Friday, October 7, 2005

Responding to Kelo: recent papers of interest

Chris Serkin of Brooklyn and Jim Krier of Michigan have a new paper that suggests varying compensation rather than injunctive relief where  governments engage in "public ruses" (limited, indirect public benefit) and "naked transfers"(no public benefit).Public Ruses  From the abstract,

the Essay proposes valuing property taken for a public ruse using the government's own economic assumptions about this effect of the condemn-and-retransfer scheme, thus increasing compensation for the property owner and also increasing the government's incentive to make realistic economic predictions. For naked transfers, the Essay proposes gain-based compensation in order to put the government to the test that the condemnation will actually create some surplus public benefit. Ultimately, liability rule protection provides a better solution than property rule protection for condemn-and-retransfer cases.

Bernard Bell of Rutgers has a paper analyzing the Commerce Clause, the 14th Amendment Enforcement Clause, and the Spending Power as bases for Congressional legislation limiting the use of eminent domain by state and local governments. Legislatively Revising Kelo   The paper suggests that current proposals are not within Congress' powers, but state and local exercise of eminent domain could be limited through better tailored proposals.

Cases, Constitutional Law, Governance/Management, Land Use, Law, US | Permalink

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