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Courts, legislatures, and evolving property rules: Lessons from eminent domain

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  • Fleck, Robert K.
  • Hanssen, F. Andrew

Abstract

This paper examines judicial and legislative modifications to a specific property rule, the benefit offset, which was widely employed by railroad companies during the 19th century as a way to reduce required compensation for land taken through eminent domain. At the beginning of the railroad boom, all states allowed the benefit offset; by the end of the boom, most states had banned it, some via court decisions, others via legislation. Consistent with a simple model in which a court and a legislature act as (imperfect) agents of the public: 1) challenges to the benefit offset generally began with litigation; 2) all states that litigated the offset eventually restricted it, but not always through litigation; 3) where courts chose to allow the offset, legislation restricted it, often with substantial lags; 4) those lags tended to be longer (i.e., more time passed between litigation and subsequent legislation) when the litigation efforts took place early in the track building process (at which time the offset was more likely to be socially valuable); 5) states that never banned the benefit offset were those where landowners were unlikely to have ever been harmed by the practice (principally western states with vast expanses of public and private land). The model and historical evidence illustrate how a system that grants both the court and the legislature the power to alter property rules can establish a beneficial redundancy that increases the value of modifiable property rules.

Suggested Citation

  • Fleck, Robert K. & Hanssen, F. Andrew, 2024. "Courts, legislatures, and evolving property rules: Lessons from eminent domain," Explorations in Economic History, Elsevier, vol. 93(C).
  • Handle: RePEc:eee:exehis:v:93:y:2024:i:c:s0014498324000111
    DOI: 10.1016/j.eeh.2024.101581
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    as
    1. Daniel Berkowitz, 2005. "American Civil Law Origins: Implications for State Constitutions," American Law and Economics Review, American Law and Economics Association, vol. 7(1), pages 62-84.
    2. Edward L. Glaeser & Andrei Shleifer, 2003. "The Rise of the Regulatory State," Journal of Economic Literature, American Economic Association, vol. 41(2), pages 401-425, June.
    3. Scheiber, Harry N., 1973. "Property Law, Expropriation, and Resource Allocation by Government: the United States, 1789–1910," The Journal of Economic History, Cambridge University Press, vol. 33(1), pages 232-251, March.
    4. Grandy, Christopher, 1989. "Can Government Be Trusted to Keep Its Part of a Social Contract?: New Jersey and the Railroads, 1825-1888," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 5(2), pages 249-269, Fall.
    5. R. H. Coase, 2013. "The Problem of Social Cost," Journal of Law and Economics, University of Chicago Press, vol. 56(4), pages 837-877.
    6. Beck, Thorsten & Demirguc-Kunt, Asli & Levine, Ross, 2003. "Law and finance: why does legal origin matter?," Journal of Comparative Economics, Elsevier, vol. 31(4), pages 653-675, December.
    7. Fleck, Robert K, 1999. "The Value of the Vote: A Model and Test of the Effects of Turnout on Distributive Policy," Economic Inquiry, Western Economic Association International, vol. 37(4), pages 609-623, October.
    8. Miceli, Thomas J. & Segerson, Kathleen, 2007. "The Economics of Eminent Domain: Private Property, Public Use, and Just Compensation," Foundations and Trends(R) in Microeconomics, now publishers, vol. 3(4), pages 275-329, July.
    9. Robert K. Fleck & F. Andrew Hanssen, 2013. "Judges: why do they matter?," Chapters, in: William F. Shughart II & Laura Razzolini & Michael Reksulak (ed.), The Elgar Companion to Public Choice, Second Edition, chapter 14, pages 233-248, Edward Elgar Publishing.
    10. Fleck, Robert K. & Hanssen, F. Andrew, 2010. "Repeated adjustment of delegated powers and the history of eminent domain," International Review of Law and Economics, Elsevier, vol. 30(2), pages 99-112, June.
    11. George L. Priest & Benjamin Klein, 1984. "The Selection of Disputes for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 13(1), pages 1-56, January.
    12. Atack, Jeremy & Brueckner, Jan K., 1982. "Steel rails and American railroads, 1867-1880," Explorations in Economic History, Elsevier, vol. 19(4), pages 339-359, October.
    13. F. Andrew Hanssen, 2004. "Is There a Politically Optimal Level of Judicial Independence?," American Economic Review, American Economic Association, vol. 94(3), pages 712-729, June.
    14. Landes, William M & Posner, Richard A, 1975. "The Independent Judiciary in an Interest-Group Perspective," Journal of Law and Economics, University of Chicago Press, vol. 18(3), pages 875-901, December.
    15. Carl Kitchens, 2014. "The use of eminent domain in land assembly: The case of the Tennessee Valley Authority," Public Choice, Springer, vol. 160(3), pages 455-466, September.
    16. F. Andrew Hanssen, 2004. "Learning about Judicial Independence: Institutional Change in the State Courts," The Journal of Legal Studies, University of Chicago Press, vol. 33(2), pages 431-473, June.
    17. Douglas W. Allen, 2019. "Establishing Economic Property Rights by Giving Away an Empire," Journal of Law and Economics, University of Chicago Press, vol. 62(2), pages 251-280.
    18. Hart, John F, 1998. "Property Rights, Costs, and Welfare: Delaware Water Mill Legislation, 1719-1859," The Journal of Legal Studies, University of Chicago Press, vol. 27(2), pages 455-471, June.
    19. Rasmusen, Eric, 1994. "Judicial Legitimacy as a Repeated Game," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 10(1), pages 63-83, April.
    20. Munch, Patricia, 1976. "An Economic Analysis of Eminent Domain," Journal of Political Economy, University of Chicago Press, vol. 84(3), pages 473-497, June.
    21. Thomas W. Gilligan & William J. Marshall & Barry R. Weingast, 1990. "The Economic Incidence of the Interstate Commerce Act of 1887: A Theoretical and Empirical Analysis of the Short-Haul Pricing Constraint," RAND Journal of Economics, The RAND Corporation, vol. 21(2), pages 189-210, Summer.
    22. Eric Maskin & Jean Tirole, 2004. "The Politician and the Judge: Accountability in Government," American Economic Review, American Economic Association, vol. 94(4), pages 1034-1054, September.
    23. Atack, Jeremy, 2013. "On the Use of Geographic Information Systems in Economic History: The American Transportation Revolution Revisited," The Journal of Economic History, Cambridge University Press, vol. 73(2), pages 313-338, June.
    24. Edward Glaeser & Simon Johnson & Andrei Shleifer, 2001. "Coase Versus the Coasians," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 116(3), pages 853-899.
    25. Hermalin, Benjamin E, 1995. "An Economic Analysis of Takings," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 11(1), pages 64-86, April.
    26. Duran, Xavier, 2013. "The First U.S. Transcontinental Railroad: Expected Profits and Government Intervention," The Journal of Economic History, Cambridge University Press, vol. 73(1), pages 177-200, March.
    27. Lamoreaux, Naomi R., 2011. "The Mystery of Property Rights: A U.S. Perspective," The Journal of Economic History, Cambridge University Press, vol. 71(2), pages 275-306, June.
    28. Engerman, Stanley L., 1972. "Some Economic Issues Relating to Railroad Subsidies and the Evaluation of Land Grants," The Journal of Economic History, Cambridge University Press, vol. 32(2), pages 443-463, June.
    29. Anderson, Terry L & Lueck, Dean, 1992. "Land Tenure and Agricultural Productivity on Indian Reservations," Journal of Law and Economics, University of Chicago Press, vol. 35(2), pages 427-454, October.
    30. Daniel Berkowitz & Karen Clay, 2006. "The Effect of Judicial Independence on Courts: Evidence from the American States," The Journal of Legal Studies, University of Chicago Press, vol. 35(2), pages 399-440, June.
    31. Fleck, Robert K, 2001. "Inter-party Competition, Intra-party Competition, and Distributive Policy: A Model and Test Using New Deal Data," Public Choice, Springer, vol. 108(1-2), pages 77-100, July.
    32. Heckelman, Jac C. & Wallis, John Joseph, 1997. "Railroads and Property Taxes," Explorations in Economic History, Elsevier, vol. 34(1), pages 77-99, January.
    33. Gilligan, Thomas W & Marshall, William J & Weingast, Barry R, 1989. "Regulation and the Theory of Legislative Choice: The Interstate Commerce Act of 1887," Journal of Law and Economics, University of Chicago Press, vol. 32(1), pages 35-61, April.
    34. Leonard, Bryan & Parker, Dominic P. & Anderson, Terry L., 2020. "Land quality, land rights, and indigenous poverty," Journal of Development Economics, Elsevier, vol. 143(C).
    35. Segal, Jeffrey A., 1997. "Separation-of-Powers Games in the Positive Theory of Congress and Courts," American Political Science Review, Cambridge University Press, vol. 91(1), pages 28-44, March.
    36. Lopez Edward J. & Jewell R. Todd & Campbell Noel D., 2009. "Pass a Law, Any Law, Fast! State Legislative Responses to the Kelo Backlash," Review of Law & Economics, De Gruyter, vol. 5(1), pages 101-135, April.
    37. William J. Collins & Katharine L. Shester, 2013. "Slum Clearance and Urban Renewal in the United States," American Economic Journal: Applied Economics, American Economic Association, vol. 5(1), pages 239-273, January.
    38. Steven Shavell, 2010. "Eminent Domain versus Government Purchase of Land Given Imperfect Information about Owners' Valuations," Journal of Law and Economics, University of Chicago Press, vol. 53(1), pages 1-27, February.
    39. Thomas Miceli & Kathleen Segerson, 2007. "Private Property, Public Use, and Just Compensation: The Economics of Eminent Domain," Working papers 2007-12, University of Connecticut, Department of Economics.
    40. Ferejohn, John A. & Weingast, Barry R., 1992. "A positive theory of statutory interpretation," International Review of Law and Economics, Elsevier, vol. 12(2), pages 263-279, June.
    41. Robert K. Fleck & F. Andrew Hanssen, 2013. "Judicial Review as a Constraint on Tyranny of the Majority," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 29(2), pages 303-331, April.
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    More about this item

    Keywords

    Eminent domain; Property rules; Courts; Legislatures; Railroads;
    All these keywords.

    JEL classification:

    • D78 - Microeconomics - - Analysis of Collective Decision-Making - - - Positive Analysis of Policy Formulation and Implementation
    • H1 - Public Economics - - Structure and Scope of Government
    • K11 - Law and Economics - - Basic Areas of Law - - - Property Law
    • N4 - Economic History - - Government, War, Law, International Relations, and Regulation
    • P16 - Political Economy and Comparative Economic Systems - - Capitalist Economies - - - Capitalist Institutions; Welfare State

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