Thursday, March 9, 2006
Julia D. Mahoney (University of Virginia School of Law) has posted Kelo's Legacy: Eminent Domain and the Future of Property Rights in the BEPress Legal Repository. Here's the abstract:
Judging from the furious public response, one might imagine that Kelo v. New London, which upheld the condemnation of homes for mixed-use redevelopment, represented the abdication of judicial oversight of legislative and administrative decisions to condemn property for ostensible "public use". Yet, if anything, the opposite is true. The Court's leading precedents prior to Kelo mandated near total judicial deference to condemnation decisions. By contrast, the majority opinion in Kelo implied, and the one concurring opinion -- written by a member of the majority--underscored, that the "public use" limitation constitutes a real check on exercises of government power. Increased judicial oversight could yield benefits. Even though courts may not be superior--or even equal to-- legislatures and agencies in their capacity to grapple with the complex moral and economic issues involved in eminent domain, the fact that courts may veto condemnations can serve as a powerful check on undesirable behavior.
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