Jessica Owley (University of Miami – School of Law; University of Groningen – Faculty of Law) has posted Radically Reimagining Expropriation: A Nature-Centered Approach to Just Compensation in the United States on SSRN. Here is the abstract:
American property law places human title holders at its center, treating nature as the backdrop to human ownership rather than an interest deserving legal recognition. This chapter brings that critique to the law of eminent domain—and specifically to its most neglected element, the just compensation requirement. Courts treat just compensation as a mechanical exercise: calculate fair market value, pay the title holder, and proceed. That complacency obscures deep normative questions. Reconsidering why compensation exists, who should receive it, and what form it should take reveals that fair market value serves none of compensation’s underlying purposes—deterrence, fairness, and legitimacy—when ecological values are at stake. The chapter’s central move is to reinterpret those purposes. Taking the purposes seriously extends compensation beyond title holders to neighbors, communities, future generations, and nature itself, and beyond cash to remedies such as habitat restoration. Most radically, I advocate for recasting just compensation as a threshold question: where a loss cannot be compensated because an old-growth forest, wetland, or carbon sink cannot be replaced, that impossibility should bar the taking rather than trigger an inadequate payment. Both grounding conceptions of eminent domain—inherent sovereign power and popular consent—support this move. As climate change and biodiversity loss raise the stakes of every condemnation, taking nature seriously as a subject of just compensation—rather than an externality to it—reframes a doctrine long assumed settled and opens expropriation law to ecological realities it can no longer afford to ignore.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum