The study which follows attempts to trace, in a necessarily limited fashion, the evolving use of eminent domain on behalf of private interest groups throughout the last century and a half of American legal history. Part One of the study traces the broadening scope of eminent domain in the United States during the 19th and 20th centuries, focusing on the direct use of eminent domain by private interest groups as a key element in the increasing breadth of the power. Part Two delineates the process whereby one modern private interest group-an informal aggregation of American colleges and universities-succeeded in acquiring access to the states'power of eminent domain through Section 112 of the federal urban renewal program. Although Section 112 has received surprisingly little attention from students of the urban renewal program," within ten years of its inception the statute had been used to generate three quarters of a billion dollars worth of federal matching money for participating communities and to acquire thousands of acres of privately owned urban land for university expansion.' Part Three of the present work seeks to trace the process whereby the city of Nashville, Tennessee, sought to participate in just such a Section 112 urban renewal project. The case study of Nashville's experience with Section 112 focuses upon the process by which one community resolved to commit its power of eminent domain to assist the expansion of a private university and the tensions within the community produced by that decision. Although Nashville's experience with Section 112 is by no means necessarily typical of those of the hundreds of other cities that participated in the program, it would seem to indicate that in at least one community, the federal urban renewal process combined with local circumstances to cause those persons who were affected most directly by the project to have the least practical influence in the political and administrative decisions that were eventually to lead to the loss of their property.Moreover, Nashville's experience would seem to suggest that while the use of eminent domain on behalf of private institutions has been an integral part of American legal history, a vocal minority of citizens continues to resist the process on philosophic grounds that recall the attitude of Blackstone and the 18th century legal system towards private property. In large measure because they believed that eminent domain should not be exercised on behalf of a private university, a small number of persons whose land was to be taken by the Nashville project continued to resist the plan for seven years after its implementation had already begun. Their political and legal struggles were ultimately fruitless, but the time and energy required to reopen and resolve the issue of the project's validity represented a considerable cost to the participants in the struggle as well as to the community as a whole. Nashville's protracted struggle with its Section 112 urban renewal project would thus seem to indicate that a considerable social tension continues to exist be-tween a legal system which recognizes the use of eminent domain on behalf of private institutions and a system of personal values that continues to place a premium upon the inviolacy of private property. The tension between the two and the social struggle it perhaps inevitably creates must, in the end, be recognized as one of the inherent costs of using eminent domain to assist the activities of particular private institutions.This study does not attempt to trace all the benefits or effects flowing from a Section 112 urban renewal project and the use of eminent domain. The major focus is upon the concerns and social costs to the community, the residents and the private institutions involved. To this end, the authors have attempted to present, objectively, the practical results of the program's implementation as well as the legal results determined by the judicial system.
Charles Fels Special Projects Editor, N. T. Adams, Richard Carmody, Margaret E. Clark, Randolph H. Lanier, James C. Smith, and Robert M. White,
The Private Use of Public Power: The Private University and the Power of Eminent Domain,
27 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol27/iss4/3