Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent-Domain Exercises

Levine‐Schnur, Ronit; Parchomovsky, Gideon

doi:10.1086/687248

Cited by 4 publications

(3 citation statements)

References 29 publications

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“…The findings of the current study are consistent with recent empirical studies that call into question the predominant perception that government officials, when exercising their eminent domain power, act as narrow maximizers of self‐interest who are exclusively motivated by budgetary constraints, specifically those created by compensation rules (Chang, 2009; Levine‐Schnur & Parchomovsky, 2016). These studies lend qualified support to the alternative hypothesis that when taking private property, government officials are largely motivated by a variety of budgetary and non‐budgetary considerations, such as actual needs, fairness, and political effects.…”

Section: Discussionsupporting

confidence: 89%

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre‐ and post‐Kelo

Levine‐Schnur

2022

Regulation & Governance

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A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.

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Section: Discussionsupporting

confidence: 89%

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre‐ and post‐Kelo

Levine‐Schnur

2022

Regulation & Governance

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“…Hence, the price mechanism provided by the compensation requirement does not reflect the entire set of relevant costs (and considerations) entailed in taking decisions (Levinson 2000). This claim has been supported by recent empirical studies that show that government officials are less responsive to budgetary maximization considerations, especially compensation costs, than had been assumed by the fiscal illusion hypothesis (Levine-Schnur and Parchomovsky 2016;Chang 2009).…”

Section: Distribution Of the Taking Burdens And Benefits Across Polit...mentioning

confidence: 96%

Political Divide, Weak Property Rights, and Infrastructure Provision: An Empirical Examination of Takings Decisions in Jerusalem

Levine‐Schnur¹

2021

Law Soc. Inq.

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In this article I use a unique hand-coded dataset of all expropriation exercises in Jerusalem over a twenty-five-year period to test the distribution of the expropriation burden across political communities. I identify the ethnoreligious group to which the impacted landowner belongs and the community that would benefit from the decision. I find that Palestinian property constitutes 38 percent of all land taken over the years, while only 10 percent of all land taken has been repurposed for their local community needs. Conversely, Jewish owners have contributed only 4 percent of all land taken while benefiting from 33 percent of the land taken for their community needs. I also find that land not owned by Jews has a higher propensity to be taken for citywide purposes by ten to twenty-three times than Jewish land, depending on the purpose and the type of property rights involved. This sharp gap can be attributed to the political power relations in the city. The case study enables me to test the relationship between weak property rights and infrastructure provision. As property rights are formally recorded and recognized selectively in some but not in all parts of the city, the article provides the first empirical evidence to the effect of weak property rights on the risk of expropriation. I find that the propensity for noncommunity purpose takings of nonformalized land for which Palestinians claim ownership but have no official records to is significantly higher when compared to formalized Palestinian land. This outcome contradicts the conventional wisdom in the literature that weak property rights help explain limited infrastructure development.

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“…18 As an additional example, in the takings compensation context, the major premise (the normative goal) is indisputably giving condemnees fair, full, or adequate compensation, and lawmakers have designed various ways to ensure the realization of this goal, such as requesting the condemners to commission real estate appraisers with a certain designation to assess the value of the expropriated property (Chang 2010; or asking property owners to self-assess their property values ex ante (Levmore 1982;Bell and Parchomovsky 2007;Chang 2012a;Posner and Weyl 2018). Empirical studies in this context often examines whether the legal mechanism delivers the promise of fair, full, or adequate compensation (see also Levine-Schnur and Parchomovsky 2016). Relatedly, takings statutes often include various mechanisms that prevent certain groups from being subject to disproportionately high probability of expropriation (i.e., the normative prior is equality).…”

Section: Consequential Argument: Form and Examplesmentioning

confidence: 99%

Empirical Foundation of Normative Arguments in Legal Reasoning

Chang,

Wang

2024

EJELS

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Empirical legal studies are often challenged by traditional doctrinal legal scholars as irrelevant to normative legal reasoning. This article explores, through the lens of jurisprudence and by drawing on dozens of empirical works, the junction between empirical facts and normative arguments. Both teleological and consequential arguments, in one of their premises, employ “difference-making facts” which identify the causal effects of certain legal measures as reasons for normative claims. Empirical works make causal inferences and their findings thus constitute an essential part of teleological and consequential arguments, which are prevalent in normative legal reasoning. All causal-identifying empirical findings can be framed as the required empirical premise in teleological and consequential arguments. Finally, although some classical canons of legal interpretation, such as textual and systemic arguments, appear not to take the form of teleological or consequential arguments, the use of these specific legal arguments must nonetheless be justified by teleological or consequential arguments at the meta-level. Thus, normative legal reasoning, one way or another, must have empirical foundations.

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Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent-Domain Exercises

Cited by 4 publications

References 29 publications

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre‐ and post‐Kelo

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre‐ and post‐Kelo

Political Divide, Weak Property Rights, and Infrastructure Provision: An Empirical Examination of Takings Decisions in Jerusalem

Empirical Foundation of Normative Arguments in Legal Reasoning

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