An Albany Law School journal, the Albany Government Law Review, has devoted its current issue (Vol.4, No. 1) to eminent domain. It contains a bunch of articles on that subject, including some by our favorite mavens, including (in the same order as their articles appear) Ilya Somin, Steven Eagle, Michael Rikon, Amy Lavine and Robert Goldstein. Plus others.
Your faithful servant’s contribution is to give the overworked “public use” controversy a rest, and provide an article on compensation, entitled “Fairness and Equity,” or Judicial Bait-and-Switch?: It’s Time to Reform the Law of “Just” Compensation, 4 Alb. Gov’t. L. Rev. 101 (2010). It’s about the ufortunate judicial practice of authoring flowery rhetorical passages about indemnifying condemnees and paying them “full and perfect” compensation that will leave them in the same position monetarily as if their property had not been taken, but before the ink dries on that stirring prose, awarding “just” compensation so ingeniously defined that it falls short of indemnifying the vitims for all demonstrable economic losses inflicted on them by the eminent domain process, and concededly falling short of “fair market value” as determined by the market (as opposed to judicial definition thereof). It’s a good read, if we do say so ourselves, mostly because it begins with Judge Richard Posner’s full confession in writing, to the effect that the judicially touted “just compensation is less than full compensation.” (id. at 101). In our book, Judge Posner is one smart dude, but he falls woefully short in his “explanation” – if that is what it is – why this unfortunate judicial practice prevails.
The rest is commentary.
To gain immediate access to that issue, without awaiting the output of Mr. Gutenberg’s wonderful invention, go to www.albanygovernmentlawreview.org and click on ISSUES on the toolbar. Enjoy!