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Remodeling Just Compensation: Applying Restorative Justice to Takings Law Doctrine

Published online by Cambridge University Press:  01 August 2017

Shai Stern
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Abstract

Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest for justice in expropriations reveals a muddled dialogue in which divergent justifications pull one towards different normative and positive conclusions. Currently, expropriation doctrine purports to incorporate a sense of fair dealings with those who become victim to legal devices such as eminent domain. However, based on current case law, the reality of expropriation laws fails to reflect any true practice of justice.

This Article suggests a conceptual change in expropriation laws’ remedial scheme by embracing restorative justice as the underlying concept of what constitutes justice in expropriation law. By establishing expropriation law on a restorative conception of justice, a coherent framework will emerge that is circumstances attentive and will provide practical instruments to overcome some of current law’s most significant challenges. This opens a new venue for both expropriation law and restorative justice. Equally important, the Article provides a novel opportunity to consider restorative justice beyond the borders of criminal law.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 30 , Issue 2 , August 2017 , pp. 413 - 441
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2017 

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References

1. Kelo v City of New London, 545 US 469 (2005).

2. See, e.g., in Nathaniel Persily,Jack Citrin & Patrick JEgan, 2008 Citrin, Jack & Egan, Patrick J, eds, Public Opinion and Constitutional Controversy (Oxford University Press, 2008) 286 at 288–90Google Scholar (discussing the social impact and public opinion surrounding the Kelo decision); see also Abraham Bell & Gideon Parchomovsky, “The Uselessness of Public Use” (2006) 106 Colum L Rev 1412 (discussing the reasons why the government even provides compensation at all in eminent domain cases); Timothy Sandefur, “The “Backlash” So Far: Will Americans Get Meaningful Eminent Domain Reform?” (2006) 2006 Mich St L Rev 709 (discussing the mixed results following the Kelo decision); but see Timothy J Dowling, “How to Think After the Shouting Stops” (2006) 38 The Urban Lawyer 191 (discussing the misinformation rampant in the social outcry following the Kelo decision); “The Limits of Property Rights,” Editorial, The New York Times (24 June 2005) online: http://www.nytimes.com/2005/06/24/opinion/the-limits-of-property-rights.html (describing how the fears regarding takings law following the Kelo decision were exaggerated); “Eminent Latitude,” Editorial, The Washington Post (24 June 2005) online: http://www.washingtonpost.com/wp-dyn/content/article/2005/06/23/AR2005062301698.html (discussing that though the decision received harsh criticism, it was nonetheless correct).

3. See, e.g., Edward J Lopez, R Todd Jewell & Noel D Campbell, “Pass a Law, Any Law, Fast! State Legislative Responses to the Kelo Backlash” (2009) 5 Rev Law & Economics 101 (discussing the potential alleviation of bias against the poor).

4. Benedict, Jeff, Little Pink House: A True Story of Defiance and Courage (Grand Central, 2009).Google Scholar

5. Ibid at 380.

6. Ibid.

7. Ibid.

8. Ibid.

9. Ibid.

10. In the United States, the Fifth Amendment orders that, “private property [shall not] be taken for public use, without just compensation.” US Const amend V. In Canada, “compensation is to be paid by the Crown to each person who, immediately before the registration of a notice of confirmation, was the owner or holder of an estate, interest or right in the land to which the notice relates, to the extent of their expropriated interest or right, the amount of which compensation is equal to the aggregate of (a) the value of the expropriated interest or right at the time of its taking, and (b) the amount of any decrease in value of the remaining property of the owner or holder.” Expropriation Act, R SC 1985, c. E-21 s 25. In Germany, the law “protects the concrete existence of assets against unjustified encroachments by public authority.” Art 14 GG. For additional Western jurisdictions’ expropriation regime, including the UK, Australia, France, Greece, the Netherlands, Finland, Israel and Sweden, see Rachelle Alterman, Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights (ABA Press, 2010).

11. See, e.g., William Michael Treanor, “The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment” (1985) 94:3 Yale LJ 694 (describing the historical intent and development of property rights under the Fifth Amendment).

12. While different jurisdictions provide factors that should be taken into consideration in compensation determination (such as social obligation in German Basic Law or, “any element of special economic advantage to [owners] arising out of or incidental to their occupation of the land” in the Canadian Expropriation Act) most of them do not specify a conception of justice that underlie the entire compensation regime. Art 14 GG; Expropriation Act, RSC 1985, c E-21 s 25.

13. See, e.g., United States v 564.54 Acres of Land, 441 US 506, 511 (1979) (describing the court’s aim to establish a corrective justice paradigm to compensation and explaining why efficiency considerations affect the establishment of the fair market value standard out of reasons of the quest to seek an objective and workable measurement).

14. See, e.g., Declan Roche, “Dimensions of Restorative Justice” (2006) 62 Journal of Social Issues 217 (discussing the existence of restorative processes and values in different regulatory fields).

15. See supra notes 10, 12 and accompanying text.

16. The Fifth Amendment of the U.S. Constitution, for example, states that “nor shall private property be taken for public use, without just compensation.” US Const amend V.

17. See supra notes 10, 12 and accompanying text.

18. See Katrina Miriam Wyman, “The Measure of Just Compensation” (2007) 41 UC Davis L Rev 239 (critiquing the assumption that takings compensation should ideally leave takes objectively indifferent to the takings).

19. Ibid.

20. Ibid.

21. United States v New River Collieries Co, 262 US 341, 343, 345 (1923) (“The owner was entitled to what it lost by the taking.”); see also Seaboard Air Line Ry Co v United States, 261 US 299, 304 (1923) (holding that the property owner should not suffer a loss and is entitled to just compensation).

22. 364 US 40, 49 (1960).

23. Wyman, supra note 18.

24. Shai Stern, “Just Remedies” (2015) 68 Rutgers L Rev 719.

25. Ibid.

26. See, e.g., Frank I Michelman, “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law” (1967) 80 Harv L Rev 1165 (concluding that the current distinction between compensable and non-compensable harms differs from considerations of utility and fairness); Richard A Epstein, Takings: Private Property and the Power of Eminent Domain (1985) (discussing the constitutionality of the New Deal and its effect on takings).

27. Louis Kaplow, “An Economic Analysis of Legal Transitions” (1986) 99:3 Harv L Rev 509.

28. William A Fischel & Perry Shapiro, “Takings, Insurance, and Michelman: Comments on Economic Interpretations of ‘Just Compensation’ Law” (1988) 17 J Legal Stud 269; Posner, Richard A, Economic Analysis of Law, 4th ed (Chicago: Little Brown, 1992)Google Scholar; Abraham Bell & Gideon Parchomovsky, “Givings” (2001) 111 Yale LJ 547.

29. Michelman, supra note 26 at 1207; Louis De Alessi, “Implications of Property Rights for Government Investment Choices” (1969) 59 American Economic Rev 13.

30. Michelman, supra note 26 at 1207-37.

31. Hanoch Dagan, “The Distributive Foundation of Corrective Justice” (1999) 98 Mich L Rev 138 at 150-51.

32. Armstrong, supra note 22 at 49.

33. Abraham Bell & Gideon Parchomovsky, “Takings Reassessed” (2001) 87 Va L Rev 277 at 292-93.

34. Michelman, supra note 26 at 1218-25.

35. Ibid; see also “Givings”, supra note 28 at 292-94.

36. See, e.g., United States v 50 Acres of Land, 469 US 24 (1984) (holding that the Fifth Amendment does not require the U.S. to pay compensation measured by the cost of a substitute facility when the market value of the condemned property is easily identifiable); Olson v United States, 292 US 246 (1934) (holding that there was no legal or practicable possibility that any party other than the expropriating authority could acquire easements to privately held lands).

37. United States v 564.54 Acres of Land, 441 US 506, 511 (1979) (citing United States v Miller, 317 US 369, 374 (1943); United States v Cors, 337 US 325, 332 (1949)); see also Melinda Haag, “Something for Nothing: Just Compensation after United States v. 50 Acres of Land” (1986) 13 Ecology LQ 67 (examining the case history behind 50 Acres of Land and the analysis that lead to its holding).

38. 564.54 Acres of Land, 441 US 506, 511 (1979).

39. 564.54 Acres of Land, 441 US at 511 (citing Miller, 317 US 369, 374 (1943); United States v Cors, 337 US 325, 332 (1949)).

40. See, e.g., WE Shipley, “Annotation, Measure of Damages for Conversion or Loss of, or Damage to, Personal Property Having no Market Value” (1950) 12 ALR 902, § 1(a), § 3(a)-(b) (discussing the general principle that the injured party should be compensated based on market value).

41. Ibid.

42. Restatement (Second) of Torts § 911 cmt E (1977) (“If the subject matter cannot be replaced, however, as in the case of a destroyed or lost family portrait, the owner will be compensated for its special value to him, as evidenced by the original cost, and the quality and condition at the time of the loss. Likewise, an author who with great labor has compiled a manuscript, useful but with no exchange value, is entitled, in case of its destruction, to the value of the time spent in producing it or necessary to spend to reproduce it. In these cases, however, damages cannot be based on sentimental value.”).

43. Ernest J Weinrib, “Corrective Justice in a Nutshell” (2002) 22 UTLJ 349 at 350.

44. Ernest J Weinrib, “Corrective Justice” (1992) 77 Iowa L Rev 403 at 410.

45. For example, investigation costs.

46. See, e.g., Finnis, John, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 1980) at 270-71Google Scholar (providing eight factors that a legal system should preserve to maintain the rule of law); Rawls, John, A Theory of Justice (Harvard University Press, 1971) at 235–43Google Scholar (discussing the rule of law and its connection to equality and individual autonomy); Waldron, Jeremy, “The Rule of Law and the Importance of Procedure” in Fleming, James E, ed, Getting to the Rule of Law (New York University Press, 2011) 3 at 14–16 Google Scholar (discussing the importance of procedure, particularly in adjudicative settings, for administering the rule of law); Richard A Epstein, “Beyond the Rule of Law: Civic Virtue and Constitutional Structure” (1987) 56 Geo Wash L Rev 149 at 149-52 (“There is no question that the rule of law is a necessary condition for a sane and just society … [I]t is a very different question to ask whether it is sufficient to achieve that result.”); see Lee Anne Fennell & Eduardo M Peñalver, “Exactions Creep” (2013) 2013 Sup Ct Rev 287 (discussing the difficulty the Court faces when trying to construct a logically coherent administrative strategy in the Takings Clause).

47. See Fuller, Lon L, The Morality of Law, revised ed (Yale University Press, 1969) at 39–43 Google Scholar (presenting a list of principles generated to capture formal requirements of the rule of law). According to Fuller, the first principle that may cause the state to deviate from acting in accordance to the rule of law is its “failure to achieve rules at all, so that every issue must be decided on an ad hoc basis.” Ibid at 39. In other words, lack of generality causes governments to fail to act within the rule of law.

48. See Extractions Creep, supra note 46 at 312-13 (discussing the deficiencies of ad hoc actions).

49. 564.54 Acres of Land, 441 US at 441 (citing Olson v United States, 292 US 246 (1934)) (“In giving content to the just compensation requirement of the Fifth Amendment, this Court has sought to put the owner of condemned property ‘in as good a position pecuniarily as if his property had not been taken.’ [… However,] this principle of indemnity has not been given its full and literal force. Because of serious practical difficulties in assessing the worth an individual places on particular property, the Court has resorted to the concept of fair market value … even though this measure does not encompass all values an owner may derive from his property.”).

50. See, e.g., Gregory S Alexander, “The Social-Obligation Norm in American Property Law” (2009) 94 Cornell L Rev 745 at 776-77 (providing an alternative to law-and-economic theory in property law); Robert C Ellickson, “Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls” (1973) 40 U Chi L Rev 681 at 699-700 (discussing the thesis that conflicts between neighboring landowners are better resolved by less centralized systems); Lee Anne Fennell, “Taking Eminent Domain Apart” (2004) 2004 Mich St L Rev 957 at 963-64; James E Krier & Christopher Serkin, “Public Ruses” (2004) 2004 Mich St L Rev 859 at 866 (“[F]air market value results in systematic under-compensation from the property owner’s perspective.”); Thomas W Merrill, “The Economics of Public Use” (1986) 72 Cornell L Rev 61 at 82-85 (discussing the themes of modern eminent domain case history); Joseph William Singer, “The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations” (2006) 30 Harv Envmtl L Rev 309 at 315-16 (examining three models of property regarding the takings doctrine); Shai Stern, “Takings, Community, and Value: Reforming Takings Law to Fairly Compensate Common Interest Communities” (2014) 23:1 JL & Pol’y 141 at 191-93 (arguing that those who live in highly cooperative common interest communities are entitled to additional compensation when their property is taken under eminent domain); Laura S Underkuffler, “The Politics of Property and Need” (2010) 20 Cornell JL & Pub Pol’y 363 at 374-76 (discussing the additional factor that justifies property lawbreaking in eminent domain cases).

51. See, e.g., Kathleen M Sullivan, “Foreword: The Justices of Rules and Standards” (1992) 106:1 Harv L Rev 22 at 62 (“[T]he counterargument to rules-as-fairness is that bright-line rules are arbitrary at the border. They force the decision maker to treat differently cases that are actually substantively alike in terms of the underlying principle or policy, and to treat similarly cases that are different.”).

52. See, e.g., Honach Dagan, “Doctrinal Categories, Legal Realism, and the Rule of Law” (2015) 163 U Pa L Rev 1889 at 1890 (“This is why Realists find the law’s use of categories, concepts, and rules not only unavoidable but also desirable, and, thus, why they reject nominalism. For Realists, doctrine is and should be part of the law. But because doctrine qua doctrine is indeterminate, Legal Realists insist that some legal actors—notably, legislators and appellate court judges—should occasionally use social developments and new cases as triggers for rethinking the doctrine’s conventional understanding. That is, they should be used as opportunities to revisit a doctrine’s normative viability and reexamine its categories’ adequacy.”).

53. See, e.g., Lawrence Blume, Daniel L Rubinfeld & Perry Shapiro, “The Taking of Land: When Should Compensation be Paid?” (1984) 99:1 Quarterly Journal of Economics 71 at 92 (questioning whether the payment of compensation for land taken by eminent domain is efficient); Lawrence Blume & Daniel L Rubinfeld, “Compensation for Takings: An Economic Analysis” (1984) 72 Cal L Rev 569 (analyzing relationship between the Fifth Amendment, the Constitution, and takings doctrine); Daniel A Farber, “Economic Analysis and Just Compensation” (1992) 12 Int’l Rev L & Econ 125 (discussing the economic literature on takings); Fischel & Shapiro, supra note 28.

54. See Blume, Rubinfeld & Shapiro, supra note 53; Thomas J Miceli & Kathleen Segerson, “Private Property, Public Use, and Just Compensation: The Economics of Eminent Domain” (Economics Working Papers http://digitalcommons.uconn.edu/econ_wpapers/200712/; Thomas J Miceli, “Compensation for the Taking of Land Under Eminent Domain” (1991) 147 Journal of Institutional and Theoretical Economics 354.

55. See Yun-chien Chang, “Economic Value or Fair Market Value: What Form of Takings Compensation Is Efficient?” (2002) 20 Sup Ct Econ Rev 35 (discussing the scholarly literature regarding takings compensation).

56. See Blume, Rubinfeld & Shapiro, supra note 53.

57. See Stern, “Takings, Community, and Value”, supra note 50.

58. See Alexander, supra note 50 at 776-77; see Ellickson, supra note 50; see Fennell, supra note 50 at 963-64; see Public Ruses, supra note 50 at 866; see Merrill, supra note 50 at 82-85; see Singer, supra note 50 at 315-16; see Stern, “Takings, Community, and Value”, supra note 50 at 191-93; see Underkuffler, supra note 50 at 374-76.

59. See Stern, “Takings, Community, and Value”, supra note 50.

60. See, e.g., Brian Angelo Lee, “Just Undercompensation: The Idiosyncratic Premium in Eminent Domain” (2013) 113 Colum L Rev 593 (“Since, by definition, the property’s fair market value is determined by what a willing buyer would have to pay to a willing seller, fair market value does not include the special costs of an unwilling sale. Thus, the value of the condemnee’s autonomy, although shared in common with market participants and not idiosyncratically large, is entirely left out of fair market value compensation.”).

61. Ibid at 615.

62. Ibid.

63. These arguments may be divided into two major paths: first, a call to inherently consider distributive considerations in expropriation. See The Distributive Foundation, supra note 31; Jeffrey M Gaba, “Taking Justice and Fairness Seriously: Distributive Justice and the Takings Clause” (2006) 40 Creighton L Rev 569. Second, it may be understood as a call to consider past wrongs including large scale past expropriations that affected specific fragments of society or communities, such as post Second World War reparations claims, post-apartheid reparation and restitution claims and land reforms. For literature that deal with such claims see Gregory S Alexander, “The Complexities of Land Reparations” (2014) 39 Law & Soc Inquiry 874 discussing the historic context of taking land from people in the past); Rahul Kumar, “Responsibility, Reparations, and the Legal Entrenchment of Racial Hierarchy” (2016) 35 Crim Justice Ethics 151 (discussing reparations to the African-American community and takings law); Leif Wenar, “Reparations for the Future” (2006) 37:3 Journal of Social Philosophy 396 (discussing reparations for Holocaust survivors).

64. See Zachary D Hudson, “Eminent Domain Due Process” (2010) 119 Yale LJ 1280 (analyzing the disconnect between eminent domain and due process doctrine).

65. See Richard A Epstein, “Nuisance Law: Corrective Justice and its Utilitarian Constraints” (1979) 8 J Legal Stud 49.

66. See Zehr, Howard, Changing Lenses: A New Focus for Crime and Justice (Herald Press, 1990)Google Scholar (discussing restorative justice); Sullivan, Dennis & Tifft, Larry, Restorative Justice: Healing the Foundations of our Everyday Lives (Willow Tree Press, 2001)Google Scholar (posing a radical critique of the current criminal justice system); Strang, Heather, Repair Or Revenge: Victims and Restorative Justice (Clarendon Press, 2002)Google Scholar (comparing the results of restorative justice with the formal court-based justice system).

67. See, e.g., Howard Zehr & Harry Mika, “Fundamental Concepts of Restorative Justice” in McLaughlin et al, eds, Restorative Justice: Critical Issues (SAGE publications, 2003) 40; Michael Wenzel et al, “Retributive and Restorative Justice” (2008) 32 Law & Human Behavior 375 (comparing the application of restorative and retributive justice and their effect on personal identity); see Hadar Dancig-Rosenberg & Tali Gal, “Restorative Criminal Justice” (2013) 34 Cardozo L Rev 2313 at 2335-40 (demonstrating an integrative model that aims to synergize both restorative and punitive approaches).

68. Zehr & Mika, supra note 67.

69. Roche, supra note 16 (discussing the application of restorative justice values across a range of different regulatory fields).

70. Zehr, Howard, The Little Book of Restorative Justice: Revised and Updated (Skyhorse Publishing, 2015)Google Scholar (proposing workable principles to ease the application of Restorative Justice concepts).

71. Zehr, supra note 66.

72. Ibid.

73. Ibid at 24-28.

74. Ibid; see also Roche, Declan, Accountability in Restorative Justice (Oxford University Press, 2003)Google Scholar (discussing the application of restorative justice concepts in different countries); Sullivan & Tifft, supra note 67; Zehr & Mika, supra note 67.

75. See McCold, Paul, “Restorative Justice and the Role of Community” in Galaway, B & Hudson, J, eds, Restorative Justice: International Perspectives (Willow Tree Press, 1996)Google Scholar 85at 86 (discussing the role of community in restorative justice approaches).

76. Bazemore, Gordon & Schiff, Mara, Restorative Community Justice: Repairing Harm and Transforming Communities (Routledge, 2015)Google Scholar; Zehr & Mika, supra note 67. Sawin, Jennifer Larson & Zehr, Howard, “The Ideas of Engagement and Empowerment” in Johnstone, Gerry & Van Ness, Daniel W, eds, Handbook of Restorative Justice (Willian, 2007)Google Scholar 41 at 51.

77. Zehr, supra note 70 at 210.

78. Ibid.

79. See sources, supra note 74.

80. Ibid; see also Zehr, supra note 66 at 16-17.

81. See Laura S Underkuffler, “Tahoe’s Requiem: The Death of the Scalian View of Property and Justice” (2004) 21 Cornell Law Faculty Publications 727; Singer, supra note 50 at 331 (“[T]he crucial question is not just the rights of the individual owner vis-a-vis the state but the right relationships that must be established between that owner and others in the community.”).

82. See, e.g., Philip Nichols Jr, “The Meaning of Public Use in the Law of Eminent Domain” (1940) 20 BUL Rev 615 (providing a rationale for understanding and interpreting the public use requirement within eminent domain doctrine); Nicole Stelle Garnett, “The Public Use Question as a Takings Problem” (2003) 71 Geo Wash L Rev 934 (examining whether means-end review should be applied to eminent domain cases); Lawrence Berger, “Public Use Requirement in Eminent Domain” (1977) 57 Or L Rev 203 (discussing when a party have the right to condemn another’s property).

83. See Wyman, supra note 18.

84. See Stern, supra note 24.

85. See Accountability, supra note 74 (discussing the role of transparency in restorative justice); Sidney WA Dekker & Hugh Breakey, “‘Just Culture:’ Improving Safety by Achieving Substantive, Procedural and Restorative Justice” (2016) 85 Safety Science 187 (discussing the application of just safety in a way that’s conducive to reporting, engagement, and safety improvements).

86. See, e.g., Richard W Oliver, What is Transparency? (McGraw-Hill, 2004) (defining the concept of openness in varying areas of business and its role in the global economy); Christopher Hood, “Beyond Exchanging First Principles? Some Closing Comments” in Christopher Hood & David Heald, eds, Transparency, the Key to Better Governance? (Oxford University Press, 2006) 211 at 211-26 (discussing transparency and freedom of information); David Brin, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? (Reading, MA: Perseus, 1998) (discussing the effect that transparency and technology have on privacy).

87. Zehr, supra note 66.

88. See Accountability, supra note 74.

89. See Corrective Justice, supra note 43 at 409.

90. See ibid at 409.

91. See ibid at 410.

92. See Bazemore & Schiff, supra note 76 at 311-15.

93. See Corrective Justice, supra note 43 at 409-10.

94. Andrew Ashworth, “Is Restorative Justice the Way Forward for Criminal Justice?” (2001) 54 Curr Leg Probl 347 at 375 (discussing the potential application of restorative justice to criminal justice).

95. See Corrective Justice, supra note 43 at 409-10.

96. See Ashworth, supra note 94 at 375.

97. Zehr, supra note 70 at 210.

98. See above part II.

99. See Blume, Rubinfeld & Shapiro, supra note 53; see Blume & Rubinfeld, supra note 53; see Farber, supra note 53; Fischel & Shapiro, supra note 28.

100. See Bazemore & Schiff, supra note 49 at 311-15.

101. See McCold, supra note 75 (discussing different approaches about the roles of community in restorative justice).

102. For example, in cases where the expropriation has improved the condition of the property owner (by improving the owner’s safety condition due to the dilapidated condition of the property or an improvement in the economic situation in a market with no buyers).

103. See Stern, “Takings, Community, and Value”, supra note 50 (discussing indirect remedies for expropriation).

104. See Lee, supra note 35 at 615.

105. Most of these suggestions focus on providing self-assessment mechanisms to owners. See, e.g., Abraham Bell & Gideon Parchomovsky, “Taking Compensation Private” (2007) 59 Stan L Rev 871, 891-95; Lee Anne Fennell, “Taking Eminent Domain Apart” (2004) 2004 Mich St L Rev 957, 995-96; Saul Levmore, “Self-Assessed Valuation Systems for Tort and Other Law” (1982) 68 Va L Rev 771, 784-85.

106. See Lee, supra note 35 at 634-45.

107. See Fuller, supra note 47.

108. Joseph Raz, The Morality of Freedom at 204 (Clarendon Press, 1986).

109. Ibid at 370 (discussing the distinction between personal autonomy and moral autonomy).

110. See supra note 47.

111. Ibid.

112. Pre-expropriation negotiations are ubiquitous in practice, but only some jurisdiction require it of the government. See ALA CODE §§ 18-1A-22, -24, -74; IDAHO CODE ANN §§ 7-706 TO 710 (2004); IND CODE ANN § 32-24-1-3 to -16; Iowa CODE ANN §§ 6B.1 to 3 (West 2008); MONT CODE ANN 70-30-111, -202 (2009); ND CENT CODE §§ 32-15-06.1, 32-15-22 (1996).

113. See Hudson, supra note 64 at 1322-27.

114. Albert O Hirschman, Exit, Voice and Loyalty (Harvard University press, 1970).

115. 564.54 Acres of Land, 441 US at 511 (citing Miller, 317 US 369, 374 (1943); Cors, 337 US 325, 332 (1949)).

116. See Corrective Justice in a Nutshell, supra note 43 at 355-56 (“Because the injustice is identical from the standpoint of both parties, the reason for liability must be equally applicable to both. Thus the liability regime functions as a coherent enterprise in justification rather than as a hodgepodge of factors separately relevant only to one or the other of the parties.”).

117. See 564.54, supra note 49 at 511; Cors, 337 US 325, 332 (1949).

118. See Stern, “Takings, Community and Value”, supra note 50.

119. Zehr, supra note 66 at 22-23.

120. See Just Remedies, supra note 24.

121. See part IV.A. above.

122. See, e.g., Dagan, supra note 31.

123. See Stern, “Takings, Community and Value”, supra note 50 at 191-93 (discussing justifications for considering political and economic strength of owners in expropriations).

124. See Accountability, supra note 74 (discussing the role of accountability in restorative justice).

125. See Gabrielle M Maxwell & Allison Morris, “Research on Family Group Conferences with Young Offenders in New Zealand” in J Hudson et al, eds, Family Group Conferences: Perspectives on Policy and Practice (Federation Press, 1996) 88 at 107.

126. See Little Pink House, supra note 4 at 380.

127. Ibid.

128. This understanding based on the comprehensive nature of accountability on behalf of the community.

129. See Hudson, supra note 64. The Fifth Amendment to the United States Constitution provides that: “[N]or shall any person … be deprived of life, liberty, or property, without due process of law.” US Const amend V. Section One of the Fourteenth Amendment to the United States Constitution provides that: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” US Const amend XIV § 1.

130. See Hudson, supra note 64.

131. See, e.g., Frank H Easterbrook, “Substance and Due Process” (1982) 1982 Sup Ct Rev 85 (examining the rationale of the dichotomy between process and substance in cases when legislatures are allowed to define substance).

132. This is mainly because of the government delegating part of its law enforcement responsibilities to communities as well as the potential ad-hoc determination of remedies. See, e.g., James Q Whitman, “What Is Wrong with Inflicting Shame Sanctions?” (1998) 107 Yale LJ 1055 at 1087-92 (discussing the general discomfort American society has with shame sanctions and why).

133. See, e.g., Ellickson, supra note 50; John Fee, “Eminent Domain and the Sanctity of Home” (2006) 81 Notre Dame L Rev 783, 791; see Merrill, supra note 50 at 83.

134. See, e.g., Gideon Parchomovsky & Peter Siegelman, “Selling Mayberry: Communities and Individuals in Law and Economics” (2004) 92 Cal L Rev 75; see Just Remedies, supra note 24.

135. See Lee, supra note 35.

136. See Just Remedies, supra note 24 at 753-55.

137. Ibid.

138. See Accountability, supra note 74 at 55 and 99 (explaining the importance of inclusive and attentive decision making in a restorative justice processes).

139. Andrew Ashworth, “Responsibilities, Rights and Restorative Justice” (2002) 42 Brit J Crim 578, 581.

140. Ibid.