Eminent Domain, Inc.

This Essay proposes a novel solution for “squaring the eminent domain circle” when large-scale, for-profit development projects require the assembly of land from numerous private property owners. Such “anticommons” situations may justify government intervention through eminent domain, yet they often leave landowners undercompensated. This may skew the incentives for initiating land development projects and lead to considerable injustice. Although the taking component of eminent domain may need to remain an involuntary nonmarket transaction, we propose a market-based mechanism for the compensation component in the form of a Special-Purpose Development Corporation (SPDC). An SPDC would acquire unified ownership of the land and the development project, and would offer condemnees a choice between receiving pre-project “fair market value” compensation or pro rata shares in the SPDC. This would make it more likely that compensation is closely linked to the true economic value of the land and, consequently, that land assembly projects are both more just and genuinely social welfare maximizing.