DISCUSSION QUESTIONS 48 THE GOVERNMENT TYPICALLY USES ITS EMINENT

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DISCUSSION QUESTIONS

DISCUSSION QUESTIONS


48. The government typically uses its eminent domain power to purchase land to build schools, roads, and other government public works projects. Why do we allow the government to force parties to sell it property? Why not make the government bargain with the current owner like any other party that wishes to purchase land?


49. The courts have read the “just compensation” language of the Fifth Amendment to require that the government pay fair market value for any property it purchases using the Eminent Domain power. If the property owner is receiving a fair price, why do we need any limits on the government’s ability to exercise Eminent Domain? How is the property owner harmed?


50. What might “public use” mean as it is used in the Fifth Amendment? Why is this particular limitation placed on the government’s ability to force owners to sell their property?


51. Midkiff says that a government’s exercise of the Eminent Domain power will not violate the Public Use requirement if it is “rationally related to a conceivable state purpose.” Apply this “rational basis” test to the facts of Kelo.


52. The Supreme Court majority says in Kelo that it will give legislatures “broad latitude in determining what public needs justify the use of the takings power.” (P184) What arguments do you see that support this kind of deference to the legislature? What are the dangers of this approach?


53. What limits does the majority suggest there might be to its deferential approach to public use? What limits does Justice Kennedy suggest in his concurrence?


54. Justice O’Connor wrote the majority opinion in Midkiff. How does she distinguish that case in her dissent in Kelo? Is that distinction convincing?


55. What approach to public use does Justice Thomas advocate in his dissent? What are the strengths and weaknesses of that approach? Why does he believe that the interests of poorer citizens and people of color are particularly threatened by the majority’s approach? Is this concern convincing?


56. Keeping in mind that the states are free to put more limits on their own powers, how should the U.S. Supreme Court define public use for the purposes of the Federal Constitution?


57. Apply the “rational basis” test from Midkiff to the facts of Poletown. Would the facts of Poletown constitute a public use under the reasoning of the Kelo majority? Under the reasoning of Justice Kennedy’s concurrence?


58. The Poletown majority found the actions of the City of Detroit to be a public use, repeatedly making two points that could be viewed as legal tests:

(a) The public was the ‘primary beneficiary” of the use of Eminent Domain and the private benefit to GM was merely “incidental;” and

(b) The public benefit was “clear and significant.”

Apply these two formulations to the facts of Kelo.


59. In overruling Poletown in Hatchcock, the Michigan Supreme Court articulates three “situations” in which property acquired through Eminent Domain can legitimately end up in private hands. What is the justification for each situation? Do the facts in Kelo fit into one or more of these situations?


60. Explain the approach suggested by Professor Merrill described in note 5 (P196). How would Kelo and Poletown be resolved under that approach? What are the strengths and weakness of that approach as compared to the others used in Kelo and in the Michigan cases?




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