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Published online by Cambridge University Press: 11 February 2014
Eminent domain, or the expropriation of private property, is among the most controversial of legal arrangements. The challenges and threats that it poses to private property make it the subject of debate and dispute. Surprisingly, however, most Western jurisdictions embrace a similar formula to address expropriation, both in terms of the purposes that justify such action and the compensation that should be awarded to property owners.
This article challenges the prevailing eminent domain formula, according to which, regardless of the circumstances of the expropriation, compensation to the property owner is determined by reference to the market value of the property. By exploring the case of Israel's 2005 disengagement plan, as a result of which 21 residential communities were uprooted by expropriation, this article argues that loss of communality should be taken into account in expropriations that uproot entire communities. However, in order for the legal arrangement to be efficient, fair and, of no less importance, to reflect the values embodied in the right to property, it should be constituted within a normative infrastructure that takes into account the values that the society wishes to endorse, and the inner meaning of these values.
1 For a comprehensive comparative overview, see van der Walt, AJ, Constitutional Property Clauses: A Comparative Analysis (Kluwer Law International 1999)Google Scholar. See also Alexander, Gregory S, The Global Debate over Constitutional Property: Lessons for American Takings Jurisprudence (University of Chicago Press 2006).Google Scholar
2 See, eg, Meidinger, Errol E, ‘The “Public Uses” of Eminent Domain: History and Policy’ (1980–81) 11 Environmental Law 1Google Scholar; Berger, Lawrence, ‘The Public Use Requirement in Eminent Domain’ (1977–78) 57 Oregon Law Review 203Google Scholar; Cohen, Charles E, ‘Eminent Domain after Kelo v. City of New London: An Argument for Banning Economic Development Takings’ (2005–06) 29 Harvard Journal of Law and Public Policy 491.Google Scholar
3 In the United States, the courts interpreted the constitutional requirement of ‘just compensation’ as the market value of the property: see United States v 564.54 Acres of Land 441 US 506, 510–11 (1979); Almota Farmers Elevator & Warehouse Co v US 409 US 470, 473 (1973); United States v Miller et al 317 US 369, 374 (1943). However, as a response to the US Supreme Court decision in Kelo v City of New London 545 US 469 (2005), several states have made changes to their takings laws, determining the rate of compensation at above the market value: see, eg, Michigan (Michigan Constitution, art X, s 2 (amended in 2006)) and Connecticut (SB 167 (2007)), which require payment of ‘not less than 125 percent of that property's fair market value, in addition to any other reimbursement allowed by law’; Indiana (HB 1010 (2006)) which requires payment of compensation where the property condemned is the person's primary residence at a rate equal to 150% of fair market value, and Kansas (SB 323 (2006)), which increases the level of compensation to landowners whose property is condemned to 200% of the average appraised value of the property. In other Western jurisdictions, expropriation laws recognise the ‘market value’ criterion as the cornerstone for calculating compensation for expropriation: see, eg, van der Walt (n 1) 58–60 (Australia), 150 (Germany) and 343–48 (South Africa).
4 See, eg, Epstein, Richard A, Takings: Private Property and the Power of Eminent Domain (Harvard University Press 1985) 183–84Google Scholar; Krier, James E and Serkin, Christopher, ‘Public Ruses’ (2004) Michigan State Law Review 859Google Scholar, 867; Bell, Abraham and Parchomovsky, Gideon, ‘Taking Compensation Private’ (2007) 59 Stanford Law Review 871Google Scholar, 885–90; Knetsch, Jack L and Borcherding, Thomas E, ‘Expropriation of Private Property and the Basis for Compensation’ (1979) 29 University of Toronto Law Journal 237CrossRefGoogle Scholar; Lunney, Glynn S Jr, ‘Compensation for Takings: How Much is Just?’ (1993) 42 Catholic University Law Review 721Google Scholar; Bigham, W Harold, ‘“Fair Market Value”, “Just Compensation”, and the Constitution: A Critical View’ (1970–71) 24 Vanderbilt Law Review 63Google Scholar; Gergen, Ann E, ‘Why Fair Market Value Fails as Just Compensation’ (1993) 14 Hamline Journal of Public Law and Policy 181Google Scholar; Ellickson, Robert C, ‘Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls’ (1973) 40 University of Chicago Law Review 681CrossRefGoogle Scholar; Kelly, James J Jr, ‘“We Shall Not Be Moved”: Urban Communities, Eminent Domain and the Socioeconomics of Just Compensation’ (2006) 80 St John's Law Review 923.Google Scholar
5 cf Smith, Henry E, ‘Property as the Law of Things’ (2012) 125 Harvard Law Review 1691Google Scholar. See also Smith, Henry E, ‘Community and Custom in Property’ (2009) 10 Theoretical Inquiries in Law 5Google Scholar; Merrill, Thomas W, ‘The Property Prism’ (2011) 8 Econ Journal Watch 247Google Scholar, 247.
6 See Hillery, George A Jr, ‘Definitions of Community: Areas of Agreement’ (1955) 20 Rural Sociology Journal 111.Google Scholar
7 See Parchomovsky, Gideon and Siegelman, Peter, ‘Selling Mayberry: Communities and Individuals in Law and Economics’ (2004) 92 California Law Review 75CrossRefGoogle Scholar. Loss of communality may be seen as a sub-category of a greater issue that questions the exclusion of the owners' subjective value from the eminent domain compensation calculation: see, eg, Krier and Serkin (n 4) 866; Ellickson (n 4) 736–37; Fennell, Lee Anne, ‘Taking Eminent Domain Apart’  Michigan State Law Review 957Google Scholar; but cf Garnett, Nicole Stelle, ‘The Neglected Political Economy of Eminent Domain’ (2006) 105 Michigan Law Review 101.Google Scholar
8 Such initiatives intensified after the US Supreme Court's decision in Kelo (n 3): see, eg, Somin, Ilya, ‘Let There Be Blight: Blight Condemnations in New York after Goldstein and Kaur’ (2010–11) 38 Fordham Urban Law Journal 1193Google Scholar; Cohen (n 2) 492; Blais, Lynn E, ‘Urban Revitalization in the Post-Kelo Era’ (2007) 34 Fordham Urban Law Journal 657.Google Scholar
9 The principal recognition that economic development qualified as a valid public use under the Federal Constitution of the United States was reaffirmed in Kelo (n 3). See Cohen (n 2).
11 Parlow, Matthew J, ‘Unintended Consequences: Eminent Domain and Affordable Housing’ (2005–06) 46 Santa Clara Law Review 841.Google Scholar
12 See Isabel Wilkerson, ‘350 Feet above Flood Ruins, a River Town Plots Rebirth’, The New York Times, 31 October 1993. Similar events occurred in Chelsea, Iowa, where ‘[p]eople were split over whether to move away from this low spot beside the Iowa River or to stay put’ in the aftermath of serious flooding in 1993: see Monica Davey, ‘Iowa Town Survived Flood, but Teetered in the Aftermath’, The New York Times, 14 July 2003.
13 See http://www.lkab.com/en/Future/Urban-Transformations/FAQ. For more on the story of Kiruna and Malmberget see http://www.strangeharvest.com/mt/archive/the_harvest/kiruna_the_town.php; ‘Sweden to Save “Sinking” Town’, BBC News, 28 September 2004, http://news.bbc.co.uk/2/hi/europe/3694204.stm; http://www.lkab.com/en/Future/Urban-Transformations.
14 Israeli Government Decision No 5345 of 27 January 2013 (in Hebrew), http://www.pm~o.gov.il/Secretary/GovDecisions/2013/Pages/des5345.aspx.
15 Dissenting opinion of Ryan J in Poletown Neighborhood Council v Detroit, 304 NW 2d 455 (1981); Wylie, Jeanie, Poletown: Community Betrayed (University of Illinois Press 1989) 58.Google Scholar
16 Kelo (n 3).
17 For example, Weisburd, David and Lernau, Hagit, ‘What Prevented Violence in Jewish Settlements in the Withdrawal from the Gaza Strip: Toward a Perspective of Normative Balance’ (2006–07) 22 Ohio State Journal on Dispute Resolution 37Google Scholar, 43.
21 Newman (n 19) 194.
22 See David Newman, ‘The Role of Gush Emunim and the Yishuv Keillati in the West Bank 1974–1980’, PhD dissertation, University of Durham, United Kingdom, 1981; Newman (n 19) 195.
23 Gordon, Neve, ‘The Triumph of Greater Israel’ (2004) 41 National Catholic Reporter 18.Google Scholar
24 The Foundation for Middle East Peace, ‘Report of Israeli Settler Population 1972–2006’, http://www.fmep.org/settlement_info/settlement-info-and-tables/stats-data/israeli-settler-population-1972-2006.
25 See Schnell, Izhak and Mishal, Shaul, ‘Place as a Source of Identity in Colonizing Societies: Israeli Settlements in Gaza’ (2008) 98 Geographical Review 242Google Scholar, 245–48.
27 The Foundation for Middle East Peace (n 24).
29 For example, in an interview with T, a member of Gadid, in Nitzan, Israel (25 June 2011), she mentioned that ‘[i]n the early years we went to Deir al-Balah and Khan Yunis in order to shop. After our wedding, David and I walked around Gaza; he entered one shop while I went to another. I took my children to a photographer in Khan Yunis to take their pictures’. Another testimony to the peaceful relationship between the parties was: ‘We were so involved with the Palestinians …, for example, at our wedding; half the population of Deir al-Balah was at the wedding. I'll show you pictures, with the Mukhtar of the town and with the sheikhs and all … David was also the coordinator of security and he was very connected. And … we even had a party for the month of Adar [a Jewish month], at the beginning of the month, and we brought … There are many fishermen in Deir al-Balah; it's close, it's near the sea, so they brought the fish, and we had a fish dinner at the beginning of Adar, a fish dinner together with the community of … you know, with the Palestinians from Deir al-Balah’. A similar description appeared in an interview with S, a resident of Ganei Tal, in Yad Binyamin, Israel (1 January 2012), who said: ‘I traveled in Gaza with my two little girls. I just traveled there. And I'm not talking about Khan Yunis. It was almost our capital city. We bought Passover dishes and all kinds of fabrics; on Purim [a Jewish holiday], when we needed bright fabrics …, we went to Khan Yunis. We bought vegetables there, even sandals for [the] children. My mother was always laughing: “Where are your sandals from?” And I answered: “from Khan Yunis”. It was natural. It was natural. The relations with the Arabs were, at first, really good'.
30 The Foundation for Middle East Peace (n 24).
31 For example, the testimony of R Yigal Kaminetzky, who served as the Chief Rabbi of the evacuated area before the Commission of Inquiry that examined the disengagement plan and its results, 17 June 2009 1437, 1529–70, available (in Hebrew), http://elyon1.court.gov.il/heb/hitnatkut/doc/protocol_17_06_09.pdf. See also Schnell and Mishal (n 25) 245–48; Billig, Miriam, ‘Is My Home My Castle? Place Attachment, Risk Perception, and Religious Faith’ (2006) 38 Environment and Behavior 248.CrossRefGoogle Scholar
34 Tzfadia, Erez, ‘Geography and Demography: Spatial Transformation’ in Ben-Porat, Guy (ed), Israel since 1980 (Cambridge University Press 2008) 42Google Scholar, 48.
36 For example, Miriam Billig, ‘Settlers’ Perspectives on the Disengagement from Gaza', The Floersheimer Institute For Policy Studies, Publication #3/44, 2005 (in Hebrew).
37 The disengagement plan, although in a limited version, was approved by the Israeli government on 6 June 2004 and by the Israeli parliament (the Knesset) on 26 October 2004. For the Israeli government decision see http://www.sela.pmo.gov.il/PMO/Archive/Decisions/2004/06/des1996.htm.
38 Rynhold and Waxman (n 20).
39 For a detailed review of the 21 evacuated communities, as well as their characteristics, see ‘History of Gush Katif – Gaza Strip’, The Jewish Agency for Israel, http://www.jewishagency.org/JewishAgency/English/Jewish+Education/Compelling+Content/Eye+on+Israel/Current+Issues/Peace+and+Conflict/Disengagement/2.+History+of+Gush+Katif++Gaza+Strip.htm#f.
40 Implementation of Disengagement Plan Law 2005.
41 Kliot, Nurit and Albeck, Shmuel, Sinai – Annatomia shel Preida (Sinai – Anatomy of Separation) (Am Oved 1996)Google Scholar; Nurit Kliot, ‘Decision-Making on Settlement Evacuation in Israel: Compensation and Resettlement, Sinai 1982 Gaza Region and North Samaria 2005’, The Floersheimer Institute for Policy Studies, Publication #3/45, 2005, http://www.fips.org.il/site/p_publications/item_en.asp?doc=&iss=&iid=726.
42 See Yehuda Troan, ‘The Examination of Historic Precedents to the Disengagement Plan’, Center of Research and Information of the Israeli Parliament (the Knesset), 2 February 2005 (in Hebrew), http://www.knesset.gov.il/mmm/data/pdf/m01039.pdf.
43 For example, US Constitution, Amendment V; Basic Law of the Federal Republic of Germany (Grundgesetz), art 14; Constitution of the Republic of South Africa, art 25.2.
44 For the most part, the Israeli expropriation regime consists of two primary laws: the Mandatory Land Ordinance (Acquisition for Public Purposes) 1943 (LO) and the Planning and Building Law 1965 (P&B Law). For a comprehensive review of the Israeli expropriation legislation, see Holzman-Gazit, Yifat, Land Expropriation in Israel: Law, Culture and Society (Ashgate 2007) 14–18.Google Scholar
45 LO, ibid art 20(2)(a); P&B Law, ibid art 190.
46 The owner's entitlement to reclaim his or her property where the property was not used for the public use for which it was expropriated in the first place was established by the Israeli High Court of Justice (HCJ) in HCJ 2390/96 Karasik and Others v State of Israel 2001 PD 55(2) 625. In 2010, the Israeli legislator amended the LO so that it would address the owner's entitlement to reclaim the property in cases where the purpose of the expropriation had changed: see LO (n 44) arts 14A and 14B. See also Holzman-Gazit (n 44).
47 LO (n 44) art 12(b).
48 Disengagement Law (n 40) art 1(2) (emphasis added by author).
49 This understanding represents a turn from a monist conception of property to a value pluralistic one, whereby the legal arrangement regarding the property in question should be constructed in accordance with the values that this specific property maintains: see Dagan, Hanoch, Property: Values and Institutions (Oxford University Press 2011)CrossRefGoogle Scholar; Singer, Joseph W, Entitlement: The Paradoxes of Property (Yale University Press 2000) 37CrossRefGoogle Scholar; Alexander, Gregory S, ‘Pluralism and Property’ (2011) 80 Fordham Law Review 1017.Google Scholar
50 Disengagement Law (n 40) ss E(a) and E(d), respectively.
51 Such market failures could be attributed to the precarious security situation in the evacuated area: see HCJ 1661/05 Gaza Coast Regional Council v The Knesset 2006 PD 59(2) 481, 675.
52 The second amendment to the Law regarding the normative calculation of compensation for residence and the third amendment to the Law regarding normative compensation for business.
53 Disengagement Law (n 40) art 85.
55 Gaza Coast Regional Council (n 51) 642.
56 Dagan, Hanoch, ‘Pluralism and Perfectionism in Private Law’ (2012) 112 Columbia Law Review 1409Google Scholar; Parchomovsky and Siegelman (n 7) 79.
57 Disengagement Law (n 40) art 85.
58 See text to nn 50–52.
59 State Commission of Inquiry into the Handling of the Evacuees from Gush Katif and Northern Samaria by the Authorized Authorities, 6 June 2010 (Commission Report), http://elyon1.court.gov.il/heb/hitnatkut/doc/final_report_eng.pdf.
60 Parchomovsky and Siegelman (n 7) 138.
61 Yair Sheleg, ‘Hamashmaut Hapolitit Vehachevratit Shel Pinuy Yeshuvim BeYehuda, Shomron Veaza’ (‘The Political and Social Significance of Evacuating Settlements in Judea, Samaria and Gaza’), Israel Democracy Institute, Research Paper 42, 2004, 49 (in Hebrew), http://www.idi.org.il/media/322622/pp_42.pdf.
62 Israeli State Comptroller and Ombudsman, ‘Monitoring Report Regarding Aspects of the Treatment of Gush Katif's Evacuees Following the Disengagement Plan's Implementation’, 7 January 2009, 8 (in Hebrew), http://www.mevaker.gov.il/serve/showHtml.asp?bookid=536&id=191&contentid=9930&parentcid=9928&frompage=16&direction=1&bctype=0&startpage=8&sw=1366&hw=698.
63 Disengagement Law (n 40) art 1(4).
65 In art 85(d) the Law provides for several issues that the contract may deal with. Among these issues are provisions regarding the allocation of alternative land (inter alia, through exemption from a tender); payments to received communities and the re-establishment of public institutions. However, the Law does not specify the proper arrangement for each of these issues, leaving it to the parties' discretion.
66 Israeli State Comptroller and Ombudsman (n 62) 15.
67 Disengagement Law (n 40) art 85(a).
70 Commission Report (n 59) 11.
72 See the testimony of Ranan Dinur – who served as Director-General of the Ministry of Industry and Commerce at the time (and then as Director-General of the Prime Minister's office) – before the Commission of Inquiry that examined the disengagement plan and its results, 22 July 2009 (in Hebrew), http://elyon1.court.gov.il/heb/hitnatkut/doc/protocol_22_07_09.pdf.
73 For example, Ehrenhalt, Alan, The Lost City: Discovering the Forgotten Virtues of Community in the Chicago of the 1950s (Basic Books 1995)Google Scholar; Erikson, Kai T, Everything in its Path (Simon & Schuster 1978)Google Scholar; Putnam, Robert D, Bowling Alone: The Collapse and Revival of American Community (Simon & Schuster 2000).CrossRefGoogle Scholar
74 Disengagement Law (n 40) art 46.
75 Protocol of a meeting of the Knesset's Finance Committee subcommittee for determining compensation for businesses in the Disengagement Law, 30 January 2005 (author's translation).
76 An exception can be found in several American states (see n 3), and in South Africa where the Expropriation Act (Act No 63 of 1975), s 12(2), offers additional compensation for non-financial losses, including inconvenience and disturbance (this compensation is termed ‘solatium’ in South African legal jargon). Solatium is calculated as a percentage of the total claim, with a maximum amount. For a comprehensive review of the South African mechanisms for compensation for expropriation see Wilhelmina Jacoba (Elmien) du Plessis, ‘Compensation for Expropriation under the Constitution’, PhD dissertation, Stellenbosch University, 20 February 2009.
77 See Gaza Coast Regional Council (n 51) 642–43 (translated from Hebrew by the author).
78 Ellickson did not rule out the possibility of ‘[d]ifferent percentages based on factors such as the longevity of occupancy of the injured neighbor, or whether the neighbor is an owner-occupant or a renter’, but conditioned such differentiation on empirical verification: Ellickson (n 4) 736–37.
79 See text to nn 121–23.
80 Interview with T (n 29) (‘Why should you create a reality that makes me feel second class? Why? What happened? Why do I need to argue before the inquiry commission that I know that the state contracted with community X for this and that? How am I different from them? My husband established this whole bloc of communities from scratch. Worked like a dog. Worked like a dog. He scoured the whole country to find families who wanted to live in this dump. It was a dump then. Really, he went above and beyond. He worked like a dog. He built a community from scratch. And now we are classified as second class? They [Ganei Tal] are better than me? They will get a better deal? Their children will get more than my son? Why?’).
81 This tension caused evacuees from different communities to file a petition with the Israeli High Court of Justice arguing that the Israeli government discriminated against them in comparison with residents of Ganei Tal: see HCJ 10051/08 The Resettlement Association for the Nizanim Area v Prime Minister of Israel (2009, not yet reported). The petition was withdrawn by the petitioners after the state agreed to reopen the terms of the agreements with all the communities. These conditions were applied, partially, in Amendment No 4 to the Law.
82 See, eg, Commission Report (n 59) 18–19.
83 See, eg, protocols of the testimonies before the Commission dated 25 January 2010, 5126–27 (testimony of Mr Doron Ben Shlomi) (in Hebrew), http://elyon1.court.gov.il/heb/hitnatkut_protocol.htm; protocols of the testimonies before the Commission dated 9 June 2009, 888–90 (testimony of Mr David Banjo) and 950–52 (testimony of Mr. Avigdor Yichaky, former Director-General of the Israeli Prime Minister's office) (in Hebrew), http://elyon1.court.gov.il/heb/hitnatkut/doc/protocol_09_06_09.pdf; Ido Efrati, ‘Seven Years On, Gush Katif Remains an Unsettled Question’, Ha'aretz, 15 August 2012.
84 See ‘The Disengagement Plan from Gaza and Northern Samaria Settlements: Cost Estimate’, Center of Research and Information of the Israeli Parliament (the Knesset), 31 January 2010 (in Hebrew), http://www.knesset.gov.il/mmm/data/pdf/m02539.pdf; Commission Report (n 59) 10.
85 The first amendment was mainly technical and was designed to interpret obscure concepts in the law. The Implementation of the Disengagement Law (Amendment No 2) 2010 added compensation for business owners and employees. The implementation of the Disengagement Law (Amendment No 3) 2011 provided that compensation for the land component should be increased for private tenants and for personal property damaged by the evacuation process. This amendment also ordered a reduction in taxation for evacuees (especially with regard to tax on the purchase of a replacement residence). The implementation of the Disengagement Law (Amendment No 4) 2011 was as a result of an agreement between the evacuees' leaders and the Israeli government, according to which the state would increase the amount of compensation significantly and the evacuees would announce an end to their claims. This amendment significantly increased the total compensation for houses and agricultural businesses. In addition, this amendment attempted to match the conditions granted to Ganei Tal in its community re-establishment agreement and the conditions given to members of other communities.
86 See Commission Report (n 59) 187.
87 Disengagement Law (n 40) art 1. But cf Tamir, Keren and Bar-Siman-Tov, Yaacov, The Disengagement from the Gaza Strip and Northern Samaria: Evacuation, Compensation and Legitimization (Jerusalem Institute for Israel Studies 2007) xxi.Google Scholar
88 Defining community is not an easy task. A study by George A Hillery Jr in 1995 found 94 different definitions of community in the scientific literature, with little common ground among them: see Hillery (n 6).
89 The Disengagement Law (n 40) art 2 defines an ‘Israeli settlement’ as a settlement that is one of the settlements listed in the security order concerning the Administration of Regional Councils (Gaza Strip) (No 604) 1979 or in the Order Concerning Administration of Regional Councils (Judea and Samaria) (No 783) 1979.
90 Such as a monetary premium for loss of communality.
91 See text to nn 32–36.
92 For example, United States v Miller (n 3) 373.
93 Disengagement Law (n 40) art 46.
94 Gaza Coast Regional Council (n 51) 642.
96 Posing the ‘nature of the property right’ as a supplementary criterion to the duration of domicile criterion may indicate how community members understand their place in the community, as well as the importance of community for them. Therefore, the stronger the property right (eg, ownership) the more it can be seen as evidence of the owner's intention to settle and assimilate in the community. On the other hand, the weaker the property right (eg, rental) the more it can be seen as evidence of the owner's non-assimilation into the community, or at least of the owner's reluctance to be assimilated: see in this regard Ellickson (n 4) 736–37.
97 Disengagement Law (n 40) art 1.
98 Gaza Coast Regional Council (n 51) 535 (emphasis added, translated from Hebrew by the author).
99 See text to nn 82–87.
100 One of the main justifications for granting the government the power to expropriate private property for public use is based on efficiency-related concerns, especially in relation to the familiar collective action problem: see Miceli, Thomas J and Segerson, Kathleen, ‘A Bargaining Model of Holdouts and Takings’ (2007) 9 American Law and Economic Review 160CrossRefGoogle Scholar, 161; Shavell, Steven, Foundations of Economic Analysis of Law (Harvard University Press 2004) 126Google Scholar; Fennell (n 7); Heller, Michael A, ‘The Tragedy of the Anticommons: Property in the Transition from Marx to Markets’ (1998) 111 Harvard Law Review 621CrossRefGoogle Scholar, 639, 673–74; Fennell, Lee Anne, ‘Common Interest Tragedies’ (2004) 98 Northwestern University Law Review 907Google Scholar, 926–29; Merrill, Thomas W, ‘The Economics of Public Use’ (1986) 72 Cornell Law Review 61Google Scholar, 86; Levinson, Daryl J, ‘Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs’ (2000) 67 University of Chicago Law Review 345CrossRefGoogle Scholar, 349.
101 The decision to regard the market value of the property as fulfilling the ‘just compensation’ requirement can be attributed to efficiency considerations on two levels. The first is the assumption that the market is the best arena for determining the price of a property (including the expectations embodied in it, etc). In this regard see Ellickson (n 4) 683. A second level of efficiency might be learned from the US Supreme Court rulings, according to which ‘[b]ecause of serious practical difficulties in assessing the worth an individual places on particular property at a given time, we have recognized the need for a relatively objective working rule’: see United States v 564.54 Acres of Land (n 3) 510–11. This statement regarding the reason for establishing the market value as the measure for compensation can be interpreted in terms of efficiency, according to which market value compensation saves the costs associated with locating subjective losses embodied in the property.
102 For example, Strickley v Highland Boy Gold Mining Co 200 US 527, 531 (1906).
103 For the role of the compensation regime in directing owners' investment policies see, eg, Blume, Lawrence and Rubinfeld, Daniel L, ‘Compensation for Takings: An Economic Analysis’ (1984) 72 California Law Review 569CrossRefGoogle Scholar, 619–20; Blume, Lawrence, Rubinfeld, Daniel L and Shapiro, Perry, ‘The Taking of Land: When Should Compensation Be Paid?’ (1984) 99 Quarterly Journal of Economics 71CrossRefGoogle Scholar; Michelman, Frank I, ‘Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law’ (1967) 80 Harvard Law Review 1165CrossRefGoogle Scholar; Nosal, Ed, ‘The Taking of Land: Market Value Compensation Should be Paid’ (2001) 82 Journal of Public Economics 431.CrossRefGoogle Scholar
104 For example, Blume, Rubinfeld and Shapiro, ibid; Heller, Michael A and Krier, James E, ‘Deterrence and Distribution in the Law of Takings’ (1999) 112 Harvard Law Review 997CrossRefGoogle Scholar, 999; Merrill, Thomas W, ‘Incomplete Compensation for Takings’ (2002) 11 New York University Environmental Law Journal 110Google Scholar, 131–33.
105 Parchomovsky and Siegelman (n 7) 83–84.
108 See Heller, Michael and Hills, Rick, ‘Land Assembly Districts’ (2008) 121 Harvard Law Review 1465, 1492–93Google Scholar.
109 See the Israeli government decision on the implementation of the disengagement plan (n 37).
110 See source at n 107.
111 For example, Tamir, Keren, ‘Compensation and Treatment of the Evacuees as Means for Creating Legitimacy for the Disengagement Policy’ in Bar-Siman-Tov, Yaacov (ed), The Disengagement Plan: An Idea Shattered (Jerusalem Institute for Israel Studies 2009)Google Scholar (in Hebrew) 97, 104.
112 See, eg, the testimony of Ilan Cohen, former Director-General of the Israeli Prime Minister's office, before the Commission, 26 July 2009 (in Hebrew), http://elyon1.court.gov.il/heb/hitnatkut/doc/protocol_26_07_09.pdf.
113 Parchomovsky and Siegelman (n 7) 138.
114 See text to nn 94–96.
115 Parchomovsky and Siegelman (n 7) 141.
116 See, eg, testimony of Ilan Cohen (n 112) 2814; see also the testimony of Eliyahu Escosido, head of the regional council Sorek, before the Commission, 14 July 2009, 1677, 1731 (in Hebrew), http://elyon1.court.gov.il/heb/hitnatkut_protocol.htm.
117 While a proportion of the inefficient results described above may be explained by the Disengagement Law's hasty legislative procedures, the involvement of interest groups or legislative amateurism, I still maintain that the main cause of the inefficiency of the legal arrangement is the lack of a normative infrastructure of the need to compensate for loss of communality, as well as the lack of a comprehensive conceptualisation of community. This argument is based, as stated above, on the understanding that, without a proper conceptualisation of community, of its meaning, as well as of the values embedded in it, there is no normative, or positive, way to compensate for the loss of communality. Conceptualising community, then, defines the need for compensation for its loss, and may also provide a proxy to assess the intensity of this loss.
118 Disengagement Law (n 40) art 1.
119 See Gaza Coast Regional Council (n 51) 536.
120 The question of whether distributive justice should be promoted in expropriations is debatable: see Dagan, Hanoch, ‘Takings and Distributive Justice’ (1999) 85 Virginia Law Review 741CrossRefGoogle Scholar, 785–90 (‘Normative considerations, argue some critics, dictate that promoting the ideals of distributive justice should be exclusively confined to those fields of law that are specifically designed for fostering these ideals, such as tax law, welfare law, or some segments of land use law’). See also Jones, William K, ‘Confiscation: A Rationale of the Law of Takings’ (1995) 24 Hofstra Law Review 1Google Scholar, 11 fn 37; Lewinsohn-Zamir, Daphna, ‘Compensation for Injuries to Land Caused by Planning Authorities: Towards a Comprehensive Theory’ (1996) 46 University of Toronto Law Journal 47CrossRefGoogle Scholar, 54, 59–60; Kaplow, Louis and Shavell, Steven, ‘Why the Legal System is Less Efficient than the Income Tax in Redistributing Income’ (1994) 23 Journal of Legal Studies 667Google Scholar, 667–69.
121 The tendency of disadvantaged communities to suffer as a result of expropriation is known and is a result of, inter alia, expropriating authority incentives as well as the inability of these vulnerable groups in society to effectively ward off the realisation of expropriation: see dissenting opinion of Judge Thomas in Kelo (n 3) (‘Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities”, United States v Carolene Products Co, 304 US 144, 152 n 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects’). I argue that this distinction between communities according to their strength should not be limited to examination of public use but also be implemented in the compensation regime.
122 See the testimony of Eliyahu Escosido (n 116) 1705–06 (‘First of all, the only community that was left intact and did not fall apart was Ganei Tal. This is a fact. It may be because it was a strong community before the expropriation, but also, so I think, it was because the agreement about its re-establishment was closed in advance’ – translated by the author).
123 Testimony of Advocate Yitzchak Meron, who represented some of the evacuees, in testimony before the Commission of Inquiry examining the Disengagement Plan and its Results, 27 July 2009, 3122 (in Hebrew), http://www.google.co.il/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&ved=0CEwQFjAH&url=http%3A%2F%2Felyon1.court.gov.il%2Fheb%2Fhitnatkut%2Fdoc%2F2009-07-27.doc&ei=wiZ1UN7EAoKm0QXmz4CABw&usg=AFQjCNEcBxmJv071fU6vj50_x9J2uaFd3A&sig2=hczNcU6kYJ_0Yu1f5w5FVw (last visited 30 December 2012) (‘Ganei Tal, speaking of something disproportionate, received more than other communities’).
124 Commission Report (n 59) 11–12.
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