Ellickson on Federalism, Kelo, and Epstein

Robert C. Ellickson (Yale) has posted Federalism and Kelo: A Question for Richard Epstein on SSRN.  Here's the abstract:

The irrepressible Richard Epstein has been one of the most provocative and wide-ranging of contemporary legal scholars. According to Epstein’s own account, he started out as a natural rights libertarian, but then morphed slightly into a utilitarian. Other important strands of conservative thought have not commanded his consistent allegiance. Epstein has never shown any affinity, for example, to Burkean traditionalism. Moreover, Epstein’s interest in the structural principle of federalism, which favors the centralization of power where feasible, has run hot and cold. For example, he has sharply criticized the Supreme Court’s Kelo decision that declined to rule that a locality’s misuse of the power of eminent domain violated the federal Public Use Clause. This essay criticizes the merits of the redevelopment project at issue in Kelo, but also argues, on federalist principles, that the Supreme Court of the United States was correct in that instance to decide that it should not be on the front lines of the battle against eminent domain abuse.

Ben Barros

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