The Misplaced Flight to Substance

Courts and commentators have struggled for years to come up with a substantive test for what kinds of condemnations are for a public use. Does public use mean government ownership and control of property after it is taken? This would preclude delegation of eminent domain to common carriers and utilities. Does public use mean public access to the property after it is taken? This would preclude using eminent domain to acquire facilities off-limits to the public, like prisons. Faced with these problems of under-inclusion, courts have gravitated to the idea that public use means public purpose. The U.S. Supreme Court adopted a broad public purpose definition as a matter of federal constitutional law in Berman and Midkiff See Bennan v. Parker, 348 U.S. 26 (1954); Hawaii Rous. Auth. v. Midkiff, 467 U.S. 229 (1984). Nearly all state courts have followed suit. TI1e result is that virtually any project that has a plausible public interest justification satisfies the public use requirement, as currently defined