Fraley on Takings in the Territories

Jill M. Fraley, Washington and Lee University School of Law, has published History of U.S. Territorial Takings in the Penn State Law Review (2022):

John Marshall Harlan (LC)
Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government takings that demonstrate bias and disproportionately impact minority communities, and delayed and inadequate compensation.

Each of these patterns provides insight into how eminent domain law has failed to adequately protect private property. The result is a picture of how eminent domain law is doctrinally destined to fail at protecting property, particularly in communities with limited political power.

This Article proposes three specific and complementary routes to achieving more just property protections. Specifically, the Supreme Court should: (1) overturn Cherokee Nation v. Southern Kansas Railroad Co. [1890], a decision which justifies delayed compensation and is inconsistent with other doctrines for just compensation; (2) recognize the dangers of unfettered legislative discretion and, consistent with equal protection law, utilize a more intensive review in the context of takings in Black and indigenous communities; and (3), if an appropriate case were to present itself, articulate a standard for equal protection violations in the context of eminent domain.
--Dan Ernst



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