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


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."

LOADING PDF: If there are any problems, click here to download the file.

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

Written by:


Damon Key Leong Kupchak Hastert on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.