PROPERTY (Section 1)
Spring Semester 2013
Discussion Questions for pages 30-55

1. Why give the government eminent domain power? Why not allow the government to acquire any land it wants to use for public purposes in an arms-length sale?

2. In sorting out what the "public use" limit on the eminent domain power means, consider the following questions:

a. Suppose that the Mayor of Columbia wants to buy Dean Bailey's home, but Dean Bailey won't sell. The Mayor then gets the City Council to vote to condemn Dean Bailey's home by eminent domain and to designate it as the official residence of the Mayor of Columbia. Is this a public use? Why or why not?

b. Why was the redress of blight in Berman v. Parker a public use? Why was the redress of an oligopolistic land market in Hawaii Housing Authority v. Midkiff a public use?

c. Does the result in Kelo logically and naturally follow from the results in Berman and Midkiff, or is Kelo a different case? Why or why not?

d. Should the United States Supreme Court be the final arbiter of whether a city's redevelopment plan serves a "public purpose," or is that judgment better left to the city's democratic process?

3. Questions to consider about United States Steel:

a. The steelworkers make an argument that based on their longstanding relationship with the company and the community, the steelworkers have acquired a "property" right in the plant that should entitle them to a proportion of the ownership of the plant's assets. At first blush, this sounds analogous to a court reallocating property rights as between ex-spouses in the context of a divorce proceeding (based upon issues arising out of their prior relationship). If courts do this in the context of marital dissolution all the time, why isn't the court willing to make that leap here? [Hint: What would be the potential consequences of such a ruling?]

b. The steelworkers also made an estoppel argument (that the company should not be able to close the plant as long as it was "profitable," based upon the company's promises and the workers' reliance). If the court had granted the steelworkers' estoppel argument, would the steelworkers have had a property right in the plant? Why or why not?

c. Do you think the court should have ruled in the steelworkers' favor on the estoppel argument?