Friday, September 25, 2015

Hoops on a German Perspective on Kelo

HoopsBjörn Hoops (Groningen) has posted More Safeguards Instead of a Ban of Economic Development Takings: The Kelo Case from a German Perspective (Book Chapter) on SSRN.  Here's the abstract:

The public response to the Kelo judgment of the US Supreme Court in the United States was mostly withering. It was apprehended that the uncertain promise of only slight economic benefits could henceforth justify a taking (of a home in particular) and that already disadvantaged people would be particularly prone to such takings. The call for a ban of takings for the purpose of economic development was crowned with some success. In an overwhelming number of States, either the State legislature or the State Supreme Court has banned economic development takings.

In this contribution I argue that a ban of economic development takings is not inevitable. The US Supreme Court and the State legislatures should instead seek to install judicial, procedural and substantive safeguards to avoid undesirable takings. The public good requirement, enshrined in Art. 14(3) of the German Basic Law (Grundgesetz; GG), provides a variety of instruments for that purpose. Relying upon this constitutional provision, the German Federal Constitutional Court (Bundesverfassungsgericht) has introduced five effective safeguards in German law. First, it requires Parliament to define the purposes of the taking (expropriation) in much detail. Secondly, the taking is subject to two fully reviewed proportionality tests. Thirdly, in balancing the involved interests, authorities and courts must accord additional weight to residential property that is envisaged to be taken. Fourthly, the competent authority is obliged to take measures that ensure that the private transferee actually implements the economic development project on the expropriated land. Fifthly, should the transferee fail to implement the project, the original owner must have the right to reacquire the property. The comparison with Art. 14(3) GG shows that these instruments are lacking in the jurisprudence of the US Supreme Court and Connecticut State law.

I argue that if Connecticut (or another US state) adopted these safeguards or other instruments with similar characteristics from other US states, the goals of the recent bans would be achieved while economic development takings would remain a policy option.

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