Eminent domain, or the power to take, is generally analyzed as the quintessential government power. It is unsurprising, therefore, that scholars tend to operate from the basic assumption that eminent domain is solely an incident of the government's domain in the provision of public goods. This assumption has led to widespread criticism of the courts' evisceration of the "public use" requirement, and repetition of the mantra that the government cannot simply take from A in order to give to B. In this Article, I show that this conception of takings is too narrow. In function, if not in name, eminent domain is simply another property arrangement, and, as such, it is adaptable to private property law even without state action. Indeed, private takings—that is, takings carried out by nongovernmental actors—have a solid basis in our legal system. Additionally, the justifications for government takings lend themselves just as well to private takings. Recognizing the importance and legitimacy of private takings leads to two central claims. First, I argue that private takings should often be a preferred mechanism for achieving goals generally accomplished today through public takings. Second, I show that identifying private takings as a vital category helps clarify the proper concerns of takings law—not only the constitutionally demanded "just compensation" offered for takings and the posttaking "public use," but also to the pretaking original use. Having made these central claims, I posit that a comprehensive law of takings can be developed that encompasses both private and public takings. In the realm of theory, the Article circumscribes the place of takings within the broader theory of entitlements by defining takings within the context of mixed property and liability ("pliability") rules. Normatively, the Article argues for the incorporation of private taking mechanisms into fields generally seen as the domain of classic property law and regulation.
University of Chicago Law Review: Vol. 76:
2, Article 1.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol76/iss2/1