Using Capture Theory and Chronology in Eminent Domain Proceedings


John H. Ryskamp


Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This factual showing has very broad implications, because it can be used in any case of government action which relies on compliance with minimum scrutiny.


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Date of this Version

May 2006