Abstract
Contingency theory indicates there is no one best way to lead, organize, perform or structure an act, entity or task. This aligns well with Niklas Luhmann's (2004) description of autopoietic transformation of law connecting land use with commercial development. Contingency theory helps planners confront problems with an open mind, appreciating the fluidity of conditions and helping them to better tailor response to crisis. This is necessary for adaptation to variation in conditions. The problem of underperformance of economic resources is when disutility poses an obstacle to development (slowing productivity). Condemnation expropriation offers a solution of primitive accumulation stimulation. This article examines public use in the context of social need and incompatible priorities competing for limited resources. Eminent Domain law is recently being transformed in radical ways. While it has always been about state-sponsored and legally sanctioned expropriation, private purpose is ascending in dominance. Constructing bridges, canals, highways, ports, railways and other infrastructure sometimes requires forced dispossession. The unintended consequence of this is damage to personal autonomy. Since the 1980s corporate and private interests have increasingly asserted themselves in a privatized interpretation of Eminent Domain. This produces significant harm. This article examines the proposed Keystone Pipeline Expansion Project in the context of privatization and increasingly broad applications of Eminent Domain as an aspect of "dispossession by expropriation" (Araghi, 2000). The negative experience of expropriation threatens the viability of Keystone since the analysis turns on "public use" and reveals that hiding at the core of proposed energy independence and consumer gain is a "public purpose pretext" of profit-seeking cloaked in the language of "public use." The solution to this problematic is to admit "pretext" is poised against social welfare. This understanding frees decision makers to focus on the practical aspect of projects and to genuinely determine whether the community will benefit. Careful analysis of economic development takings cases - Berman (1954), Midkiff (1984) and Kelo (2005), (FN1) reveals Keystone's "public purpose" is arguably a disqualifying "pretext." Keywords condemnation, dispossession, eminent domain, expropriation, neoliberalism, privatization, public use