poletown v detroit - Eminent domain refers to the right of...

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Eminent domain refers to the right of both state and federal governments to assume control over the geographical area under its jurisdiction. Also known as compulsory sale, it is typically invoked in order to secure land needed to complete a public works project. But the inherent nature of eminent domain disparately impacts the poor, and does not fully compensate them for their losses. Furthermore, it eliminates the ability of the free market to determine the most efficient allocation of resources; it prohibits the Smithian "invisible hand" from placing property in the possession of those who value it most. In recent years, beginning with Poletown Neighborhood Association v. City of Detroit (1981), the restrictions on eminent domain have been relaxed, creating a constitutionally questionable State power to transfer land title from private citizens to corporations. The rich can now take from the poor, with consent from Uncle Sam. Eminent domain is believed to be a natural right of government. The concept originated with William Blackstone, an 18 th century British judge, professor, philosopher, and author (Kelly). Many of his works, particularly Commentaries on the Laws of England , are considered by many historians and legal scholars to be a pre-Revolution source of common law, featuring language later used prominently in the U.S. Constitution. The following passage formed the basis of what became known as eminent domain: “For that reason it seems to have been contrived, that a power of resumption at the will of the lord, should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands." (Library of Nature and Nature’s God) The American equivalent to Blackstone's "power of resumption" is both granted and limited by the Fifth and Fourteenth Amendments to the U.S. Constitution. In addition to the renowned guarantees against double jeopardy and self-incrimination, the Fifth Amendment prohibits the federal government from depriving any person "of life, liberty, or property without due process of law." More precisely, the Fifth Amendment contains what is known as the takings clause : "...nor may private property be taken for public use without just compensation." The Fourteenth Amendment specifically extends these prohibitions to the state governments, although
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the states have great latitude in applying these principles. According to Richard Posner, Chief Justice of the Seventh District Court of Appeals, eminent domain allows the government to bypass "the holdout problem." When the government must acquire large tracts of contiguous, privately owned land by negotiating with individual owners, those individuals may hold out until all sellers have reached an agreement. Knowing that the success or failure of the entire project relies on their cooperation, each individual has an incentive to be the last one to sell, thereby gaining the ability to negotiate with monopoly power. This tends to inflate prices, delay transactions, and bias terms of agreement.
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This note was uploaded on 04/17/2008 for the course POLS 120 taught by Professor Dr.brent during the Winter '08 term at San Jose State University .

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poletown v detroit - Eminent domain refers to the right of...

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