Monday, May 22, 2006
A while ago, Jeff Stake at Indiana University took an informal survey asking property profs three questions about Kelo. Twenty-five people responded. Here are the questions and the results:
I would like you to cast yourself back to a point in time before Kelo was decided. Imagine that you had been asked the following questions, and please give the answers you would have given then, before the case was decided.
1) In Kelo, will the home owners win? "yes" or "no" or "I do not know".
2/25 thought the home owners would win. 23/25 thought the homeowners would lose.
2) How many votes out of the nine will the Kelo home owners get?
2/25 thought the owners would get 5 votes.
5/25 thought the owners would get 4 votes.
14/25 thought the owners would get 3 votes.
2/25 thought the owners would get 2 votes.
0/25 thought the owners would get 1 vote.
2/25 thought the owners would get no votes.
3) Will O'Connor vote for the home owners in Kelo? "yes" or "no" or "I do not know".
2/25 thought that O'Connor would vote for the homeowners
2/25 answered "I do not know"
21/25 thought that O'Connor would vote against the homeowners
As Jeff observed in an e-mail circulating the results:
So, only 8% of the respondants were surprised by the result in Kelo and very few of us were greatly surprised by the split. However, almost all of us were surprised by O'Connor's position. But our surprise should not be a surprise given her opinion in Midkiff. In all of the accolades given her as she retired, I heard no one comment that she seemed to have changed her thinking between Midkiff and Kelo.
The larger message, it seems to me, is that the law did not change much with the Kelo decision. If we are representative of experts, most experts would have predicted the result and even the approximate size and members of the majority. Most of us would have correctly predicted the votes of all but O'Connor. If there was any change signaled by Kelo, it was a change in *favor* of landowners. Yet, the press continues to treat the case as a change in the other direction, a tribute to the spinmeisters.
As I discuss in this essay, I couldn't agree more that Kelo didn't change the law. Of course, it has changed the political landscape on eminent domain, which in my view is a good thing.
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