Wednesday, December 7, 2005
Timothy Sandefur (Pacific Legal Foundation) has posted The “Backlash” So Far: Will Citizens Get Meaningful Eminent Domain Reform? on SSRN. Here's the abstract:
The Supreme Court’s decision in the eminent domain case of Kelo v. New London was greeted with anger and frustration. The public outcry reaction came to be called the “Kelo backlash,” and news reports and editorials declared throughout the fall of 2005 that this backlash was leading to statutory reforms in many state legislatures. Following Justice Stevens’ suggestion in the Kelo opinion that states could provide greater protection for property owners than the federal courts provided, and recognizing that some state courts had imposed stricter limits on eminent domain through the “public use” requirements in state constitutions, activists and legislators in 38 states began working on changing state laws regarding property seizure.
So far, the backlash has produced few results. Largely because most state legislatures have been in recess since shortly after the Kelo decision was announced, only four states have passed legislation regarding eminent domain. Unfortunately, those four provide little protection for property owners. Proposals in other states, including two brought forward in the California Legislature, even appear to have been consciously designed to effect no meaningful change. On the other hand, a bill recently passed by the Pennsylvania House of Representatives and now pending before the state Senate, as well as federal legislation which appears likely to be enacted into law, do include significant limits on eminent domain. These bills give reason to hope that meaningful reform is on the horizon once other state legislatures return from winter recess. But proponents of these measures must resist the pressure to include loopholes and exceptions that have so severely weakened the four new reform laws
In this article, I survey these four new laws, as well as three proposals that were shot down by the legislature of California, to see how they promise far more than they actually deliver. I will also examine bills recently passed by the Pennsylvania Legislature, and by the United States House of Representatives, which, if enacted, would provide genuine protection for property owners. After a brief background on the law of eminent domain after Kelo, and the public reactions to that decision, I explore each bill in sequence. I then conclude with some observations as to the two biggest obstacles faced by those hoping for serious eminent domain reform: the political influence of powerful redevelopment proponents, and the lack of serious philosophical support for opposition to the outcome of Kelo.
There is some discussion of Sandefur's argument at both the Volokh Conspiracy and BizzyBlog, though the comments at the VC suggest that there was some initial misunderstanding of Sandefur's key points, which were first made in a post on Positive Liberty.
Those interested in the subject might also be interested in these other posts: Is Justice Stevens a Vulcan?; A Tale of Two Blight Statutes; Resources on the Legislative Response to Kelo; and my posts on the Berman v. Parker and Hawaii Housing Authority v. Midkiff conference notes.
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