Is Justice Stevens a Vulcan?

A few weeks ago, I posted on some of Tom Merrill's remarks at the GELPI Takings Conference, where he described two frameworks for looking at issues like public use:  the utilitarian frame and the moral rights frame.  The utilitarian frame is concerned with promoting the common good, and as a result would favor a broad reading of "public use".  The moral rights frame, in contrast, would be more concerned with a property owner's interest in maintaining possession of property, and as a result would favor a narrow reading of "public use".

I covered Kelo last week in my Property Theory seminar.  In a reaction paper discussing the case, one of my students described the majority opinion as Vulcan, imagining the following conversation between Kirk and Spock:

Kirk:  We can't just kick people out of their homes!

Spock:  Captain, your concern about a few property owners is irrational; this taking is clearly for the greater good.

While Merrill's categories might have more academic appeal, I think that the Spock/Kirk distinction is a lot more fun.  Plus, there is the somewhat unexpected result that Justice Stevens is playing the role of the arch-rational Spock, while Justice Thomas is playing the role of the emotional Kirk.

Ben Barros

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