Public Use in the Dirigiste Tradition: Private and Public Benefit in an Era of Agglomeration


This article analyzes the development of eminent domain law, focusing on the U.S. Supreme Court and the New York Court of Appeals’ approach to the requirement that takings be for “public use.” It asserts that the Supreme Court’s public use doctrine is conceptually incomplete. In applying that doctrine and its own precedents, the Court of Appeals acts in the State’s tradition of dirigisme, and subordinates constitutional protections for private property to centralized development. Its recent Goldstein and Kaur opinions, uncritically supporting development for economic agglomeration, are the culmination of this approach.

The article also discusses implications for public policy arising from condemnation for transfer for private redevelopment, as hastened by government efforts to stimulate agglomeration. These include a lack of transparency, secondary rent seeking, possibilities of corruption resulting from crony capitalism, and the inefficient use of public and private recourses.