Sunday, April 30, 2006

Burke on Kelo and Sweet Home

Marcilynn A. Burke (University of Houston - Law Center) has posted Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and other Tales from the Supreme Court on SSRN.  Here's the abstract:

This Article traces and analyzes an emerging trend in constitutional and land use law and the rhetoric that embodies it. The Article examines the potential impacts of rhetoric that the Supreme Court's ruling Kelo v. City of New London has fanned into a flame. The rhetoric paints a picture of imbalance, pitting small landowners against inept government officials who are taking private property. And purveyors of this rhetoric contend that activist judges are simply rubber stamping this land grab. A reform movement has emerged to solve the problems that the stories portray. Yet, there is a palpable disconnect between the rhetoric plied in the nation's media and the reality of eminent domain. This Article demonstrates that the rhetoric and suggested reform are best viewed in the context of what has been dubbed the "Constitution in Exile" movement. This movement seeks to restore what it considers the original meaning of many constitutional provisions including "public use." Exposing and challenging that movement, the Article contends that the movement merely seeks particular ideological outcomes that it masquerades as a rigorous interpretative theory.

Ben Barros

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