Reviving Necessity in Eminent Domain

Abstract

The necessity doctrine states that a condemnor may only take property via eminent domain that is necessary for furthering a proposed public use. With the advent of the Kelo v. City of New London decision and its deferential treatment of public use, necessity remains one of the few existing checks on government discretion in eminent domain. This article proposes a modest revival of the dormant necessity doctrine that preserves government discretion while curbing the reckless exercise of eminent domain.