For what purposes should the government be able to take private property?
For what purposes should the government be able to take private property? When I first started writing about that question, I thought there was little chance anyone outside the United States would ever be interested in my work. Most of my scholarship in that area focused on the Fifth Amendment requirement that takings must be for a “public use,” and the ways in which American courts have often neglected it. In 2005, the US Supreme Court decided Kelo v. City of New London, a controversial 5-4 ruling in which the majority concluded that a “public use” could be almost anything the government says it is, and upheld the taking of fifteen homes in order to transfer them to a new private owner, so as to enhance “economic development.” Kelo generated widespread outrage in the United States, and rekindled a debate over the law and policy of takings, which I chronicled in my book The Grasping Hand.
But, to my surprise, the American debate over Kelo generated widespread interest abroad, as well. I was contacted by scholars and journalists as far away as China, France, and South Korea. The Kelo case struck a chord in these and other countries because they have been grappling with many of the same issues as we had. In 2014, I was invited to teach a course on property rights at Zhengzhou University in China. Despite obvious differences between the two countries, I found that the Chinese debate over takings had many parallels with our own.
I was not the first scholar to notice these similarities. In Eminent Domain: A Comparative Perspective, Korean law and economics scholars Iljoong Kim, Hojun Lee, bring together a variety of contributors who examine the use and abuse of eminent domain in many jurisdictions around the world. They include Germany, Taiwan, the United States, and an overview of the use of eminent domain in developing nations, among others. The last part of the volume provides an in-depth examination of eminent domain in South Korea, a nation whose policies are an important test case, and a model often held up for emulation by other Asian states. The book arose from a conference sponsored by the Korea Development Institute, a leading Korean research institute.
Although there is considerable variation between the nations covered in the book, we also found some important commonalities. In a variety of nations, eminent domain is often used in ways that benefit politically influential groups at the expense of the poor and the politically weak. The pattern familiar from the sad history of “blight” and economic development takings in the United States also recurs in many other countries. Similarly, in many countries, the compensation paid to property owners whose land is condemned is often inadequate, falling well below the true magnitude of their losses. Not surprisingly, political controversy over takings and public revulsion against abuses has arisen in a variety of countries.
Despite abuses, most experts agree that we cannot simply do away with eminent domain entirely. There are cases where it is the only way to build valuable infrastructure and other essential public projects.
The contributors to the volume consider a variety of possible solutions to problems arising from eminent domain abuse. Some argue for tightening “public use” restrictions on takings (known as “public interest” criteria in many countries). Others contend that increasing compensation or strengthening procedural protections for property rights are more promising strategies. Perhaps the best strategy is a multi-pronged one that combines elements of all three. It may also be that there is no one approach that works best for every country.
It is unlikely that the debate over eminent domain will be definitively settled any time soon, in any of the countries where it has arisen. But we hope that our book will help inform that debate by highlighting the ways in which many nations face similar challenges. Over time, we can learn from each other, and find better ways to curtail abusive takings all over the world.
Ilya Somin is a law professor at George Mason University and Editor of Eminent Domain, A Comparative Perspective.