A Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice

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Is just compensation the next big thing? This article identifies three issues in just compensation in eminent domain that may be on the horizon.

"WHEN THE U.S. SUPREME COURT began selectively applying the Bill of Rights to the states under the Fourteenth Amendment, it started with the Just Compensation Clause. The Fifth Amendment’s Takings Clause provides, of course, that “nor shall private property be taken for public use without just compensation.” “The critical terms are ‘property,’ ‘taken’ and ‘just compensation.’" In the past half-century, the Court has addressed—if not clarified—in what circumstances a valuable interest qualifies as “property” for purposes of the Takings Clause. The Court has also established the standards for when an exercise of the eminent domain power is “for public use.” However, guidance from the Court regarding the third part of the eminent domain equation, just compensation, has been largely absent. The last time the Supreme Court took up a just compensation case was nearly thirty years ago. The lack of scrutiny in the interim is not because the law governing compensation in condemnation cases is well-settled, uniformly applied, and truly “just.” A quick scan of state court decisions should make that painfully clear. To the contrary, the long absence of the Court’s attention has permitted some lower courts to wander in the jurisprudential wilderness, and apply compensation rules that differ from the established rules, with no discernible reason for the difference; sometimes with bizarre and inequitable results."

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Robert Thomas, Damon Key Leong Kupchak Hastert | Attorney Advertising

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