlaws, 155 U Pa L Rev 1095, 1170-71 (2007).
261. See, for example, Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 Georgetown L J 2419, 2435 (2001) ("[T]here is little justification today for legal rules that force the use of land ⋯ the law has recognized that productive use can be undesirable.").
262. See, for example, id at 2436 ("Leaving land idle may serve the beneficial purpose of holding it until the best use becomes clear.").
263. Miceli and Sirmans, 15 Intl Rev L & Econ at 161-62 (cited in note 180).
264. Id.
265. Id at 165.
266. Id at 162;
267. Helmholz, 61 Wash U L Q at 337 (cited in note 179) ("[D]espite the absence of any necessity, it is remarkable how frequently judges cite the existence and the relevance of good faith.").
268. See, for example, Golden Press v Rylands, 235 P2d 592, 595 (Colo 1951) ("Where defendant's encroachment is unintentional and slight, plaintiff's use not affected and his damage small and fairly compensable, while the cost of removal is so great as to cause grave hardship ⋯ mandatory injunction may properly be denied.").
269. See generally Kelvin H. Dickinson, Mistaken Improvers of Real Estate, 64 NC L Rev 37 (1985) (examining the history of statutory and judicial relief granted to mistaken improvers).
270. See Miceli and Sirmans, 15 Intl Rev L & Econ at 162 (cited in note 180).
271. Bouckaert and De Geest see all these phenomena, as well as bilateral monopolies, as falling in the same category. See Bouckaert and De Geest, 15 Intl Rev L & Econ at 467-68 (cited in note 6).
272. Lee Anne Fennell, Efficient Trespass: The Case for "Bad Faith" Adverse Possession, 100 Nw U L Rev 1037, 1038 (2006) ("Instead of triggering moral condemnation and legal disadvantage, a claimant's knowledge of the encroachment should be a prerequisite for obtaining title under a properly formulated doctrine of adverse possession.").
273. Id at 1084-86.
274. Id at 1059-60.
275. Id at 1073-76 (positing that a knowing trespasser rule for adverse possessors will encourage highly efficient trespass because it provides a way for the law to "test the relative subjective valuations of the parties").
276. Fennell, 100 Nw U L Rev 1073-76 (cited in note 195).
277. See id at 1039 n 10 (noting the "shrinking minority" of jurisdictions that continue to adhere to a rule disqualifying those who make good faith mistakes in boundary dispute cases).
278. On a closely related subject, see Warsaw v Chicago Metallic Ceilings, 676 P2d 584, 590 (Cal 1984) (holding that takings of easements by prescription need not be accompanied by compensation).
279. See Jeffrey Evans Stake, 89 Georgetown L J at 2439-40, 2452 (cited in note 185) (explaining that as a consequence of the title relating back to the beginning of the adverse possession period, the successful adverse possessor cannot be liable for trespass).
280. Consider J. A. Pye (Oxford) Ltd v United Kingdom, App No 44302/02 (Eur Ct HR 2005) (holding that in some cases, uncompensated takings by adverse possession may violate property rights protected under European Convention on Human Rights);
281. Pascoag Reservoir & Dam, LLC v Rhode Island, 217 F Supp 2d 206, 225-26 (D RI 2002), affirmed on other grounds, 337 F3d 87 (1st Cir 2003) (asserting in obiter dictum that uncompensated takings by adverse possession may violate the Fifth Amendment).
282. For a more limited suggestion of recognizing private eminent domain as an alternative to dishonesty where nondisclosure is optimal, see Levmore, 68 Va L Rev at 142-44 (cited in note 3).
283. On the importance of stability in property rights and their protection through property rules, see Bell and Parchomovsky, 90 Cornell L Rev 531, 552-53 (cited in note 53).
284. See Abraham Bell and Gideon Parchomovsky, Givings, 111 Yale L J 547, 584 (2001).
285. See, for example, Hecht v Pro-Football, Inc, 570 F2d 982, 992 (DC Cir 1977) ("The essential facilities doctrine ⋯ states that where facilities cannot practicably by duplicated by would-be competitors, those in possession of them must allow them to be shared on fair terms.").
286. See Brett Frischmann and Spencer Weber Waller, Revitalizing Essential Facilities, 75 Antitrust L J 1, 4 (2008) ("[O]pen access to infrastructural resources supports society's economic interest in wealth maximization and allocative efficiency.").
287. See Part I.E.
288. See notes 7 and 111 and accompanying text.
289. See Part II.A.1.
290. See generally Jack L. Knetsch and Thomas E. Borcherding, Expropriation of Private Property and the Basis for Compensation, 29 U Toronto L J 237 (1979) (questioning the use of market value as compensation for expropriated property).
291. See Munch, 84 J Polit Econ at 495 (cited in note 94) (noting that in eminent domain proceedings the "structure of court costs [] induces higher buyer expenditure relative to the seller's on low-valued properties, but the opposite relation on high-valued properties").
292. See also generally Bell and Parchomovsky, 59 Stan L Rev 871 (cited in note 65) (setting out a self-assessment scheme as a way of determining an accurate subjective value in eminent domain proceedings).
293. 113 US 9 (1885).
294. Id at 10-11, 26.
295. An alternative possibility might be through self-assessment mechanisms. See Bell and Parchomovsky, 59 Stan L Rev at 891-95 (cited in note 65). Self-assessment mechanisms require a penalty mechanism to ensure accurate reporting; the mechanisms we suggested for public takings would certainly need adjustment for private takings.
296. See Suzanna Sherry, Haste Makes Waste: Congress and the Common Law in Cyberspace, 55 Vand L Rev 309, 317-19 (2002).
297. See Virtual Works, Inc v Volkswagen of America, Inc, 238 F3d 264, 269, 271 (4th Cir 2001).
298. See American Girl, LLC v Nameview, Inc, 381 F Supp 2d 876, 878 n 1 (ED Wis 2005).
299. See Virtual Works, 238 F3d at 270 ("[I]t is obvious even to the casual observer that the similarity between vw.net and the VW mark is overwhelming.").
300. See Danielle Weinberg Swartz, The Limitations of Trademark Law in Addressing Domain Name Disputes, 45 UCLA L Rev 1487, 1519 (1998) (advocating for a new federal cause of action that would allow trademark holders to gain ownership of domain names based on their trademarks).
301. Anticybersquatting Consumer Protection Act, Pub L No 106-113, 113 Stat 1536 (1999), codified at 15 USC § 1125(d) (creating a civil action for the bad faith intent to profit from the registration of a domain name that is "identical or confusingly similar" to a protected trademark).
302. Id.
303. Gideon Parchomovsky, On Trademarks, Domain Names, and Internal Auctions, 2001 U III L Rev 211, 232-38.
304. See Louis Kaplow and Steven Shavell, Property Rules versus Liability Rules: An Economic Analysis, 109 Harv L Rev 713, 765-66 (1996).
305. Cybersquatting may also be addressed through the rules of Internet Corporation for Assigned Names and Numbers (ICANN), the international organization responsible for allocating domain names.
306. See generally Stewart E. Sterk, Neighbors in American Land Law, 87 Colum L Rev 55 (1987).
307. See Part II.C
308. See also Bell and Parchomovsky, 101 Mich L Rev at 55-59 (cited in note 30).
309. See Part II.C.
310. See Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv L Rev 621, 623 (1998) (asserting that empty storefronts in Moscow are an example of anticommons property created as a result of an initial endowment of disaggregated rights);
311. Frank I. Michelman, Ethics, Economics, and the Law of Property, in Pennock and Chapman, eds, Nomos XXIV: Ethics, Economics, and the Law 3, 6, 9 (NYU 1982).
312. See also Lee Anne Fen-nell, Common Interest Tragedies, 98 Nw U L Rev 907, 926 (2004) ("In the prototypical anticommons, everyone has the power to exclude everyone else from a resource, but nobody has the power to enter or use that resource without the permission of everyone else.").
313. Indian Land Consolidation Act of 1983, Pub L No 97-459, 96 Stat 2517, codified at 25 USC § 2201 et seq.
314. 481 US 704 (1987).
315. Id at 717.
316. Id at 709.
317. Id at 713. It is worth noting that the extreme fragmentation was itself the result of federal law that prohibited partition.
318. See notes 60-65 and accompanying text.
319. See Daniel B. Kelly, The "Public Use" Requirement in Eminent Domain Law: A Rationale Based on Secret Purchases and Private Influence, 92 Cornell L Rev 1, 46 n 219 (2006).
320. Consider Lawrence A. Hamermesh, Premiums in Stock-for-stock Mergers and Some Consequences in the Law of Director Fiduciary Duties, 152 U Pa L Rev 881, 911 (2003) (discussing control premiums in the context of corporate acquisitions).
321. See generally Steven Greenhut, Abuse of Power: How the Government Misuses Eminent Domain(Seven Locks 2004);
322. Castle Coalition, Floodgates Open: Tax-hungry Governments & Land-hungry Developers Rejoice in Green Light from U.S Supreme Court, online at http://www.castlecoalition.org/index.php?option=com-content&task= view&id=44&Itemid=144 (visited Apr 14, 2009).
323. Paul Moses, The Paper of Wreckage, Village Voice 34 (June 25, 2002);
324. Paul Moses, The Times' Sweetheart Deal, Village Voice 16 (Nov 24, 2004) (describing the condemnation of a Manhattan building by New York State to make way for a new New York Times building).
325. John R. Nolon and Jessica A. Bacher, Community Development: 'Didden v. Port Chester:' Placing Eminent Domain Debate in Proper Perspective, NY L J 5 (Feb 21, 2007) (discussing the municipal delegation to a private developer of an urban renewal project that involved condemnation proceedings).
326. Kelo, 545 US at 502.
327. Debra J. Saunders, Your Land Is Their Land-Part 2, San Francisco Chron B9 (Aug 4, 2005) (discussing the taking of a local tire store though eminent domain for the relocation of Sears Auto Center).
328. Poletown, 304 NW2d at 462 ("[T]he transfer of the property to General Motors after the condemnation cannot be considered incidental to the taking.").
329. See generally Mueller, Public Choice III(cited in note 87).
330. See William A. Fischel, Before Kelo, 28 Reg 32, 34 (Winter 2005) (discussing how most of the financing came from the US government, not from General Motors);
331. Ulen, 22 L & Soc Inq at 1036 (cited in note 143) (explaining that the city of Detroit intended to sell condemned property to General Motors for about $8 million).
332. See generally Martin Lipton and Erica H. Steinberger, Takeovers & Freezeouts(Law Journal Seminars 1978).
333. See Michael C Jensen, Foundations of Organizational Strategy 51 (Harvard 1998) (discussing how the decentralized nature of the company requires substitute mechanisms of organization);
334. Manuel A. Utset, Towards a Bargaining Theory of the Firm, 80 Cornell L Rev 540, 541-50 (1995) (comparing agency and bargaining theories of firms);
335. Aaron S. Edlin and Joseph E. Stiglitz, Discouraging Rivals: Managerial Rent-seeking and Economic Inefficiencies, 85 Am Econ Rev 1301, 1301 (1995) ("Takeovers can⋯ be difficult when ownership is dispersed.");
336. Mark J. Roe, Strong Managers, Weak Owners: The Political Roots of American Corporate Finance 4 (Princeton 1994) ("Dispersed shareholders and concentrated management became the quintessential characteristics of the large American firm.");
337. Adolf A. Berle, Jr and Gardiner C Means, The Modern Corporation and Private Property 71 (Macmillan 1932) (observing that a large group of individuals cannot combine their capital effectively without some members losing control over the enterprise).
338. For examples of the extensive literature on this subject, see generally Lucian A. Beb-chuk, Symposium: Corporate Control Transactions: The Case against Board Veto in Corporate Takeovers, 69 U Chi L Rev 973 (2002);
339. Jonathan R. Macey, Displacing Delaware: Can the Feds Do a Better Job Than the States in Regulating Takeovers?, 57 Bus Lawyer 1025 (2002);
340. Lucian A. Bebchuk and Allen Ferrell, A New Approach to Takeover Law and Regulatory Competition, 87 Va L Rev 111 (2001);
341. Frank H. Easterbrook and Daniel R. Fischel, The Proper Role of a Target's Management in Responding to a Tender Offer, 94 Harv L Rev 1161 (1981);
342. Henry G. Manne, Mergers and the Market for Corporate Control, 73 J Polit Econ 110 (1965).
343. Michael Heller and Rick Hills, Land Assembly Districts, 121 Harv L Rev 1465, 1469 (2008) ("The economic and moral intuition underlying the [LADs] is simple: persons who hold a legal interest in a neighborhood's land should collectively decide whether the land ought to be assembled into a larger parcel.").
344. Amnon Lehavi and Amir N. Licht, Eminent Domain, Inc., 107 Colum L Rev 1704, 1708-21 (2007).
345. See Dukeminier and Krier, Property at 855-920, 951-89 (cited in note 69).
346. See Bradley C. Karkkainen, Zoning: A Reply to the Critics, 10 J Land Use & Envir L 45, 60-62 (1994).
347. See generally Comment, Building Size, Shape, and Placement Regulations: Bulk Control Zoning Reexamined, 60 Yale L J 506 (1951).
348. For a general discussion of churning of regulation, see Fred S. McChesney, Money for Nothing: Politicians, Rent Extraction, and Political Extortion(Harvard 1997).
349. Robert H. Nelson, Privatizing the Neighborhood: A Proposal to Replace Zoning with Private Collective Property Rights to Existing Neighborhoods, 7 Geo Mason L Rev 827, 837 (1999).
350. See Village of Euclid v Ambler Realty Co, 272 US 365, 388 (1926) (noting that both zoning and nuisance laws place strong emphasis on the surrounding circumstances and locality).
351. See generally, for example, Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines As Land Use Controls, 40 U Chi L Rev 681 (1973) (arguing that decentralized planning devices including covenants and nuisance laws are more efficient and equitable than centralized zoning schemes).
352. See also Nelson, 7 Geo Mason L Rev at 839-41 (cited in note 256) ("If the practical consequence of zoning was to provide a collective private property right, why not simply provide this property right directly through private [neighborhood associations]?").
353. See William A. Fischel, The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls 55 (Johns Hopkins 1985).
354. See Oded Hochman and Haim Ofek, A Theory of the Behavior of Municipal Governments: The Case of Internalizing Pollution Externalities, 6 J Urban Econ 416, 426-27 (1979) ("[P]ollution is only one of many urban externalities ⋯ and we argue that society has found a solution to urban externalities by establishing the institution of municipal government.").
355. See generally Mueller, Public Choice III(cited in note 87).
356. See Ellickson, 40 U Chi L Rev at 721 (cited in note 258) (criticizing the balancing test of social utility versus harm in nuisance law to determine whether damages should be paid).
357. William L. Prosser, Nuisance without Fault, 20 Tex L Rev 399, 410 (1942) ("There has been a deplorable tendency to use the word as a substitute for any thought about a problem, to call something a 'nuisance' and let it go at that.").
358. Ellickson, 40 U Chi L Rev at 721-22 (cited in note 258).
359. See id at 719.
360. Once again, this will also prove of assistance in the event of litigation concerning the adequacy of compensation.
361. See, for example, Scheiber, 33 J Econ Hist at 249 (cited in note 41) ("[T]he interpenetration of private business interests and governmental programs justifying expropriation continues to be a central problem of public policy.");
362. Horwitz, The Transformation of American Law at 146-51 (cited in note 82) (discussing the changing expectations regarding property rights as legal thinkers "move[d] away from physicalist definitions of property").
363. See also generally Stephen B. Presser, Some Realism about Orphism or the Critical Legal Studies Movement and the New Great Chain of Being: An English Legal Academic's Guide to the Current State of American Law, 79 Nw U L Rev 869, 883 (1984) ("[T]he new legal left suffers from some of the classic weaknesses of Marxism.").
364. See, for example, critiques cited in Bell and Parchomovsky, 106 Colum L Rev at 1413-16 (cited in note 2) ("Everyone hates Kelo.").
365. Scheiber, 33 J Econ Hist at 237 (cited in note 41).
366. See, for example, Ilya Somin, Controlling the Grasping Hand: Economic Development Takings after Kelo, 15 S Ct Econ Rev 183, 183-84 (2007).
367. These aspects correspond to the two central questions in privatization of government services. See John D. Donahue, The Privatization Decision: Public Ends, Private Means 7 (1989) (distinguishing questions involving financing from those involving performance).
368. An interesting modern version of the critique can be found in Margaret Jane Radin, Humans, Computers, and Binding Commitment, 75 Ind L J 1125 (2000).
369. Radin builds on themes first expressed in Margaret Jane Radin, Property and Personhood, 34 Stan L Rev 957 (1982), where she argued that the personhood theory of property - positing that some control over the resources in a person's external environment is necessary to proper self-development - is often implicit in court opinions and commentaries, yet ignored in legal thought, and warrants distinguishing between "personal
370. Radin criticizes what she labels "private eminent domain" on the grounds that its presumed encroachment upon personal values sought to be protected by the absolute right of exclusion entailed in property rule protection. However, Radin expresses greater comfort with private eminent domain that victimizes "businesses firms," so long as the firms enjoy reciprocal powers. See id at 1155. Radin fails to identify reasons for believing that such personal property will be better defended if eminent domain decisions are made solely by public actors. See id at 1159.
371. See generally McChesney, Money for Nothing(cited in note 255).
372. Munch, 84 J Polit Econ at 495 (cited in note 94).
373. See generally Amihai Glazer and Lawrence S. Rothenberg, Why Government Succeeds and Why It Fails(Harvard 2001).
374. See Bell and Parchomovsky, 106 Colum L Rev at 1440-43 (cited in note 2);
375. Bell and Parchomovsky, 59 Stan L Rev at 878 (cited in note 65). But see Thomas W. Merrill, Incomplete Compensation for Takings, 11 NYU Envir L J 110, 110-11 (2002) (arguing that implicit subsidies for public goods may justify less than full compensation for public takings).
376. See Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert W. Vishny, Privatization in the United States, 28 RAND J Econ 447, 448 (1997).
377. Id.
378. See generally Gordon Walker and David Weber, A Transaction Cost Approach to Make-or-buy Decisions, 29 Admin Sci Q 373 (1984).
379. See generally Elliott D. Sclar, You Don't Always Get What You Pay for: The Economics of Privatization(Cornell 2000).
380. See Alvaro Cuervo and Belén Villalonga, Explaining the Variance in the Performance Effects of Privatization, 25 Acad Mgmt Rev 581, 582 (2000) ("[A]lthough a simple count of results would give a considerable edge to private ownership⋯ the cumulative evidence is not conclusive.").
381. See notes 109-10 and accompanying text.
382. See, for example, Armendariz v Penman, 75 F3d 1311, 1320 n 5 (9th Cir 1996) (en banc).
383. See Scheiber, 33 J Econ Hist at 235 (cited in note 41) ("The 'public use' limitation did not arouse substantial controversy, so far as projects built and operated by government itself were concerned.").
384. 348 US at 33.
385. 467 US at 241.
386. 545 US at 480.
387. David A. Dana and Thomas W. Merrill, Property: Takings 191 (Foundation 2002) (discussing the deferential treatment of courts to a legislative determination that a taking satisfies a public use).
388. See Midkiff, 467 US at 241.
389. Id at 240-43 ("The 'public use' requirement is [] coterminus with the scope of a sovereign's police powers.").
390. See Frank H. Easterbrook, The Constitution of Business, 11 Geo Mason L Rev 53, 53 (1988) ("Substantive due process is dead.").
391. See Bell and Parchomovsky, 111 Yale L J at 551 n 16 (cited in note 206).
392. See Epstein, Takings at 161-81 (cited in note 3).
393. See id at 170.
394. See Joseph L. Sax, Takings and the Police Power, 74 Yale L J 36, 62-63 (1964) (defining compensable takings as those resulting from government operating in its "enterprise" capacity and noncompensable takings as those resulting from government acting in its "arbitral" capacity).
395. But see Joseph L. Sax, Takings, Private Property and Public Rights, 81 Yale L J 149, 149 (1971) (rejecting his own earlier theory).
396. See Jed Rubenfeld, Usings, 102 Yale L J 1077, 1079-80 (1993) ("Confined to its threshold role, 'for public use' is a stranger to the mass of takings issues wrestled with in case after case, many of which hardly bother to mention the three-word phrase anymore.").
397. See, for example, Penn Central Transportation Co v New York City, 438 US 104, 127 (1978) ("[A] use restriction on real property may constitute a 'taking' if not reasonably necessary to the effectuation of a substantial public purpose.").
398. Lingle v Chevron USA. Inc, 544 US 528, 548 (2005), clarified that this and similar obiter dicta should not be interpreted to create a separate actionable ground for evaluating the constitutionality of regulations under the Takings Clause.
399. Consider Bell and Parchomovsky, 106 Colum L Rev at 1412, 1440-43 (cited in note 2) (discussing cost-benefit analysis as it relates to the decision whether to engage in eminent domain proceedings or to pursue regulatory action against a property).
400. See Nicole Stelle Garnett, The Public Use Question As a Takings Problem, 71 Geo Wash L Rev 934, 936 (2003) (highlighting cases that required the government in eminent domain cases to show a particular purpose for the taking in contravention of the doctrine requiring only a conceivable purpose).
401. See notes 83-85 and accompanying text.
402. For an updated list of recently passed and pending state legislation aimed at limiting the use of eminent domain, see Castle Coalition, Legislative Center, online at http://www.castlecoalition.org/index.php? option=com-content&task=view&id=34&Itemid=119 (visited Apr 14, 2009).
403. See Kelo, 545 US at 477 ("[I]t has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B.").
404. See generally cases collected in Julius L. Sackman and Patrick J. Rohan, 4 Nichols' The Law of Eminent Domain(Matthew Bender rev 3d ed 1990 & 1991 Supp) (synthesizing the case law surrounding valuations of property).
405. See generally, for example, Abraham Bell, Not Just Compensation, 13 J Contemp Legal Issues 29 (2003) ("[A] doctrine of takings compensation can be developed that⋯ eliminates the adverse effects of fiscal illusion, while avoiding the trap of creating moral hazards for property owners.");
406. Thomas J. Miceli and Kathleen Segerson, Regulatory Takings: When Should Compensation Be Paid?, 23 J Legal Stud 749 (1994) (arguing for full or no compensation, based upon the efficiency of the government regulation and the private development of the property);
407. Thomas J. Miceli, Compensation for the Taking of Land under Eminent Domain, 147 J Inst & Theoretical Econ 354 (1991) (arguing that not paying compensation for takings would lead to inefficiency as landowners would overinvest in land in order to avoid seizure);
408. Lawrence Blume, Daniel L. Ru-binfeld, and Perry Shapiro, The Taking of Land: When Should Compensation Be Paid?, 99 Q J Econ 71 (1984) (arguing for partial compensation as a means of balancing property owners' moral hazard and government's fiscal illusion).
409. See generally Sackman and Rohan, 4 Nichols' The Law of Eminent Domain(cited in note 303) (summarizing the case law for valuations);
410. Julius L. Sackman and Patrick J. Rohan, 4A Nichols' The Law of Eminent Domain(Matthew Bender rev 3d ed 1990 & 1991 Supp) (summarizing the case law for consequential damages).
411. See United States v Miller, 317 US 369, 374 (1943).
412. See Bell and Parchomovsky, 59 Stan L Rev at 885 (cited in note 65).
413. Arguments can be made that such undercompensation is desirable, as it deters property owners from overdevelopment in anticipation of a taking. See generally Kaplow, 99 Harv L Rev 509 (cited in note 99);
414. Blume, Rubinfeld, and Shapiro, 99 Q J Econ 71 (cited in note 304).
415. But see generally Bell, 13 J Contemp Legal Issues 29 (cited in note 304);
416. Miceli, 147 J Inst & Theoretical Econ 354 (cited in note 304).
417. See text accompanying note 215.
418. But see Epstein, Takings at 170-75 (cited in note 3) (arguing that the 50 percent surplus above market value required by the Mill Act served to vindicate the subjective property rights of owners and ensure social gain without deterring truly beneficial takings).
419. See A.L.A. Schechter Poultry Corp v United States, 295 US 495, 537 (1935);
420. Panama Refining Co v Ryan, 293 US 388, 430 (1935).
421. See, for example, Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L J 1399, 1402 (2000) (identifying a "new delegation doctrine" that focuses not on who is making law but on how well it is being made);
422. Anthony S. Winer, Why the "New Non-delegation" May Not Be So New, 27 Wm Mitchell L Rev 1025, 1032-34 (2000) (suggesting that the nondelegation doctrine is being extended to cover agency regulations instead of solely serving as a restraint on Congress). For a debate on whether the nondelegation doctrine even exists,
423. see Eric A. Posner and Adrian Vermeule, Interring the Non-delegation Doctrine, 69 U Chi L Rev 1721, 1721 (2002) (arguing that agents acting pursuant to a statutory grant of executive power never exercise legislative power);
424. Larry Alexander and Sai-krishna Prakash, Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated, 70 U Chi L Rev 1297, 1297-99 (2003) (disagreeing with Posner and Vermeule's thesis on normative and descriptive grounds, and positing that the delegation of large amounts of discretion can amount to a delegation of legislative power);
425. Eric A. Posner and Adrian Vermeule, Nondelegation:A Post-mortem, 70 U Chi L Rev 1331, 1331-32 (2003) (criticizing Alexander and Prakash for their defense of a "radically restrictive account of delegation").
426. See, for example, Gillian E. Metzger, Privatization As Delegation, 103 Colum L Rev 1367, 1367 (2003).
427. See Mistretta v United States, 488 US 361, 372 (1989).
428. See generally Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum L Rev 1001 (1995).
429. Flagg Brothers, Inc v Brooks, 436 US 149, 157 (1978).
430. Id at 157-59.
431. See generally Jody Freeman, Extending Public Accountability through Privatization: From Public Law to Publicization, in Michael W. Dowdle, ed, Public Accountability: Designs, Dilemmas and Experiences 83 (Cambridge 2006) (suggesting that increasing privatization of public services provides an opportunity for greater oversight because private companies will submit to greater scrutiny in exchange for lucrative public contracts).
432. See, for example, Paul Brest, State Action and Liberal Theory: A Casenote on Flagg Brothers v. Brooks, 130 U Pa L Rev 1296, 1300-02 (1982).
433. Calabresi and Melamed, 85 Harv L Rev 1089 (cited in note 27).
434. See generally Bell and Parchomovsky, 101 Mich L Rev 1 (cited in note 30).
435. See Part I.E.
436. See Andrea L. Peterson, The False Dichotomy between Physical and Regulatory Takings Analysis: A Critique of Tahoe-Sierrai Distinction between Physical and Regulatory Takings, 34 Ecol L Q 381, 381 (2007) (arguing that physical and regulatory takings should be analyzed similarly, and that the fundamental issue for both is whether fairness demands compensation).
437. See also Pumpelly v Green Bay Co, 80 US 166, 177-78 (1871): It would be a very curious and unsatisfactory result, if⋯ it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use.
438. See Mahon, 260 US at 415.