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XIV. Preferential Options for Markets

We cannot reconcile the legal contradictions discussed in this paper. Some are presently legal inconsistencies in judicial interpretations arising from different case outcomes. Neither are such contradictions reconcilable by property valuation standards or the application of conventionally accepted valuation methodologies. Property valuation is a tool. Its application is subject to legal and professional rules established for each situation. Pricing telecommunications rights-of-way is a public policy matter as much as it is a matter for the property valuation professions. Continuing to thrash public policy conflicts out in valuation contests, anachronistic condemnation proceedings, arbitrations, or courts of equity fails to reconcile the policies at issue with 5th Amendment provisions. Legislation is an option. But as economist Robert D. Cooter, past-president of the Law and Economics Association, states, whatever policy prevails there should be a preferential option for markets over adjudications or transactions under the threat of condemnation (2001, pp. 284-285).

Whereas voluntary exchange causes mutual gain, a taking causes unilateral gain…voluntary transactions move resources from lower-to higher-valued uses, as required for efficiency, whereas involuntary transactions can move resources in the opposite direction…Channeling transactions into voluntary exchange requires protecting the owner’s rights, not merely protecting the owner’s interests. For example, most transactions must occur through markets, not takings.

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