Dinosaurs, airplanes, shipwrecks and eminent domain

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Thomas Miceli is a professor of economics at the University of Connecticut. Miceli’s work focuses on eminent domain, which is a field of economic law based in the Fifth Amendment of the U.S. constitution. 

“In that Fifth Amendment is a very short clause that says, nor shall private property be taken for public use without just compensation,” Miceli said. “This set of very few words is very vague, very general. But it essentially has been interpreted by courts to give the government the power to take private property from citizens without their consent, for use in public projects, as long as they pay the fair market value of that property.”

The most obvious example is the government paying a citizen for land to use in public development. While this may seem straightforward on first glance, it is much more complicated.  

“Why should the government have that power? Why does the government have that power? What sorts of projects should it be used for? Are there limits on it? How does it affect people’s investment in their property? Is that really important for the creation of public goods? Those are the sort of questions I look at,” Miceli said.  

“In that Fifth Amendment is a very short clause that says, nor shall private property be taken for public use without just compensation.”

One interesting example of this is dinosaur bones and fossils. If a citizen finds fossils on their property, the government can use eminent domain to buy those fossils. Miceli has done research on the intersection of eminent domain and paleontology.  

“It may seem odd to an ordinary person that those issues have an economic element to them, because they’re basically science, right?” Miceli said. “The fossils have private value, just like my land has private value, but it also has a public value, which is the scientific value.” 

Fossils in particular are an interesting case because the land around on which they’re found may also have scientific value, according to Miceli.  

“The other thing that’s important about the fossil part is it’s not just the bone itself,” Miceli said. “Almost always more important is the strata and the location and what’s surrounding it in the land.” 

Eminent domain becomes even more complicated when studying non-land property. Miceli gave the example of airspace.  

“Under the old English common law, when you own a piece of property, you own the space of air above it up to infinity, and you also own the ground down to the center of the earth, right. This was called the ad coelum law,” Miceli said.  

However, this law was developed before the advent of airplanes.  

“That obviously was not a problem before airplanes, but once airplanes existed, it was now important that people not have control over the airspace, not only so that they wouldn’t interfere with planes, but so they wouldn’t charge airlines to fly over their property,” Miceli said. “And the same thing is true if there are maybe minerals or other things underground.”  

Shipwrecks are another area of eminent domain Miceli has released research in. Eminent domain is complex in this case as well, as it involves maritime salvage law, which basically says that anyone who helps rescue things at sea should be compensated for their work.  

Miceli explained that he became interested in studying economic law and eminent domain in his undergraduate career.  

“It actually dates back a long time to my undergraduate days,” Miceli said. “I took a course in economic analysis of law as an undergraduate econ major, and one of the topics my professor talked about was eminent domain.” 

Miceli said he continued studying economic law because of the olio of intriguing cases.  

“One of the things I love about studying the law as an economist is that I can find problems and situations in the law that I could never dream of, as the law has studied everything,” Miceli said. “There’s an endless supply of interesting topics there for me as a scholar.” 

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