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Hastings Constitutional Law Quarterly

Abstract

May the government use eminent domain to take a private citizen's right to sue? May the government take a citizen's right to sue and exercise it, or take that right to sue and deliberately not exercise it? Even more controversial, may the government use eminent domain to condemn your legal claim and, consistent with its broad powers as delineated in Kelo, transfer that claim to another private party to pursue (or not)?

This Article explores these questions by examining the Takings Clause implications of considering the right to sue as private property. Specifically, the Article shows that legal claims are private property for constitutional purposes, and that government conduct of this sort would likely be acceptable as a "public purpose." In addition, the Article assesses what sort of "just compensation" might be appropriate when the government takes a private citizen's lawsuit. Moreover, the policy implications of considering legal claims as private property are considered throughout the Article.

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