Print Vol. 104, Issue 4

Note

Rethinking “Just” Compensation: Dignity Restoration as a Basis for Supplementing Existing Takings Remedies with Government-Supported Community Building Initiatives

Alyssa M. Hasbrouck, B.A., Yale University, 2014; J.D., Cornell Law School, 2019; Notes Editor, Cornell Law Review, Vol. 104. I would like to thank Professor Laura Underkuffler for her unwavering confidence in me and for encouraging me throughout the process of writing this Note. Without her thoughtful feedback, this Note would not exist. Further, my thanks to Susan Green Pado and my colleagues on the Cornell Law Review for their diligent work on this Note during the publication process. Special thanks to Madelaine Horn, Doug Wagner, and Bryan Magee for selflessly going above and beyond to prepare this Note for publication, and for their intellectual camaraderie and support. Lastly, thank you to my parents—for your unconditional love and support since day one.

15 May 2019

“We have to give a damn. We have to give a damn about people staying in their home. We have to give a damn about poor and working-class folks, and about seniors who want to spend their sunset years in the homes that they know and love. We have to care, and our policies will follow our compassion.”1Cliff Albright, Gentrification Is Sweeping Through America. Here Are the People Fighting Back, GUARDIAN (Nov. 10, 2017, 5:00 AM) (quoting Tanya Washington), https://www.theguardian.com/us-news/2017/nov/10/atlanta-super-gen trification-eminent-domain [http://perma.cc/EJ2C-YKFN].

Professor Tanya Washington, Georgia State University College of Law

Soon after the Constitution was ratified, the Bill of Rights enshrined certain fundamental protections for individuals. The Fifth Amendment is among those crucial safeguards. Through its Takings Clause, the Fifth Amendment guarantees, “[N]or shall private property be taken for public use, without just compensation.”2 U.S. CONST. amend. V, cl. 4

Even though the Takings Clause may appear straightforward, the extent to which it restricts government action has been controversial.3See Alberto B. Lopez, Weighing and Reweighing Eminent Domain’s Political Philosophies Post-Kelo, 41 WAKE FOREST L. REV. 237, 239–41 (2006). Especially following the Supreme Court’s decision in Kelo v. City of New London,4545 U.S. 469 (2005) lawmakers and scholars alike have hotly debated the scope of the public use requirement.5See Lopez, supra note 3, at 241, n.23. Today, legislatures regularly invoke some version of “public use” when exercising the eminent domain power, seizing private land to build projects ranging from public parks6See Man Fights to Retain His Property Although City Claims Eminent Domain, CBS 46 (Aug. 7, 2018), http://www.cbs46.com/story/38826565/manfights-to-retain-his-property-although-city-claims-eminent-domain [https://perma.cc/32SQ-5YX3]. and hospitals7See Payne Horning, Eminent Domain Court Battle Looms over Utica Hospital Project, WRVO PUB. MEDIA (July 19, 2018), http://www.wrvo.org/post/eminentdomain-court-battle-looms-over-utica-hospital-project [https://perma.cc/5RKQ6FDT]. to privately owned sports arenas8See Charles V. Bagli, Ruling Lets Atlantic Yards Seize Land, N.Y. TIMES (Nov. 24, 2009), https://www.nytimes.com/2009/11/25/nyregion/25yards.html [https://perma.cc/YVG5-W4J7]. and manufacturing plants.9See Rikki Mitchell, Mount Pleasant May Take Remaining Properties in Fox-conn Area Through Eminent Domain, TMJ4 (May 9, 2018, 10:14 PM), https://www .tmj4.com/news/local-news/mount-pleasant-may-take-remaining-properties-infoxconn-area-through-eminent-domain [https://perma.cc/3RPG-ZM2G].

In stark contrast, the Takings Clause’s just compensation requirement has been ignored almost as much as the public use requirement has been scrutinized.10See Lopez, supra note 3, at 239. Indeed, the Supreme Court has largely abided by a singular notion of just compensation for more than a century: “just compensation is commonly considered the fair market value of the property at the time of the taking.”11Elisabeth Sperow, The Kelo Legacy: Political Accountability, Not Legislation, Is the Cure, 38 MCGEORGE L. REV. 405, 408 (2007) (first citing United States v. Miller, 317 U.S. 369, 374 (1945); then citing Olson v. United States, 292 U.S. 246 (1934) ). As a result, judges have rarely deviated from the fair market value standard.12The Court has occasionally deviated from this standard when addressing injuries caused by the taking of intangible property. See Shubha Ghosh, Toward a Theory of Regulatory Takings for Intellectual Property: The Path Left Open After College Savings v. Florida Prepaid, 37 SAN DIEGO L. REV. 637, 670–71 (2000) (“Intangible property, as well as real property, is special for the purposes of the Takings Clause. . . . The right to earn interest on principal is an intangible property interest. The Court has found it to be a special interest worthy of protection under the Takings Clause.”). However, the fair market value standard for the taking of real property has remained inflexible. See infra subpart I.A. But while just compensation doctrine has remained stagnant at the judicial level, scholars have long questioned the wisdom of fair market value as a meaningful tool of justice.13See James W. Ely, Jr., The Historical Context of Just Compensation, PRAC. REAL EST. LAW., May 2014, at 9, 14–15 (first citing W. Harold Bigham, “Fair Market Value,” “Just Compensation,” and the Constitution: A Critical View, 24 VAND. L. REV. 63, 67 (1970) (“To the extent that the existing use of the fair market value test prohibits compensation for consequential damages, however, the landowners [sic] compensation is inadequate, and he is in fact paying more than his fair share.”); then citing RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 51–56, 182–186 (1985) (“The central difficulty of the market value formula for explicit compensation, therefore, is that it denies any compensation for real but subjective values.”); and then citing United States v. Norwood, 602 F.3d 830, 834 (7th Cir. 2010) (acknowledging that “‘just compensation’ tends systematically to undercompensate the owners of property taken by eminent domain” and describing the Supreme Court’s approval of this shortfall as “a conclusion rather than a reason”).

This Note joins those criticisms. However, while existing scholarship has merely proposed alternative measures of financial compensation,14See Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 MICH. L. REV. 101, 148 (2006) (discussing existing scholarship and noting that “even accurate valuation methods may fail to make owners whole”). this Note contends that justice is fully served only when the government embraces nonmonetary means of compensation as a way to supplement existing monetary remedies.15The Takings Clause applies to the federal government and state governments. See Chi., B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 239–41 (1897). Notably, the Takings Clause was the first provision from the Bill of Rights to be incorporated, through the Fourteenth Amendment’s Due Process Clause, as applicable to the states. See Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 HARV. J.L. & PUB. POL’Y 551, 604 (2003). To the extent that Chicago interprets the Takings Clause beyond the meaning that was intended at the time of ratification, the Supreme Court has long recognized that the meaning of the Takings Clause, including the just compensation requirement, continuously evolves. Money damages are a logical fix for economic injuries, but money only goes so far. Where displaced individuals are also subjected to dignitary harms, the government only fulfills its obligation to provide just compensation through the process of dignity restoration. 

To illustrate the need for a broader understanding of just compensation, this Note turns to America’s long history of blight condemnations and urban renewal. Part I provides an overview of relevant Takings Clause jurisprudence and contextualizes our understanding of just compensation in relation to the ever-evolving public use doctrine. It then examines existing criticisms of the fair market value standard, before situating dignity as a value inherent within those criticisms and as a constitutional value already recognized by the courts. Building on that background, Part II applies Professor Bernadette Atuahene’s “dignity takings” thesis to urban renewal and urban displacement, exposing the dire need to broaden the meaning of just compensation. It then argues that government actors are constitutionally obligated to support neighborhood-based initiatives aimed at restoring dignity to the communities traditionally uprooted by urban redevelopment and proposes several ways that the government can fulfill this obligation. 

To read more, click here: Rethinking “Just” Compensation: Dignity Restoration as a Basis for Supplementing Existing Takings Remedies with Government-Supported Community Building Initiatives.

References   [ + ]

1. Cliff Albright, Gentrification Is Sweeping Through America. Here Are the People Fighting Back, GUARDIAN (Nov. 10, 2017, 5:00 AM) (quoting Tanya Washington), https://www.theguardian.com/us-news/2017/nov/10/atlanta-super-gen trification-eminent-domain [http://perma.cc/EJ2C-YKFN].
2.  U.S. CONST. amend. V, cl. 4
3. See Alberto B. Lopez, Weighing and Reweighing Eminent Domain’s Political Philosophies Post-Kelo, 41 WAKE FOREST L. REV. 237, 239–41 (2006).
4. 545 U.S. 469 (2005)
5. See Lopez, supra note 3, at 241, n.23.
6. See Man Fights to Retain His Property Although City Claims Eminent Domain, CBS 46 (Aug. 7, 2018), http://www.cbs46.com/story/38826565/manfights-to-retain-his-property-although-city-claims-eminent-domain [https://perma.cc/32SQ-5YX3].
7. See Payne Horning, Eminent Domain Court Battle Looms over Utica Hospital Project, WRVO PUB. MEDIA (July 19, 2018), http://www.wrvo.org/post/eminentdomain-court-battle-looms-over-utica-hospital-project [https://perma.cc/5RKQ6FDT].
8. See Charles V. Bagli, Ruling Lets Atlantic Yards Seize Land, N.Y. TIMES (Nov. 24, 2009), https://www.nytimes.com/2009/11/25/nyregion/25yards.html [https://perma.cc/YVG5-W4J7].
9. See Rikki Mitchell, Mount Pleasant May Take Remaining Properties in Fox-conn Area Through Eminent Domain, TMJ4 (May 9, 2018, 10:14 PM), https://www .tmj4.com/news/local-news/mount-pleasant-may-take-remaining-properties-infoxconn-area-through-eminent-domain [https://perma.cc/3RPG-ZM2G].
10. See Lopez, supra note 3, at 239.
11. Elisabeth Sperow, The Kelo Legacy: Political Accountability, Not Legislation, Is the Cure, 38 MCGEORGE L. REV. 405, 408 (2007) (first citing United States v. Miller, 317 U.S. 369, 374 (1945); then citing Olson v. United States, 292 U.S. 246 (1934) ).
12. The Court has occasionally deviated from this standard when addressing injuries caused by the taking of intangible property. See Shubha Ghosh, Toward a Theory of Regulatory Takings for Intellectual Property: The Path Left Open After College Savings v. Florida Prepaid, 37 SAN DIEGO L. REV. 637, 670–71 (2000) (“Intangible property, as well as real property, is special for the purposes of the Takings Clause. . . . The right to earn interest on principal is an intangible property interest. The Court has found it to be a special interest worthy of protection under the Takings Clause.”). However, the fair market value standard for the taking of real property has remained inflexible. See infra subpart I.A.
13. See James W. Ely, Jr., The Historical Context of Just Compensation, PRAC. REAL EST. LAW., May 2014, at 9, 14–15 (first citing W. Harold Bigham, “Fair Market Value,” “Just Compensation,” and the Constitution: A Critical View, 24 VAND. L. REV. 63, 67 (1970) (“To the extent that the existing use of the fair market value test prohibits compensation for consequential damages, however, the landowners [sic] compensation is inadequate, and he is in fact paying more than his fair share.”); then citing RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 51–56, 182–186 (1985) (“The central difficulty of the market value formula for explicit compensation, therefore, is that it denies any compensation for real but subjective values.”); and then citing United States v. Norwood, 602 F.3d 830, 834 (7th Cir. 2010) (acknowledging that “‘just compensation’ tends systematically to undercompensate the owners of property taken by eminent domain” and describing the Supreme Court’s approval of this shortfall as “a conclusion rather than a reason”).
14. See Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 MICH. L. REV. 101, 148 (2006) (discussing existing scholarship and noting that “even accurate valuation methods may fail to make owners whole”).
15. The Takings Clause applies to the federal government and state governments. See Chi., B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 239–41 (1897). Notably, the Takings Clause was the first provision from the Bill of Rights to be incorporated, through the Fourteenth Amendment’s Due Process Clause, as applicable to the states. See Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 HARV. J.L. & PUB. POL’Y 551, 604 (2003). To the extent that Chicago interprets the Takings Clause beyond the meaning that was intended at the time of ratification, the Supreme Court has long recognized that the meaning of the Takings Clause, including the just compensation requirement, continuously evolves.

Install this web app to your home screen:
click the Safari Install Icon icon and select "Add to Home Screen."

––––––––––––––––––––––––––––––––––––––––––––––––––