March 14, 2006
Kelo and Its Aftermath
Last June the United States Supreme Court handed down its opinion in Kelo v. City of New London. The Court held that the taking of private property for the purpose of turning that property over to a another private party as part of a governmental economic development scheme was within the allowable scope of the taking power.
The decision was a close one, 5-4, and there have been interesting developments since. First, Justice Stevens (who voted in favor of allowing the taking) has called the decision "unwise" and said that if he had been a legislator rather than a federal judge, he would have been opposed. He has also indicated that he looks to the states to refine the scope of taking private property for economic development purposes. Second, many states and Congress, apparently responding to public pressure, have expressed outrage at the decision. Texas, Alabama, and Delaware have passed legislation by large, bipartisan majorities severely constraining the ability of governmental authorities to take private property so as to transfer it to private developers. 36 other states have explored restrictions, and the Congress has passed a resolution opposing the power approved in Kelo. The Illinois General Assembly, usually a sensible legislative body -- no matter how fiery their rhetoric might be, has recently considered a restriction on the taking power.
I'm a little bit surprised by this widespread reaction in the states. I have no idea -- nor to my knowledge does anyone else -- how often the sort of taking allowed in Kelo goes on. For all I know, it is a very rare occurrence. Indeed, I am not aware of any empirical evidence at all on the frequency and scope of governmental taking, whether like that in Kelo or of a more traditional variety.
What is of interest to me is why there was this widespread reaction against the example of taking approved in Kelo. Most of the law professors whom I know to be students of property and of taking predicted that the government would win in Kelo. Most legislators and the vast majority of citizens pay relatively little attention to what the U.S. Supreme Court does. Why did this opinion strike such a resonant chord?
I'm also looking forward to what will no doubt be a torrent of academic commentary on the Kelo decision. I'm aware of, although I haven't yet read, articles by Ilya Somin and Nicole Garnett, and of forthcoming pieces by Ben Depoorter and Abraham Bell and Gideon Parchomovsky. I'd be thrilled to learn of other pieces on Kelo.
March 14, 2006 | Permalink
TrackBack URL for this entry:
Listed below are links to weblogs that reference Kelo and Its Aftermath:
Dana Berliner of the Institute for Justice has compiled empirical information on eminent domain actions. She found more than 10,000 cases of filed or threatened eminent domain takings between 1998 and 2002. Of course, she's not an independent academic. Also, as Vicki Been pointed out at the AALS in January, even if that number is correct, it's difficult to assess whether it's high, low or just right. We really don't know how governments are using eminent domain.
I have an article coming out about Kelo and its aftermath, entitled "Why Kelo is Not Good News for Local Planners and Developers." I wrote it for a conference on municipal development held last month at Georgia State. It will be published later this year in the Georgia State Law Review. In the meantime, a working-paper version is available on SSRN.
With best regards,
Posted by: Dan Cole | Mar 14, 2006 5:59:32 AM
My take on Kelo is that people are threatened by the combination of governmental and corporate power. The obvious use of a constitutional device and exercise of governmental power on behalf of corporate interest to take away one of the most fundamental rights probably hit a nerve. Without this obviousness, I doubt the case would have attracted so much interest.
Posted by: Robert Rhee | Mar 19, 2006 6:42:11 AM
I also tend to think the central planning/utilitarian aspect of the case was what attracted so much attention. That said, Kelo seems to have motivated governments all over to try their hand at getting the high score in SimCity. Eminent domain has even hit Champaign now (see the last letter you received from the water company).
Great blog by the way.
Posted by: Josh | Mar 31, 2006 10:46:45 PM