Why the Promise of “Just Compensation” in Eminent Domain Isn’t True

“[D]efined [as fair market value], just compensation is less than full compensation… Full compensation will often exceed fair market value, if only because of moving expenses. But while acknowledging that fair market value is not always full compensation, the Supreme Court… blunted the point by saying that the shortfall ‘is properly treated as part of the burden of common citizenship’ – which again is a conclusion rather than a reason – but in a more practical vein remarked the difficulty of determining nonmarket values by the methods of litigation. 

The fact [is] that ‘just compensation’ tends systematically to undercompensate the owners of property taken by eminent domain…” United States v. Norwood, 602 F.3d 830, 834 (7th Cir. 2010) (Posner, J.), citations omitted

No comment appears necessary, except to note that the Supreme Court’s justification relying on the supposed difficulty of ascertaining nonmarket values is nonsensical on two counts. First, courts often proclaim demonstrable, economic losses, ascertainable by conventional valuation techniques, to be “noncompensable” in eminent domain, whereas in other litigation it is black-letter law that the difficulty in ascertaining the amount of damages does not justify their denial. Second, talking about “common burdens of citizenship,” even as the courts impose uncommon, uncompensated losses on condemnees but not on other litigants nor on other members of the public in the area who benefit from the public projects, is absurd.

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