Unfair "Just Compensation": Reforming Eminent Domain Law for Small Business
指出美国现行征用法对“公正补偿”的解释仅覆盖有形财产，导致小企业在搬迁中无法获得商誉等无形资产的补偿，造成不公正负担，并探讨了加州改革经验及立法建议。
Private property rights are foundation of a free enterprise economy. A firm's ability to survive and prosper in competitive markets is often determined by how laws respecting property rights are interpreted by courts. The Fifth Amendment to United States Constitution, as well as provisions in most state constitutions, simultaneously protects private property interests while acknowledging government's power to expropriate. This power-the exercise of eminent domain-is available when legitimate public purposes require it, provided that is paid to owner of property taken.' Today, however, there is good reason to doubt whether Fifth Amendment's admonition [N]or shall private property be taken for public use without just is interpreted to protect fully property rightsof small business owner. While eminent domain law in abstract strikes an equitable balance between private rights and public needs, current interpretations and applications of just compensation clause raise significant legal, ethical, and economic issues. These concerns began to arise as economic landscape shifted from agrarian to urban. Prior to mid-1900s, eminent domain was invoked primarily to acquire farm lands in connection with development of nation's railroads, highways, and public utilities. Typically, such actions did not disrupt small businesses. Now, however, eminant domain proceedings are associated more commonly with urban redevelopment programs and public works projects. Each year such activities result in foreed relocation of thousands of businesses. While uses of eminent domain have expanded, definition of what constitutes property for eminent domain purposes has remained virtually unchanged. For nearly a century, federal and state courts have held that just compensation clause applies only to condemned physical property. As a result, businesses cannot recover for a variety of genuine and substantial losses. These losses include moving expenses, lost profits, inflated costs of equivalent property, and, most importantly for this article, damage to intangible assets such as goodwill. This restrictive interpretation of property eligible for jsut compensation, coupled with shift in use of eminent domain, has had unfortunate effect of imposing disproportionate losses on small business community, particularly those businesses that lease their premises and facilities. Such treatment has been denounced as a vicious injustice tantamount to the economic extermination of innocent people. The literature addressing this issue remains largely confined to opinions of legal scholars and jurists in law reviews and legal decisions. As a result, these commentaries have not received attention they deserve from small business community.In addition to making relevant literature more accessible to a wider readership, this article will (1) review precedent of noncompensability of business losses in eminent domain, with particular attention to loss of business goodwill; (2) use recent eminent domain law reform in California to illustrate progress that can be made (and shortcomings that remain to be addressed); and (3) identify implications for small business community while suggesting an agenda for legislative reform. NONCOMPENSABILITY: RATIONALE AND COUNTER-ARGUMENTS The requirement that just compensation be paid when property is taken under eminent domain seeks to prevent government from forcing private persons to bear public burdens which, in interests of fairness, should be shouldered by public as a whole. The guarantee of just compensation addresses need to redistribute economic costs from individual to society. It is a way of socializing private losses so that individuals need not bear a disproportionate share of costs of public improvements. …