Wednesday, June 23, 2010

Institute for Justice on Kelo at Five Years

The Institute for Justice has published a white paper commenting on the fifth anniversary of the Kelo decision: Five Years After Kelo: The Sweeping Backlash Against One of the Supreme Court’s Most-Despised Decisions.  The IJ, you may remember, was lead counsel for the homeowner plaintiffs in the case.  The paper, of course, expresses IJ's continued opposition to the SCOTUS ruling, but nonetheless seems to strike a cautiously optimistic note regarding eminent domain in the wake of the Kelo backlash.  From the intro:

Less than one week after the decision was handed down, the Institute for Justice launched a national campaign called “Hands Off My Home.”  IJ was determined to focus the outrage over Kelo and turn it into meaningful reform.   In the five years since the decision, there has been an unprecedented backlash against the Kelo ruling in terms of public opinion, citizen activism, legislative changes, state court decisions, and lessons learned from the New London case . . .

There is another paragraph in the conclusion that I find very interesting.  Back when Pfizer moved out of its New London facility, I suggested on the New York Times "Room for Debate" Blog that the failure of the New London plan, and the Kelo backlash generally, might work to discourage planners and local governments from pursuing economic development takings (I called the Pfizer/New London debacle "Exhibit A" in the case against eminent domain for comprehensive redevelopment).  Ilya Somin, who was involved in the case, and has done the definitive research on the problems and loopholes of the post-Kelo state "reform" legislation, agreed that the backlash was significant but thought I might have been too optimistic about the deterrent effect of the backlash.  I agreed that I was in fact expressing an optimistic viewpoint--if I had had to bet money, I probably would have gone with Somin's more realistic prediction.  And I still have absolutely no empirical data at hand regarding the rate of economic development takings since Kelo.  But the IJ's report seems to indicate that there has been at least a slowdown in litigation on the issue:

The results of the Kelo backlash have been striking.  The Institute for Justice used to get continual requests for assistance in fighting eminent domain for private gain.  Now, we receive far fewer.  Of those, many are defeated by activism in the court of public opinion before they ever reach a court of law.  Eminent domain abuse used to be a nationwide epidemic with more than 10,000 instances reported in just one five-year period alone, an epidemic that affected property owners in most states.[20]  Now, it is largely a problem confined to certain reform-resistant states, like New York, that refuse to change their laws or listen to their own citizens.  The Institute is focusing its efforts in litigation and advocacy in those states.

It was exactly that "court of public opinion" effect that I had in mind.  Now of course, a slowdown in litigation requests to IJ doesn't necessarily mean there is less eminent domain out there.  And there are two obvious counterarguments: (1) there are fewer requests to IJ because Kelo essentially declared economic development takings to be legal and constitutional, so there may be fewer disputes over such takings when they happen; (2) in the recession, planners and local governments are less eager for purely economic reasons to do New London-style redevelopment projects.  And just because there might be less interest-group litigation doesn't mean that the issue has faded as a serious legal and policy matter.

Still, it's an interesting take on the political and policy effects of the Kelo backlash five years after the opinion.  Thanks to Brian Erskine for the pointer.

UPDATE: Ilya Somin has his thoughts on Kelo's fifth here

Matt Festa

Caselaw, Economic Development, Eminent Domain, Financial Crisis, Judicial Review, Local Government, Property Rights, Property Theory, Redevelopment, Scholarship, Takings | Permalink

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Matt -

Wow, 5 years! Time does fly. When Justice Breyer visited UGA Law a few years ago I asked him in a public forum if he was surprised by the backlash against Kelo. He said he was, and that the court might have done a better job of explaining its rationale and that it was ratifying long-standing practice. I'm not sure that would have helped - maybe.

I appreciated this post, and I forwarded it to my summer students. I just taught a unit on Georgia land use law with a brief discussion of federal and state takings law. We discussed Kelo and "A to B" takings, so I know they'll read your post with interest.

Hope you're having a great summer.

Posted by: Jamie Baker Roskie | Jun 23, 2010 3:35:36 PM

Thanks Jamie! Since we're on the fairly narrow topic of telling stories about Supreme Court Justices visiting Georgia Law School and taking about Kelo, it just so happens that I have one too!

I'm sure you'll remember that in 2006-07, when I was a rookie VAP at UGA and you were mentoring me in the field, Justice Thomas came to visit. Dan Coenen kindly introduced me to the Justice and mentioned that I was teaching land use. "Land Use!" he exclaimed, turning to me. "What do you think of Kelo? Do you teach it?" He was really interested in how the then-two-year-old decision was being received. I told him that the students seemed to find Kelo to be the most interesting case of the semester, and that they seemed to split fairly evenly on it.

Then in the next hour, addressing Prof. Coenen's con law class, he told the story of how, the day Kelo was decided, his secretary asked him "can they really do that?" He told the story to try and illustrate what he thought the non-lawyer "person on the street" thought of the decision and how it struck many people quite personally, despite the majority's grounding in precedent.

So Justice Thomas took Kelo very seriously, and I thought it was very interesting to hear him discuss it and, perhaps even more impressively, to express his genuine interest in hearing about what law students thought of it.

Posted by: Matt Festa | Jun 24, 2010 9:04:25 PM

Hey Matt -

Sorry to take so long getting back to this. Justice Thomas also mentioned Kelo in a roundtable discussion he had with the faculty last time he visited campus. He also talked about how he talks all the pending cases over carefully with his clerks. He seems to take his teaching, and mentoring, responsibilities seriously.

Posted by: Jamie Baker Roskie | Jul 6, 2010 1:09:56 PM