Taking From States: Sovereign Immunity’s Preclusive Effect on Private Takings of State Land


Where the private company seeks to exercise the power of eminent domain and condemn state-owned land, how should courts evaluate a state’s defense of sovereign immunity under the Eleventh Amendment? This Article traces the independent but overlapping histories of state sovereign immunity and federal eminent domain power. We argue that under current state sovereign immunity doctrine, within the limited instances in which Congress has delegated its eminent domain power to a private actor for a specified public use and just compensation, the private actor is nonetheless prohibited from wielding that power to take state lands, absent state consent. This Article ultimately concludes that a delegation of eminent domain authority to a private actor does not abrogate or waive the independent state power of sovereign immunity, therefore rendering private parties unable to exercise eminent domain to take state property. Although intertwined, the separate and distinct history and evolution of delegated eminent domain and sovereign immunity doctrines confirm that where they collide, state sovereign immunity is still supreme.


Stanford University Stanford, CA
  • Jennifer Danis & Michael Bloom, Taking from States: Sovereign Immunity's Preclusive Effect on Private Takings of State Land, 32 Stan. L. & Pol'y Rev. 59 (2020).
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