How to Reform Eminent Domain in Arkansas

By Ashley Wofford

It’s been thirteen years since the Supreme Court handed down its controversial ruling in Kelo v. City of New London (2005) that unleashed a wave of eminent domain reform in state legislatures across the country. Ilya Somin, Professor of Law at George Mason University teamed up with ACRE to look back at efforts made by the Arkansas legislature to protect private property, and to list the areas in current Arkansas eminent domain law that are still Ripe for Reform.

Eminent domain, a term that refers the power of government officials to take private property for public use, is clearly written into the Fifth Amendment of the constitution. However, the amendment also requires a just compensation for the taking.  This language is echoed in Article 2 Section 22 of the Arkansas Constitution: “the right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”

While the language is simple, it’s applications are not. For example, what exactly constitutes public use? Roads and post offices are generally accepted as public use government projects but in the Kelo decision, As Somin points out in his brief this is an abuse of the eminent domain power: “economic development and blight condemnations are not only constitutionally dubious, but also often destroy more development than they create and  inflict great harm on the poor, racial minorities, and the politically weak.”

Throughout the brief, Somin explores many aspects of Arkansas’s eminent domain laws. First he addresses the standard of just compensation in Arkansas as “fair market value.” Somin argues that Arkansas law may fail to take into account an owner’s “subjective value” of the property. Second, he addresses the eminent domain power conferred upon private pipeline companies that transport oil and natural gas through the state. There is a lack of clarity when it comes to pipelines that do not serve the general public but rather “selected private customers of the firm.” Finally, he discusses blight condemnations. In the brief, Somin suggests that Arkansas’s definition of blight may be so broad that “almost any feature that impedes development in some way can be characterized as an ‘economic or social liability’ or as detrimental to public welfare” and could be considered blighted. These three sections will be examined in detail in upcoming posts.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. He is the author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, co-editor of Eminent Domain: A Comparative Perspective as well writing and coauthoring many other works. Somin’s work has appeared in numerous scholarly journals, including the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, Critical Review, and others.

In 2009, he testified on property rights issues at the United States Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor. He
writes regularly for the popular Volokh Conspiracy law and politics blog, affiliated with the Washington Post. From 2006 to 2013, he served as Co-Editor of the Supreme Court Economic Review, one of the country’s top rated law and economics journals.