Monday, November 21, 2005
A few weeks ago, I posted on some of Tom Merrill's remarks at the GELPI Takings Conference, where he described two frameworks for looking at issues like public use: the utilitarian frame and the moral rights frame. The utilitarian frame is concerned with promoting the common good, and as a result would favor a broad reading of "public use". The moral rights frame, in contrast, would be more concerned with a property owner's interest in maintaining possession of property, and as a result would favor a narrow reading of "public use".
I covered Kelo last week in my Property Theory seminar. In a reaction paper discussing the case, one of my students described the majority opinion as Vulcan, imagining the following conversation between Kirk and Spock:
Kirk: We can't just kick people out of their homes!
Spock: Captain, your concern about a few property owners is irrational; this taking is clearly for the greater good.
While Merrill's categories might have more academic appeal, I think that the Spock/Kirk distinction is a lot more fun. Plus, there is the somewhat unexpected result that Justice Stevens is playing the role of the arch-rational Spock, while Justice Thomas is playing the role of the emotional Kirk.
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