Brigham Young University Law Review
Just compensation for future interests should be directly responsive to the Fifth Amendment by directly addressing its dictate rather than detouring through objective standards which stress valuation rather than fairness. It is generally inappropriate to strictly adhere to any one predetermined standard in compensating owners whose property has been taken. The reasons behind the rules that govern the compensation awarded to an owner whose property has been taken have not vanished. However, these rules are frequently forsaken. If the United States Supreme Court is taken at its word, the normative basis for providing just compensation in all takings cases should be the Fifth Amendment's dictate of fairness and indemnity. Yet while the Supreme Court has repeatedly recognized the basis of just compensation as one of fairness and indemnity, it has also permitted blatant deviations through strict adherence to its fair-market-value standard.
Future interest cases illustrate the need to ensure that just compensation is directly responsive to the Fifth Amendment. This approach would permit the consideration of many significant factors that are currently ignored, such as demoralization costs and fiscal illusion. This would thereby enable the just compensation mandate to compensate for the neutered status of the public use requirement. The inherently amorphous nature of this approach can be adequately structured with proper jury instructions as well as the continued use of specialized statutes. The usual objections to any fairness approach, however, lose cogency when the just compensation requirement is viewed, as it currently must be, as the final protection against governmental abuses of private property.
Laura H. Burney, Just Compensation and the Condemnation of Future Interests: Empirical Evidence of the Failure of Fair Market Value, 1989 B.Y.U. L. Rev. 789 (1989).