Abstract
Our thesis is that eminent domain is both legally impracticable and economically unnecessary for development and prosperity. We offer a brief history of eminent domain law. This law is then criticized on the grounds that all three of its main elements are highly problematic: takings, the public use exception, and just compensation. Finally, economic analysis shows that development and prosperity would be accomplished without the power of eminent domain because private parties’ self-interest would be served by selling to developers who offer a fair price, and even where holdouts still refuse to sell, their holdings can usually be built over, under, or around.
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Notes
- 1.
See generally Plato, The Republic.
- 2.
See, for example, The Bible Mt 22:17 When asked whether it was lawful to pay taxes, Jesus replied, “Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s.”
- 3.
John E. Nowak & Ronald D. Rotunda, Constitutional Law § 11.11, at 424–25 (4th ed. 1991).
- 4.
Id.
- 5.
1 Blackstone 135.
- 6.
William Michael Treanor, Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 695 (1985).
- 7.
Id. at 700.
- 8.
Id.
- 9.
Id.
- 10.
Brown v. Legal Foundation of Wash., 538 U.S. 216 231–232, 123 S. Ct. 1406, 155 L. Ed. 2d 376 (2003).
- 11.
See Jack N. Rackove, Original Meanings 330–31 (1996).
- 12.
William Michael Treanor, Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694, 708–09.
- 13.
Id.
- 14.
William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 835 (1995) (Hereinafter “Original Understanding”).
- 15.
James Wilson, Speech Oct. 6, 1787, reprinted in Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates 184 (Signet Classic 2003).
- 16.
545 U.S. 469, 125 S. Ct. 2655 (2005).
- 17.
See The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Ketcham, supra footnote 15, at 237–256.
- 18.
See generally Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press 1985). Roy Whitehead & Walter Block, Environmental Takings of Private Water Rights: the Case for Full Water Privatization, Environmental Law Reporter 11162–11176 (2002).
- 19.
Treanor, Original Understanding supra footnote 14, at 782.
- 20.
Pennsylvania Coal v. Mahon, 260 U.S. 393, 415 (1922).
- 21.
Treanor, Original Understanding supra footnote 14, at 782; Daniel A. Farber, Public Choice and Just Compensation, 9 Const Commentary 279, 279 (1992); Saul Levmore, Just Compensation and Just Politics, 22 Conn. L. Rev. 285, 287 (1990).
- 22.
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1006–7 (1992).
- 23.
Id. at 1007.
- 24.
Nicole M. Lugo, Case Note, Dolan v. City of Tigard: Paving New Bicycle Paths Through the Thickets of the Fifth Amendment’s Takings Clause, 48 Ark. L. Rev. 823, 829 (1995).
- 25.
Dolan v. City of Tigard, 512 U.S. 374, 396, 114 S. Ct. 2309, 2322 (1994).
- 26.
Dwight H. Merriam, What is the Relevant Parcel in Takings Litigation?, in 1999 Zoning and Planning Law Handbook 353, 370 (Deborah A. Mans ed. 1999).
- 27.
City of Annapolis v. Waterman, 745 A.2d 1000, 1012 (MD 2000).
- 28.
Charles E. Cohen, Eminent Domain After Kelo v. City of New London: An Argument for Banning Economic Development Takings, 29 Harv. J.L. & Pub. Pol’y 491, 501 (2006).
- 29.
Alberto B. Lopez, Weighing and Reweighing Eminent Domain’s Political Philosophies Post-Kelo, 41 Wake Forest L. Rev. 237, 256 (2006).
- 30.
Id. at 505–06.
- 31.
John Lewis, A Treatise on the Law of Eminent Domain in the United States §164 (Chicago, Callaghan & Co. 1888).
- 32.
Philip Nichols, Jr., The Meaning of Public Use in the Law of Eminent Domain, 20 B.U.L. Rev. 615, 624 (1940). See id. at 618–24 (giving details of evasions). See also Errol E. Meidinger, The “Public Uses” of Eminent Domain: History and Policy, 11 Envt’l L. 1, 24(1980).
- 33.
Compare, for example, Aldridge v. Tuscumbia, Courtland, & Decatur RR., 2 Stew. & P. 199, 203 (Ala. 1832) (upholding the exercise of eminent domain for purposes of constructing a railroad), to Pittsburg, Wheeling & Ky. R.R. v. Benwood Iron-Works, 8 S.E. 453, 467 (W. Va. 1888)(reversing a lower court decision to allow a railroad company to condemn land pursuant state statute) (cited in Lopez, supra footnote 29, at n.132.
- 34.
Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 164 (1896) (cited and quoted in Lopez, supra footnote 19 at 263.
- 35.
Lopez, supra footnote 29, at 260 (and citations therein).
- 36.
United States v. Gettysburg Electric R. Co., 160 U.S. 668 (1896).
- 37.
Id. at 680.
- 38.
Berman v. Parker, 348 U.S. 26, 33 (1954).
- 39.
Id. at.
- 40.
Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 232 (1984). Traditionally, an island high chief controlled the land, assigning it for development to subchiefs, who would then reassign the land to lower-ranking chiefs, who would administer the land and govern farmers and other tenants. As a result, 49% of Hawaii’s land was owned by State and Federal Governments while another 47% was controlled by the feudal system, causing a severe shortage of land available for housing.
- 41.
Id. at 243–44.
- 42.
Kelo v. City of New London, 125 S. Ct. 2655, 2658 (2005).
- 43.
Id. at 2660.
- 44.
Id. at 2659. Pfizer had plans for a $300 million research facility, and the development was to include a hotel with restaurants and shopping, marinas, a pedestrian “riverwalk,” 80 new residences, a new US Coast Guard Museum, and other office and retail venues. Id.
- 45.
Id. at 196.
- 46.
Id. at 2659, 2665.
- 47.
Id. at 2671 (O. Connor. J., dissenting).
- 48.
Id. at 2675.
- 49.
Id. at 2674–75.
- 50.
Id. at 2677 (Thomas, J. Dissenting).
- 51.
Id.
- 52.
Id. at 2680.
- 53.
Id. at 2679.
- 54.
Id. at 2682.
- 55.
Art Rolnick & Phil Davies, The Cost of Kelo, 20 Fed. Reserve Bank Region 12 at ∗8 2006 WLNR 11063440 (June 1, 2006).
- 56.
Housing and Community Development Act of 1974, Pub. L. No. 93–383, § 116, 88 Stat. 652 (codified at 42 U.S.C. § 5316 (2000); see 42 U.S.C. §§ 1450–1451 (sections omitted pursuant to § 5316); see also Jane Jacobs, The Death and Life of Great American Cities 311–14 (Vintage Books 1992) (criticizing urban renewal and public housing programs as “inherently wasteful ways of rebuilding cities.”
- 57.
Id. at ∗7.
- 58.
Dale A. Whitman, Eminent Domain Reform in Missouri: A Legislative Memoire, 71 Mo. L. Rev. 721, 757 (2006).
- 59.
Dale A. Whitman, Eminent Domain Reform in Missouri: A Legislative Memoire, 71 Mo. L. Rev. 721, 736 (2006).
- 60.
Richard A. Epstein, Kelo: An American Original, 8 Green Bag 2d 355, 360 (2005).
- 61.
Peter W. Salsich, Jr., Privatization and Democratization – Reflections on the Power of Eminent Domain, 50 St. Louis U. L.J. 751, 755 (2006), discussing controversy surrounding the exercise of eminent domain with regard to a development project in the St. Louis suburb of Sunset Hills.
- 62.
Id.
- 63.
See Castle Coalition, Enacted Legislation, available at www.castlecoalition.org/legislation/passed/index.html, listing post-Kelo eminent domain legislation.
- 64.
Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act for FY 2006, Pub. L. 109–115, Title VII, § 726 (Nov. 30, 2005): “No funds in this Act may be used to support any Federal, State, or local projects that seek to use the power of eminent domain, unless eminent domain is employed only for a public use: Provided, That for purposes of this section, public use shall not be construed to include economic development that primarily benefits private entities….”
- 65.
See United States v. 564.54 Acres of Land, 441 U.S. 506, 510 (1979); United States v. Miller, 317 U.S. 369, 373 (1943); Olson v. United States, 292 U.S. 246, 255 (1934); Campbell v. United States, 266 U.S. 368 (1924); Seaboard Airline R. Col. V. United States, 261 U.S. 299, 304 (1923) (all holding that just compensation requires that the owner be put in substantially the same position pecuniarily as if he would have been if his property had not been taken).
- 66.
Michael DeBow, Unjust Compensation: The Continuing Need for Reform, 46 S.C. L. Rev. 579, 580 (1995).
- 67.
Patricia Munch, An Economic Analysis of Eminent Domain, 84 J. Pol. Econ. 473, 473 (1976).
- 68.
See 564.54 Acres of Land, at 511; United States v. Cors, 337 U.S. 325, 332 (1949); United States v. Fuller, 409 U.S. 488, 490 (1973); United States ex rel. Tenn. Valley Auth. v. Powelson, 319 U.S. 266, 280 (1943); Miller, 317 U.S. at 375.
- 69.
But see Bruce Benson, The Mythology of Holdout as a Justification for Eminent Domain and Public Provision of Roads, 10 Independent Review 165–194 (Fall 2005), arguing that whatever the “holdout” demands is the market price.
- 70.
Nathan Burdsal, Note, Just Compensation and the Seller’s Paradox, 20 Brigham Young U. J. Pub. L. 79, 82 (2005), and sources cited nn.14–19.
- 71.
Id.
- 72.
See id. at 87–88. See also United States v. Bodcaw Co., 440 U.S. 202, 204, 99 S. Ct. 1066, 1067 (1979) (holding that appraisal expenses and expert witness expenses are not part of the “just compensation” required by the Fifth Amendment).
- 73.
See Burdsal, supra footnote 70, at 85, 90; Thomas Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61, 77–78 (1986).
- 74.
Property Rights Victories, The Orange County Register, Nov. 26, 2000, cited in Burdsal, supra footnote 46, at 90.
- 75.
See Walter Block, Watch your Language (Feb. 21, 2000), critiquing this terminology, available at; http://www.mises.org/fullarticle.asp?control=385&month=17&title=Watch+Your+Language&id=19
- 76.
Id. at 89.
- 77.
Kirby Forest Indus. v. United States, 467 U.S. 1, 10 (1984); United States v. 564.54 Acres of Land, 441 U.S. 506, 511 (1979); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 474 (1973); United States v. Virginia Elec. & Power Co., 365 U.S. 624, 633 (1961); United States v. Miller, 317 U.S. 369, 374 (1943).
- 78.
Burdsal, supra footnote 70, at 91–92.
- 79.
Anthony Gregory, The Trouble with “Just Compensation,” (Dec. 5, 2006), available at http://mises.org/story/2379.
- 80.
Happily, state and local governments are free to provide protection higher than that provided in the US Constitution as interpreted by the Supreme Court. See supra text at footnote 63–64 discussing post-Kelo legislation; Whitman, supra footnote 58 at 744, discussing “heritage value” measure of compensation as provided by Missouri statutes. But see id. at 758 pointing out that the post-Sunset Hills, Missouri legislation would not have benefited owners who had sold their homes under the mere threat of eminent domain.
- 81.
See supra text accompanying footnotes 15–17.
- 82.
Michael Oakshott, On Human Conduct 119, 139, 181, 153–58, 234–5, 286, 315 (Oxford University 2003); see also Hayak, supra footnote 83, at 94–98.
- 83.
James Madison, Federalist 10.
- 84.
This is true in the modern day. This sort of “conventional wisdom” will readily concede that in a bygone era, it was possible to construct LTTs without the benefit of eminent domain. For example, J.J. Hill was able to build railways with no government help (DiLorenzo, 2004).
- 85.
In Canada, eminent domain is called expropriation.
- 86.
The authors of the present paper make their homes in these two states.
- 87.
The United States has the highest incarceration rate in the world, see study available at http://www.google.ca/search?hl=en&q=The+U.S.+has+the+highest+incarceration+rate+in+the+world+&btnG=Search&meta= and it is only 500 per 100,000, statistics at http://www.ojp.usdoj.gov/bjs/glance/incrt.htm.
- 88.
See Giving Statistics, available at http://www.charitynavigator.org/index.cfm/bay/content.view/cpid/42; http://nccsdataweb.urban.org/FAQ/index.php?category=31, presenting statistics analyzing the sources of widespread charitable giving in the United States.
- 89.
See generally Adam Clanton, Enforcing Individual Rights in an Industrial World: Legal Rules and Economic Consequences, 4 Georgetown J. L. & Pub. Pol. 165 (Winter 2006).
- 90.
Or terminal stupidity. It is possible that some may yet hope for that bonanza of $1 trillion, but in any free enterprise society worthy of the name, it is likely people of this ilk will not end up owning any large tracts of land.
- 91.
For the argument that private interests will likely be able to build LTTs, and the government is therefore not needed at least in the case of roads, see Block, Walter. 2007, forthcoming. Privatize The Highways. Auburn, AL: The Mises Institute.
- 92.
We are now assuming a free market environment, where giving bribes to the legislature to prevent the entry of alternative firms is not an option.
- 93.
Walter Block & Richard A. Epstein, Walter Block v. Richard Epstein, Debate on Eminent Domain, 1 NYU J. L. & Lib. 1144–1169 (2005).
- 94.
An example of this is the kind of rerouting that occurred in Worcester, Massachusetts, with the building of US Interstate 290, near exit 11. The road curves around the College of the Holy Cross, which was politically strong enough to “hold out” against the straight-line development of this thoroughfare, which might well otherwise have occurred. See map available at http://www.mapquest.com/maps/map.adp?formtype=address&country=US&popflag=0&latitude=&longitude=&name=&phone=&level=&addtohistory=&cat=&address=1+College+St&city=Worcester&state=MA&zipcode=01610-2322.
- 95.
It might be thought that the authors of the present paper look upon the holdout as some sort of “enemy.” After all, but for him, our case would be easy to make that eminent domain laws are unnecessary in a free society. Nothing could be further from the truth. As it happens, we look upon the holdout with a certain wry approval. Yes, he can be a pest, but his presence is emblematic of the essence of private property rights in a free society. For example, you will never see an edifice constructed under the control of the USSR with a “piece” cut out of it. All such buildings are squares or regular rectangles. It is evidence of the relative freedom prevailing in the United States that every once in a while there will be a high rise edifice with an irregular base. Sometimes, there is (or was) a little house belonging to a holdout in this space. Sometimes, an empty lot. In one case on Canal Street in New Orleans, a Sheraton hotel was built over and around an old drugstore whose owner held out—thus the high-rise was built lacking a pyramidal section in its base, in which nestled the drugstore. Apparently, when the owner died, the heirs sold the property to Sheraton, which promptly tore down the drugstore and filled in the missing piece. Such anomalies bear testimony to the protection of property rights and freedom from contract, two concepts which are bulwarks of commercial success in the United States.
- 96.
Walter Block & Mathew Block, Roads, Bridges, Sunlight and Private Property Rights, VII Journal Des Economistes Et Des Études Humaines 351–362 (June-September 1996).
- 97.
According to the ad coelum doctrine, the owner of surface land also owns territory stretching below it, in a decreasing cone shape, all the way down to the center of the earth, and up into the heavens, in an increasing cone shape. But this doctrine is incompatible with the libertarian principle of homesteading. Walter Block, Homesteading City Streets; An Exercise in Managerial Theory, 5 Planning and Markets 18–33 (September 2002), available at http://www-pam.usc.edu/volume5/v5i1a2s1.html; http://www-pam.usc.edu/; Walter Block, On Reparations to Blacks for Slavery, 3 Human Rights Review 53–73 (September 2002); Walter Block & Guillermo Yeatts, The Economics and Ethics of Land Reform: A Critique of the Pontifical Council for Justice and Peace’s “Toward a Better Distribution of Land: The Challenge of Agrarian Reform, 15 Journal of Natural Resources and Environmental Law 37–69 (1999–2000); Block v. Epstein, supra footnote 95; Block, Walter. 1990. “Earning Happiness Through Homesteading Unowned Land: a comment on ‘Buying Misery with Federal Land’ by Richard Stroup,” Journal of Social Political and Economic Studies, Vol. 15, No. 2, Summer, pp. 237–253; Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy, (Kluwer Academic Publishers 1993); John Locke, An Essay Concerning the True Origin, Extent, and End of Civil Government, in E. Barker, ed., Social Contract 17–18 (Oxford University Press 1948); Ellen Frankel Paul, Property Rights and Eminent Domain (1987); Murray N. Rothbard, For a New Liberty (Macmillan, New York 1973), available at http://www.mises.org/rothbard/newliberty.asp; Michael Rozeff, Original Appropriation and its Critics (September 1, 2005), available at http://www.lewrockwell.com/rozeff/rozeff18.html and thus must be rejected in the free society of which we are speaking. After all, the owner of surface land never came within 500 miles of “mixing his labor” with territory 500 miles below it. For criticisms of ad coelum, see Rothbard (1982). One practical difficulty with ad coelum is that air flight would be rendered just about impossible.
- 98.
Block & Block, supra footnote 93; Block, Walter. 1998. “Roads, Bridges, Sunlight and Private Property: Reply to Gordon Tullock,” Journal des Economistes et des Etudes Humaines, Vol. 8, No. 2/3, June-September, pp. 315–326, available at http://141.164.133.3/faculty/Block/Blockarticles/roads2_vol8.htm; Compare to Gordon Tullock, Comment on “Roads, Bridges, Sunlight and Private Property,” by Walter Block and Matthew Block, 7 Journal des Economistes et des Etudes Humaines, 589–592 (December 1996).
- 99.
By how many feet below person A’s land must person B build? The libertarian criterion is that B not interfere with the peaceful legitimate use of A of his property. So, again, we ask, how many feet below must B build below A’s holdings? It depends upon how solid is the land involved, and what exists on the surface. If we are talking of the island of Manhattan, which is virtually solid rock, where there are buildings on the surface extending no more, typically, than 100 feet underneath, then not too far below at all: the rock is strong enough that the buildings above will not cave in. If territory near New Orleans is under discussion, then very deep indeed, as well as the extra cost required to prevent water seepage. For this land is swampy (query: where have all the swamps gone? Answer: they have been replaced by wetlands.) If A has an apple orchard, then B cannot get too close to the trees’ roots lest he interferes with their growth. If there are only corn plants there, whose roots do not extend down as far, then B can build much closer to the surface.
- 100.
We abstract from the possibilities of making end runs up and down either the Atlantic or the Pacific Ocean.
- 101.
Well, ok, not a single geometrical point. Rather, a distance necessary to accommodate the north-south LTT. For a pipeline, what is this, ten feet? For a four-lane highway, perhaps 100 feet, including shoulders.
- 102.
A thousand pardons. If the holdout totally prevents the LTT, he garners nothing from his preventative efforts.
- 103.
Getting a “stop” in basketball takes great initiative, talent, and athleticism. It is by no means a passive accomplishment.
- 104.
Standard Oil began as an Ohio partnership formed by industrialist John D. Rockefeller, his brother William, Henry Flagler, chemist Samuel Andrews, and silent partner Stephen V. Harkness. Standard Oil Co. of New Jersey v. United States, available at http://www.answers.com/topic/standard-oil-co-of-new-jersey-v-united-states (hereinafter “Answers”. The period following the war of 1861–1865 was a time of unparalleled growth for the American economy, attributable to several factors: the emergence of national markets for manufactured products, the innovation of new technologies capable of manufacturing goods in larger quantities, and the generation of vast amounts of capital necessary for financing this growth. Eleanor M. Fox & Lawrence A. Sullivan, Antitrust – Retrospective and Prospective: Where Are We Coming From? Where Are We Going?, 62 N.Y.U. L. Rev. 936, 937–38 (1987). By the late 1870s and early 1880s, companies were seeking ways to obtain relief from unrelenting competition as well as innovating ways to organize and manage increasingly giant enterprises. See id. at 939, Answers; also Kolko, Gabriel. 1963. Triumph of Conservatism, Chicago: Quadrangle Books. According to most historians, one such enterprise was Standard Oil, which absorbed or obtained control over most of its competition in Cleveland Ohio, and then throughout the northeastern U.S., putting numerous small companies out of business (for an alternative view, see John McGee, Predatory Price Cutting: The Standard Oil (New Jersey) Case, The Journal of Law and Economics 137–169 (October 1958)). Rockefeller pioneered the trust as a legally enforceable way to unify control over a large number of corporations: trust certificates for common stock in the different corporations were exchanged among industry leaders, and by virtue of holding this common stock, the trust gained legal control over member corporations. Often a trust resembled a cartel because it concerned itself primarily with price and output decisions, not with the firms’ actual operations. Fox at 940.
Negative reaction to the business trusts led to the Sherman Antitrust Act in 1890. 15 U.S.C. §§ 1–7 (1988). Although Ohio successfully sued Standard Oil and compelled the dissolution of its trust in 1892, the company separated off only Standard Oil of Ohio, without relinquishing control. Answers. When in 1899 New Jersey changed its incorporation laws to allow a single company to hold shares in other companies in any state, the Standard Oil Trust was legally reborn as a holding company. Eventually, the US Justice Department sued Standard Oil of New Jersey under the Sherman Act, and Standard Oil was forced to separate into 34 companies, each with its own distinct board of directors. Id. These companies formed the core of today’s US oil industry, including ExxonMobil, ConocoPhillips, Chevron, Amoco and Sohio (now BP of North America), Atlantic Richfield, Marathon, and many other smaller companies.
For a critique of all anti-trust legislation as incompatible with free enterprise and private property rights, see Anderson, William, Walter Block, Thomas J. DiLorenzo, Ilana Mercer, Leon Snyman, and Christopher Westley. 2001. “The Microsoft Corporation in Collision with Antitrust Law,” The Journal of Social, Political and Economic Studies, Vol. 26, No. 1, Winter, pp. 287–302; Armentano, Dominick T. 1999. Antitrust: The Case for Repeal. Revised 2nd ed., Auburn AL: Mises Institute; Block, Walter. 1994. “Total Repeal of Anti-trust Legislation: A Critique of Bork, Brozen and Posner, Review of Austrian Economics, Vol. 8, No. 1, pp. 35–70; Boudreaux, Donald J., and DiLorenzo, Thomas J. 1992. “The Protectionist Roots of Antitrust,” Review of Austrian Economics, Vol. 6, No. 2, pp. 81–96; DiLorenzo, Thomas J. 1996. “The Myth of Natural Monopoly,” Review of Austrian Economics, Vol. 9, No. 2, pp. 43–58; http://www.mises.org/journals/rae/pdf/rae9_2_3.pdf; DiLorenzo, Tom and Jack High. 1988. “Antitrust and Competition, Historically Considered,” Economic Inquiry, July; McChesney, Fred. 1991. “Antitrust and Regulation: Chicago’s Contradictory Views,” Cato Journal, Vol. 10; Murray N. Rothbard. 1970. Man, Economy and State, Los Angeles, Nash; Shugart II, William F. 1987. “Don’t Revise the Clayton Act, Scrap It!,” 6 Cato Journal, 925; Smith, Jr., Fred L. 1983. “Why Not Abolish Antitrust?” Regulation, Jan-Feb, 23.
- 105.
See generally John McGee, supra footnote 104.
- 106.
Can the forestaller object that he wants to “contemplate” the big hole, for example, use it for aesthetic purposes? He cannot. See Walter Block, “Homesteading, Ad Coelum, Owning Views and Forestalling.” (unpublished)
- 107.
See supra text accompanying footnotes 47–64, discussing reactions to Kelo. Of course, for the radical libertarian, it might be preferable to use land seizure in this way. At least the land stays in the private sector, always a desideratum. Stephan N. Kinsella, A Libertarian Defense of Kelo and Limited Federal Power (August 28, 2005), available at http://www.lewrockwell.com/kinsella/kinsella17.html; see also Block, Walter. 2006. “Coase and Kelo: Ominous Parallels and Reply to Lott on Rothbard on Coase,” Whittier Law Review, Vol. 27, No. 4, pp. 997–1022; Epstein, Richard. 2005. “Blind Justices: The scandal of Kelo v. New London.” Wall Street Journal, July 3. http://www.opinionjournal.com/extra/?id=110006904.
- 108.
- 109.
See the socialist calculation literature on this vital point: Boettke, Peter J. 2001. Calculation and Coordination: Essays on Socialism and Transitional Political Economy. London: Routledge, 2001. http://www.mises.org/etexts/cc.pdf; Ebeling, Richard M. 1993. “Economic Calculation Under Socialism: Ludwig von Mises and His Predecessors,” in Jeffrey Herbener, ed., The Meaning of Ludwig von Mises, Norwell, MA: Kluwer Academic Press, pp. 56–101; Hayek, F.A. 1948. “Socialist Calculation I, II, & III,” Individualism and Economic Order, Chicago: University of Chicago Press; Herbener, Jeffrey M. 1996. “Calculation and the Question of Mathematics,” Review of Austrian Economics, 9(1), pp. 151–162; Hoff, Trygve J.B. 1981. Economic Calculation in a Socialist Society, Indianapolis: Liberty Press.
- 110.
Kelo (2005) is only the last in a long line of such cases. See on this Block, 2006; Epstein, 2005; Kelo, 2005; Kinsella, 2005.
- 111.
It is an Austrian economic insight that the market rarely if ever, and if so, only temporarily so, settles at any such optimal point. Rather, tastes and the supply and demand for substitutes and complements of these two goods are always changing. The market, then, is a process, which at all times “aims” at congruency between tastes and supply and demand for items, on the one hand, and allocations of them on the other. Richard M. Ebeling, Richard M., ed., Money, Method, and the Market Process, (Kluwer Academic Publishers 1990): David Gordon, What Should Anti-Economists Do? Review of The market process: essays in contemporary Austrian economics (Peter J. Boettke and David L. Prychitko; Edward Elgar, 1994. XV + 304 pgs. (Mises Review, Spring 1995), available at http://www.mises.org/misesreview_detail.asp?control=81&sortorder=issue.
- 112.
Rothbard, Murray N. (1993 [1962]). Man, Economy, and State, 2 vols., Auburn, AL: Ludwig von Mises Institute, p. 572; http://www.mises.org/rothbard/mespm.pdf.
- 113.
Id.
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Block, W.E. (2019). Eminent Domain: A Legal and Economic Critique. In: Property Rights. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-28353-7_14
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