Eminent Domain

Does this mean that the Kelo decision doesn't require the local government to provide evidence of a "holdout problem?" I just assumed that it must require that, i.e. require that there be a modicum of sanity in the decision.

The holdout problem can be dealt with easily; make all offers contingent on 100% acceptance.

Trouble is, no one can clearly define a holdout problem. Because of this problem of indeterminacy, any policy with a holdout problem provision will turn into a license for government (the buyer) to decide if the seller should be forced into a transaction unwillingly. But this is terribly assymetrical. Why not also include a holdout provision in the tax code so that citizens who object to the high price of government can just force the government to provide its (so called) public goods at a lower price?

This is pretty good: possibility of seizing Souter's house using eminent domain!

http://www.freestarmedia.com/hotellostliberty2.html

You don't have to objectively define what a 'holdout premium' would look like. The nice thing about the legal system is that trial courts can be used as finders of fact. The gov't would have to present evidence that the property owner was trying to extract a premium to the judge & the owner could provide evidence in defense. It wouldn't provide the property owner with perfect protection but it would at least establish a barrier to abuse that does not exist with the current decision.

Boonton,

Fact finding, in the context of jurisprudence, means determining if something is an instance of some previously defined activity. The defining is done by those who make the laws and it generally works because the activity in question is objectively definable. Larceny, forgery, etc., are generally cut and dry. But holding out is like price gouging; both amount to charging a price that is deemed "too high," without any objective criteria for "too high." No amount of fact finding will get around this problem for the simple reason that definitions are not facts. They are abitrary boundary conditions defining the set of objects in the world to which an element of language may refer.

Aside detours through the philosophy of language, there would be a terrible incentive problem with a holdout clause. A holdout clause would leave it to the court to find fact with regard to whether a particular act was an instance of holding out and to define the activity of holding out. We can even assume that the government (the same one that reserves the right to engage in what would be stealing if you or I did it) won't tailor its fact finding to maximize its takings and the problem still doesn't go away. If the court finds that there is no holding out, then the government would have to pay a large sum to a small number of landowners. This also creates the opportunity for a corrupt court to help a friend in offloading unwanted property at a tidy profit. As soon as a few cases of corruption emerge, public opinion, driven by wealth envy toward those who manage to get large sums for their land, will force the courts to err on the side of finding that property owners are engaging in holding out.

Why should the government even be able to sieze the property of so-called "holdouts"? It seems me that "holdout" is just a perjorative for "wants more money than I'm willing to pay".