January 31, 2007
Garnett on Planning as Public Use
Nicole Stelle Garnett (Notre Dame Law School) has posted Planning as Public Use? on SSRN. Here's the abstract:
This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible "private" takings from presumptively valid "public" ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power of eminent domain: First, can public, participatory planning help legitimize so-called "economic-development takings"? Second, was the Court correct to assume that planning will limit pretextual takings, i.e., the taking of private property in the name of economic development but for the true purpose of benefiting a private individual? And third, will careful planning by the government lead to more successful projects?
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