Abstract

Excerpted From: Antonia Izuogu, Equitable Market Value: How the Government Cannot Afford the Loss of Black Wealth, Culture, and Joy When Calculating Just Compensation for Eminent Domain Proceedings, 69 How. L.J. 362 (Winter 2026). (Full Document) (190 Footnotes Omitted)

Under the Takings Clause of the Fifth Amendment of the United States Constitution, just compensation equates to the property’s fair market value. The displacement of African Americans dates back to 1526 and continues to the present day in the United States. The Atlantic Slave Trade, slave auctions, the arguably involuntary Great Depression, redlining, and eminent domain all resulted in the expulsion of African Americans from their land, their home. New case precedent is necessary to acknowledge the African American experience of losing claim to American soil and the “manifest injustice” that eminent domain has forced on the community. Current case precedent states that compensation is a measurement of suitable uses of the property for its environment or what is reasonably expected of the land in its immediate future; however, it does not encompass “imaginary uses” or “speculative schemes” for the property. Considering this precedent, some scholars challenge the fair market value equation by either expanding the factors to consider when measuring just compensation or presenting alternatives to just compensation, such as “dignity restoration,” and compensating for the property owner’s mental distress from losing their land. Other proposals include having property owners and developers communicate directly to collaboratively plan the future of the land, as well as an option to provide replacement housing for such landowners to prevent instability. These recommendations are race-neutral and lack attention to the massive disparity African Americans experience in land ownership.

Eminent domain abuse, especially in communities with a majority of Black property owners, has oppressed Black property ownership, evident through racist history and current practices. The premise of this Note is to raise the bar for just compensation to encompass the full extent of the Black landowner’s losses in the forced sale: their generational wealth, sense of place, and joy. To achieve this option, I suggest African American property owners, undergoing eminent domain, ideally those with a rich cultural tie to their land, such as those with enslaved ancestors, sue the government under the Fifth Amendment’s Due Process Clause to justly retain the wealth, joy, and culture that property bestows to Black communities, under the right to just compensation. The Supreme Court has acknowledged the impact of eminent domain on particular communities--an acknowledgment that emboldens the discussion of this Note, which emphasizes that the Supreme Court should revise the fair market definition and calculation to stop the cycle of eminent domain abuse in these communities and address the systematic undervaluation of Black property. This is crucial because of the significance of property to African Americans and the need to fairly compensate this population, given their struggles to claim property, maintain ownership, and find comparable properties to continue building generational wealth. African Americans have lacked stability and the full potential to claim a stake in this country. In the wake of resiliency, Black landowners should be protected from having to leave their property without “just” compensation and discontinue the cycle of disadvantaging African Americans on their journey of liberation from blatant anti-Blackness via policies and laws that keep Black communities oppressed.

Part II surveys the history of “legalized abuse” within the Black land struggle--tracing Supreme Court interpretations of “public use” and the trajectory of Black land ownership in America--to highlight how eminent domain has and continues to be weaponized against Black communities. Part III examines the current limitations of “just compensation,” contending that the “willing seller fiction” and traditional fair market value standards fail to account for the value of generational wealth, joy, and culture attached to property. Part IV argues that a Due Process claim can serve as a procedural vehicle to compel the Supreme Court to address eminent domain abuse in Black communities. This Note posits that discriminatory valuation--which ignores the subjective value of generational wealth, joy, and culture--infringes upon the fundamental right to just compensation. To remedy this, Part IV introduces the “equitable market value,” a reparative valuation theory that incorporates these traditionally excluded elements to truly make the property owner whole. The Note contends that the Court must consider “withintrification”--a resident-led revitalization model--as a less restrictive alternative to the total displacement of Black property owners. This Note concludes in Part V by asserting that the equitable market value is not optional, but a mandatory requirement to meet the constitutional requirement of just compensation

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The Supreme Court should recognize that subjective value is required beyond the fair market value of a property at the time of taking, in a due process claim for just compensation, to include equitable market value (subjective value within the calculation of fair market value) as the minimum cost of just compensation, not an optional component. Therefore, equitable market value is the baseline for determining just compensation. There are numerous reasons why the legal meaning of just compensation, the fair market value of property at the time of taking, is not an equitable remedy for eminent domain, particularly for African American property owners. First, the Black Land Crisis from 1919 to 1997 debilitated generational wealth for African Americans. Second, eminent domain abuse affects African American owners and residents at a disproportionate rate compared with owners in other racial groups. Third, the inaccuracy of appraisal methods undervalues property in predominantly Black neighborhoods. And fourth, the racial wealth gap in America between Black and White citizens continues to alienate Black people from the American Dream, which is founded on property ownership.

Eminent domain is antithetical to the American Dream. Again, moving from being chattel property to real property owners, African Americans have tried to forge a sense of belonging and stability--an intangible realization of the American Dream. Eminent domain places the American Dream for sale, often undervaluing Black-owned property, and with it, the trials and tribulations of the property owners’ ancestors who struggled to survive in this country to allow their descendants to participate in the “dream.” Accounting for the generational wealth lost because of the government’s taking is necessary to make a property owner’s sacrifice of property and the American Dream wholly compensatory. The American Dream cannot survive if the property owner is undercompensated, and therefore not made whole, because of “occasional inequity.” The government either must find alternative property or support withintrification until the public can honestly afford to equitably compensate the owner, therefore not continuing to force marginalized property owners to forsake their “dream” to bear the cost of public use.

J.D. Candidate, 2026; Executive Notes & Comments Editor, Howard Law Journal, Vol. 69; B.S. Health Sciences, Spelman College, 2021. Master of Urban and Regional Planning, University of California, Los Angeles, 2023.