April 22, 2008
Land Assembly Districts
For those interested in the relationship between vulnerable communities and state use of eminent domain, a new article perhaps is of interest:
- Michael Heller & Rick Hills, Land Assembly Districts, 121 Harv. L. Rev. 1465 (2008). Abstract:
Eminent domain for economic development is both attractive and appalling.
States need the power to condemn because so much land in America
is inefficiently fragmented. But public land assembly provokes hostility
because vulnerable communities get bulldozed. Courts offer no help. The
academic literature is a muddle. Is it possible to assemble land without
harming the poor and powerless? Yes. This Article proposes the creation
of Land Assembly Districts, or “LADs.” This new property form solves the
age-old tensions in eminent domain and shows, more generally, how careful
redesign of property rights can enhance both welfare and fairness. The
economic and moral intuition underlying LADs is simple: when the only
justification for assembly is over-fragmentation of land, neighbors should
be able to decide collectively whether their land will be assembled. Our legal
theory solution is equally simple: use property law to retrofit communities
with a condominium-like structure tailored to land assembly. Let’s try
giving those burdened by condemnation a way to share in its benefits and
to veto projects they decide are not worth their while.
NOTE: this article provides a great opportunity, particularly for jr. faculty, for individuals to comment on the article in the Harvard Law Review Forum, the Review's online companion.
UPDATE: Another article on topic that I just ran across is Amanda W. Goodin, Rejecting the Return to Blight in Post-Kelo State Legislation, 82 N.Y.U. L. Rev. 177 (2007).
Another article, slightly older, that takes on some of the same issues is Ilya Somin, Is Post-Kelo Eminent Domain Reform Bad for the Poor?, 101 Nw. U. L. Rev. 1931 (2007). Abstract:
Since the Supreme Court decided Kelo v. City of New London in June 2005, some 35 states have enacted eminent domain reforms laws. In his recent Northwestern University Law Review Colloquy article, which I have been asked to comment on, Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for economic development, but allow the condemnation of land on which poor people live under the guise of alleviating blight. This, he claims, ensures that the reforms enacted in numerous states "privilege . . . the stability of middle-class households relative to the stability of poor households" and "express . . . the view that the interests and needs of poor households are relatively unimportant." I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserve greater attention, but take issue with his argument that post-Kelo reform efforts have systematically treated the poor worse than middle and upper class homeowners.
Most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings or defined blight so broadly that virtually any property can be declared blighted and taken. Several others have enacted reforms that provide no real protection to any property owners because of other types of shortcomings. Only nine states are actually guilty of allowing only the condemnation of blighted areas, narrowly defined. Even these nine flawed reforms are probably better for the poor than no reform at all. Such a law might benefit many poor people who live in non-blighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations, suggesting that they are not much concerned about the expressive harms that worry Professor Dana. Finally, the exclusion of blighted property from the ban on economic development condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor. It could also be the result of other factors, such as voter ignorance about the actual effects of blight condemnations.
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