Eminent Domain in China — and in the Good Ol’ U.S. of A.

The East Asia Forum of July, 29, 2011, contains an interesting article on eminent domain in China, by Chun Peng (Oxford University), entitled Eminent Domain in China: Rule of Law in the Making — click here

This article observes that though a legal system of land expropriation is evolving in China, this emerging system is subject to criticism because of its widespread displacement of populations, and of its consumption of arable land.  Also, “anxiety is rooted in the question of whether the increasing mass protests against compulsory land takings have opened Pandora’s box for the legitimacy and stabiliy of the current regime.”

We find of particular interest the following passage, noting that in Chinese law of eminent domain,

“[T]he ‘public interest’ prerequisite is vaguely defined, the due process of acquisition has not been erected and compensation standards remain unfairly low.”

This is remarkable because, these same factors are also present and provide a valid basis for criticism of American eminent domain law. You doubt it? Then consider this. In America, the “public use” constitutional limitation has become a joke, particularly after the Kelo case. Except under state law of Arizona, Illinois, Michigan, Ohio, Oklahoma and South Carolina, all of which have disapproved of the use of eminent domain for “economic  redevelopmemnt,” the constitutional “public use” limitation has been diluted and in some cases (notably in New York)  de facto read out of the constitution.

Next, due process is not required in takings of property under  American law. Only when the government files a condemnation action, it must provide due process, but it isn’t required to file such an action. Two U.S. Courts of Appeals (the 5th and 9th) have held that the government may simply seize private property and say to the displaced owner “sue me.” The U.S. Supreme Court made it clear in the Dow case that no process and no court order is required before the government may just seize private property. Indeed, Congress may engage in legislative expropriation whereby it passes a bill declaring that as of a specified date, your land now belongs to Uncle Sam. Period. If you then want to get paid, you have to take the initiative, hire a lawyer and an appraiser, file an inverse condemnation action in  the U.S. Court of Federal Claims in Washington, and hope to receive your “just compensation” years later. That is how the California Redwood National Park and the Manassas Battlefield Memorial in Virginia were created.

Ostensibly, the Uniform Relocation Assistance Act forbids this and requires the government to file an eminent domain action when it wants to acquire private property. But the Act is a “paper tiger” because it is not enforceable  by its express terms — property owners have no right to sue to enforce its provisions when they are violated by the government.

And as for compensation. . . For decades, the law journals have been full or articles criticizing the prevailing undercompensation of condemnees whose property is taken by eminent domain. For our most recent effort on that score, see Gideon Kanner, “Fairness and Equity,” or Judicial Bait-and-Switch? It’s Time to Reform the Law of “Just” Compensation, 4 Albany Jour. Gov’t. Law 38 (2011).

In conclusion, we hesitate to say “Welcome to Red China” because here such abuses are still an exception whereas over there they are the rule. But even so, we find a parallelity, however small, between the treatment these two countries mete out to property owners to be disturbing. Whatever else you may want to say, our law that ostensibly provides extensive protection to private property rights, should be sharply different — and much better — than that of the authoritarian regime of Red China.

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