Irrelevance of “Public Use” in State Eminent Domain Reforms

Abstract

“Public use” is a constitutional limitation on the governmental authority to take private property using eminent domain. This study finds that it is irrelevant, an artifact of the federal constitution, in state reforms enacted in the last decade. Expansive language permitting economic development and private development have rendered public use to be merely symbolic. Forty-six states enacted takings reforms following Kelo v. New London, a landmark U.S. Supreme Court decision in 2005; approximately 80% of those states allow economic or private takings while also invoking the public use. This mixed-method analysis and normative theoretical grounding explain stark contradictions in the prevailing reforms nationwide, resulting in substantive implementation challenges that may be mitigated by sensitivity to regime values, one of which is property.