Back in the sixties, everyone quipped that “Negro removal” – not “urban renewal” – was the driving force for metropolitan gentrification. Behind the joke, there was an underlying truth – witnessed in the developing law of eminent domain. Thus, the same United States Supreme Court that had pondered the racial repercussions of the “separate but equal” doctrine in Brown and demanded that classification based on race be scrutinized with particular care in Bolling, upheld the eviction of thousands of African Americans as a proper exercise of eminent domain only six months later in Berman. Bearing in mind that public purposes are the heart of eminent domain, this article focuses on the takings law’s paradoxical treatment of destitute segments of American society, including racial minorities.
The analysis that follows spotlights the “blinding” strategies that powerful partisan players use to keep the political phase in the making of “public goods” under the radar of public consciousness and potential pretext claims. The “blinded rider” dilemma discussed below shifts eminent domain’s focus from “holdouts” to the political process that controls the definition, means and limits of public purposes. It therefore exposes the congested nature of all public goods, specifically the existence of a political platform abundant with competing public goods bearing different prospects but also distinct distribution disparities.
It is the author’s hope that, by bringing the “blinded rider” phenomenon to the fore, this article will enable courts to capture fully the risks and benefits associated with the use of eminent domain, reduce the distribution disparities imposed by eminent domain, and correspondingly improve the adequacy of the “just compensation” condition. Equipped with this broader understanding of public goods’ theory, judicial advanced supervision would direct the use of eminent domain power for the benefit of all segments of society, including those historically most disadvantaged.
The Wretched of Eminent Domain: Holdouts, Free-Riding and the Overshadowed Problem of Blinded-Riders,
18 Berkeley J. Afr.-Am. L. & Pol'y
Available at: http://scholarship.law.berkeley.edu/bjalp/vol18/iss1/3