Assembly, Public Use, and Reciprocity of Advantage Regulation
- Author(s):
- Eric R. Claeys
- Posted:
- 04-2025
- Legal Studies #:
- LS 25-09
- Availability:
- Full text (most recent) on SSRN
ABSTRACT:
This Article contributes to a symposium hosted at Yale Law School on the twentieth anniversary of Kelo v. City of New London (2005). The Article studies how rights-based property theories approach assembly, the process in which a government condemns property held by some private parties, consolidates that property, and assigns it to another private party to produce new social value. According to Kelo, the Fifth Amendment’s Public Use Clause limits government-backed assembly only barely. Rights-based theories can justify assembly, but they lay down stricter limits on it than Kelo does. In a rights-based legal system, the power to assemble property exercises not the eminent domain power but the police power, and specifically the power to regulate property to secure an average reciprocity of advantage. Two elements determine whether a law genuinely regulates in this manner—necessity, and a genuine reciprocity of advantage—and those elements can be applied to assembly projects.
This Article’s account of assembly avoids green-lighting most proposed assemblies (as Kelo does) without barring them all. Normatively, the account asks fair questions about assembly proposals. How compelling is the public’s case for forcing private citizens to sacrifice their property rights? And if an assembly project is supposed to produce social value, why shouldn’t the proprietors share in the advantage from the promised social gains? Doctrinally, this Article offers a roadmap for overhauling contemporary public use doctrine. The U.S. Supreme Court treated assembly problems as reciprocity of advantage problems in the first assembly cases it considered after the Fourteenth Amendment was ratified—Head v. Amoskeag Manufacturing Co. and Wurts v. Hoagland (both 1885), and Ohio Oil Co. v. Indiana (1900). If Head, Wurts, and Ohio Oil Co. treat assembly problems fairly, then the Court’s later assembly cases—from Clark v. Nash (1906), through Berman v. Parker (1954), to Kelo—should be limited or overruled.