Type of paper: Essay

Topic: Domain, Public, Commerce, Business, Confidentiality, Property, Economics, Law

Pages: 5

Words: 1375

Published: 2021/01/10

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Introduction Eminent domain is widely comprehended as the state powers to seize private property without the approval of the owner. In history, most frequent uses properties taken by the state via eminent domain mentions public facilities, railroads, and highways. The powers of eminent domain have been previously exercised for the construction of massive public projects involving the public benefit. The law and eminent domain are associated with the obligatory land acquisition. The law requires that the power may be invoked solely for the purpose of public benefit, yet the constitution of the public domain is a subject of open interpretation and debates. Most governments recognize the powers to acquire private property for the benefit of the public. Therefore, in most scenarios, the powers of eminent domain are applied to offer essential public goods. The transfer of property from private use to public use requires the intervention of the government in the private markets. The current development of heated deliberations stroked by robust displacement that comes with the development of large infrastructural projects has promoted various benefits and severe strain on the eligibility and satisfactoriness of the supremacy of eminent domain. Kelly (4) references that power of eminent domain is regulated by federal action that emphasizes that the application of eminent domain must be necessary and proper based on the Congregational powers reckoned in Article 1, Section 8 of the Constitution. Likewise, eminent domain use must be accordance with the final clause of the Fifth Amendment. According to Kelly, the clause states that, “Nor shall private property be taken for public use, without compensation” (p. 5). Therefore, the use of eminent domain by the state must be consistent with the federal interpretations and just compensation and public use. The U.S. Supreme Court, according to Brock (6), has long recognized the power of the state to seize private property for the purposes of public use. Even though the powers of eminent domain do not feature in the constitution, it has been recognized and is regulated by various restrictions. Referencing the U.S. Supreme Court decision in 2005 in Kelo v. New London led in a public outrage; however, the ruling withheld the earlier decisions. As such, it affirmed the initial decisions by the Connecticut Supreme Court. The decision in Kelo v. City of New London represents a case that came before the United States Supreme Court in 2004, provided property precedent. The decision focused for property to get transferred to a public owner purposefully for economic growth and development (Brock 6). The decisions of the Court established that an economic-based project creates new employment, increases government revenue, and taxes alongside revitalizing a depressed urban area it qualified for a public use (Brock 6-7). The Kelo V. City of New London, according to Brock, expanded the initial decision in Berman v, Parker of the 1954. The decision of the case was based on the premise of the argument that the challenges of large-scale urban blight require addressing with large-scale plans for redevelopment. Furthermore, it argued that land can get confiscated and get transferred to a private entity for a well-defined public use, Brock observes. Since the Kelo decision, many states have passed laws limiting the application of eminent domain to well-documented limits. The 20th century experienced a new trend from both the federal and state courts that have moved from the narrow view to a wider view. In the County of Wayne v. Hathcock, the Michigan Supreme Court universally overruled the widely known Poletown decision. The court held that promoting the development of economy fails to constitute a legitimate public use with regards to the state constitution (Mehta 13). Contrastingly, in Kelo v. City of New London, the U.S. Supreme Court ruled that promoting the development of economy indeed constitutes a legitimate public use with reference to the federal law. The two contrasting cases have renewed review in the public use requirement (Mehta 13). The history of public use dates back to the English common law that appeared in America. The government officials invoked the eminent domain power and was included as part of the Fifth Amendment that sought to limit the powers of the eminent domain to taking of private property for public use. Following the Fifth Amendment, in the Hawaii Housing Authority v. Midkiff, the Court considered the efforts of Hawaii to remedy the islands’ concentrated ownership of land, thus it permitted tenants to request governmental condemnations of the property of their landlord hence allowing the tenants to purchase the property for a nominal fee (Mehta 13-14). Therefore, the conclusion clarified that public use requirement is coterminous with the scope of police sovereign powers. The eminent domain powers for seizing private property are socially undesirable and unnecessary and often results in inefficient transfers. Chen et al. (4) notes there is habitually lack of a mechanism for determining the real value with respect to the actual property owners. The courts routinely ignore the real value and depend on the fair market value of damages to establish “just compensation” for the condemner’s loss (Chen et al. 4). However, the market value does not calculate or compensate the full cost of the property as valued by the actual owner. This results into social unjust that may occur whether the subjective value of the actual owner deviates from the objective value determined by the court. Resultantly, the eminent domain powers forcefully transfer a private property where the existing owner actually values the property more than the reserved assembler. The use of secret buying, unlike eminent domain, has the agents facilitate the transfer, and it only gets approved by the actual owner if it is socially desirable, thus eliminating the risk of erroneous condemnations. The mechanism of voluntary exchange through the buying agents certifies the existing owner’s subjective value to get factored while inhibiting the present owner from deliberately inflating the actual value (Chen et al. 4) Therefore, secret buying through voluntary transactions allows for mutual benefit to occur between both parties and to avoid social unjust transactions. Thomas et al. (12) writes that the use of eminent domain for individually owned properties should be discouraged. According to him, private receipts allow unreasonable private inspiration to distort the practice of eminent domain. The takings for private benefit, for instance, development of real estate, the developer potentially obtains concentrated paybacks. Contrastingly, the takings for purposefully for public benefit, for building a new highway, for example, the beneficiaries who are the future road users are more numerous and only achieve dispersed paybacks. Therefore, since they substantially get a substantial benefit, the private parties that would rather benefit from the takings are provided a stronger incentive unlike the general public to subvert the takings power for their own benefit, according to Thomas and colleagues. Thus, a private seizure incorporates a higher potential for inordinate private influence that the traditional public is taking. The increased potential of and superiority of secret buying agents and inordinate private influence, eminent domain should be disfavored overall not to be used by private parties. The benefits of eminent domain powers can also not be ignored despite downturns. The relevant acquisition of private land by the government can be converted to an economic activity that would benefit a wider population. For example, the conversion of a private land for wildlife support cannot be overemphasized due to the robust benefits. Wildlife is a source of employment, food, a form of natural heritage, a reservoir for genes, a form of a tourist attraction and a principal component of the ecosystem (Slade 167). In sum, it the application of eminent domain powers for such public use provides biological, social, economic, educational, natural value, recreational, and environmental protection to both the present and future generations. Therefore, the taking of private property for public use would provide a wider benefits and lead to most of the world human problems. The ecological, nutritional, economic, and medical values of wildlife are far much more that private development and thus the benefit of eminent domain. The individualistic property ownership is protected by the Constitution, yet it is not limitless. The benefits of balancing the interest of private ownership with higher social interests for societal interests, future generations, and heritage justify the state’s intervention to exercise eminent domain powers. Therefore, the concept of absolute property ownership rights is unfavorable in the contemporary world as private ownership is best understood in the context of society. The use of eminent domain benefits the entire public rather than a single individual if the government projects become successful. The economic development of a country is driven mostly by government projects that offer support for business and transfer of services and goods. The economic value of a country is estimated by the level of infrastructural development that facilitates business and attracts foreign investment. For example, when the government exercises eminent domain powers to build a new highway, it mitigates the problems of traffic problems that would in turn benefit the locals and the commuters. This would result in saving of time and material resource essential for economic development. Spending hours in a traffic jam would cost the country great economic losses with regards to the time and human resource wasted in the jam. Furthermore, the eminent of powers of the domain is anchored in the Fifth Amendment that requires the government to offer just compensation to the actual property owners. The Kelo v. New London City provides a good example of the comprehensive development plan to boost the local economy (Kelo et al. 21). The eviction of residents and investors lured the pharmaceutical giants Pfizer that relocated its clinical trials to the scenic waterfront property.Conclusion Private property development offers insights into the free market system, yet taking of public property also leads to economic development. The matter, though still sparks heated debates between the opponents and the supporters of the eminent domain powers. The controversies witnessed in previous cases have made many states take a closer look at the issue that has begun to promote a reasonable reform. With reference to the lawful use of eminent domain powers, the holdout challenges offer economic justification for condemnation. The natural reform has the potential to propel the issue for mutual benefits by eliminating the inefficiencies of the eminent domain powers. In a nutshell, the theory of public use with reference to the role of secret buying agents provides a superior mechanism for both judicial and legislative decision-making.

References

Brock, Toll. The implications of eminent domain in Post-Kelo World. Major Themes in Economics, Spring. 2007. Internet Source. Retrieved from: http://business.uni.edu/economics/themes/toll.pdf
Burke, Robert. "Eminent Domain: Legal Challenges Expected to Define Meaning of Constitutional Amendment Expanding Property Rights." Virginia Business. 28.2 (2013): 66-68. Print.
Daniel Chen and Susan Yeh. “Growth under the shadow of expropriation?” The economic impacts of eminent domain. Harvard School of Law. Retrieved from: http://www.nber.org/~dlchen/papers/EminentDomain.pdf
Eminent Domain: Information About Its Uses and Effect on Property Owners and Communities Is Limited : Report to Congressional Committees. Washington, D.C.: U.S. Government Accountability Office, 2006. Internet resource. Retrieved from: http://www.gao.gov/new.items/d0728.pdf
Kelly, Daniel B. Reexamining the "public Use" Requirement in Eminent Domain: A Theory Based on Secret Buying Agents and the Potential for Corruption. , 2005. Print. Retrieved from: http://www.law.harvard.edu/programs/olin_center/fellows_papers/pdf/Kelly_5.pdf
Kelo, Susette, Thomas B. Metzloff, Sarah Wood, and Todd Shoemaker. Kelo V. City of New London: 545 U.s. 469 (2005). Durham, NC: Distinctive Aspects of American Law Video Project, Duke University School of Law, 2006.
Mehta, Lyla. Displaced by Development: Confronting Marginalisation and Gender Injustice. New Delhi, IN: Sage, 2009. Print.
Slade, B.V. ""public Purpose or Public Interest" and Third Party Transfers." Potchefstroom Electronic Law Journal. 17.1 (2014): 166-206. Print.
Thomas, Larry W, and James B. McDaniel. "Eminent Domain and Fair Market Value in a Depressed Real Estate Market." Legal Research Digest (national Cooperative Highway Research Program). (2014). Print.

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