Wednesday, October 5, 2011

Maybe they've always been wrong

In the post just below this one, Adam MacLeod wrote:

And those few protections that the law once extended to property owners have all but disappeared. For example, the Supreme Court in Kelo re-wrote the Takings Clause to allow takings for a public purpose.

It may well be the case that the Kelo Court's interpretation of the Takings Clause is improper. But I want to clarify a minor point: there's nothing new about this. As early as 1954, the Court allowed governments to bulldoze neighborhoods to support redevelopment by private parties. See Berman v. Parker, 348 U.S. 26 (1954). And in 1984, the Court allowed most of Hawaii's land to be redistributed to individual homeowners, based on the "public purpose" this. See Hawaiian Housing Authority v. Midkiff, 467 U.S. 229 (1984).

I think you can credibly argue that the Court doesn't protect property enough. But the Court has felt this way for a long, long time.

Michael Lewyn

http://lawprofessors.typepad.com/land_use/2011/10/maybe-theyve-always-been-wrong-.html

| Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef015435ea1143970c

Listed below are links to weblogs that reference Maybe they've always been wrong :

Comments

Kelo was indeed a huge cultural marker on the property rights question; Michael is also right that the legal precedent made it unsurprising. See Ben Barros's article "Nothing Errant About It"-- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=902926

Posted by: Matt Festa | Oct 5, 2011 9:29:55 AM

Post a comment