The Volokh Conspiracy

In the aftermath of the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, which ruled that state and local governments could condemn property for transfer to private parties for “economic development,” 44 states passed eminent domain reform laws intended to curtail abusive condemnations. Many of the new laws only pretended to curb the use of eminent domain without actually doing so. But Alabama was one of the exceptions, passing one of the nation’s better post-Kelo reforms. Unfortunately, as John Ross of Reason explains, the Alabama state legislature has now largely reversed its post-Kelo reform law, opening the door for condemnations that benefit powerful private interests at the expense of the poor and politically weak:

This month, Alabama Governor Robert Bentley signed into law a bill that allows local officials to condemn private property and turn it over to private developers.

Alabama’s statutes had contained some of the best protections in the nation for property owners; officials couldn’t seize property for private development unless it was a true threat to human health and safety.

Welcome back to the bad old days.

Advertised as a tool to attract industry to Alabama, the new law (the Major 21st Century Manufacturing Zone Act) expands tax subsidies for companies that open a manufacturing facility of at least 250 acres. It also allows municipal officials to seize property for “private uses and purposes imbued with a public interest” like auto factories, biomedical facilities, and pharmaceutical plants.

Officials can now condemn property they deem “blighted,” which, since the statutory definition of the term is so subjective, could be nearly any property.

As I discuss in this article, such “economic development” takings not only often victimize the politically weak for the benefit of powerful private interests, but also regularly fail to actually produce the development that supposedly justified the condemnation in the first place. That’s exactly what happened in Kelo itself, where nothing has been built on the condemned property, even eight years after the Supreme Court’s decision in the case.

Due in considerable part to widespread political ignorance (most voters lack the time and expertise needed to tell the difference between effective reform laws and purely symbolic ones), state legislators often were able to pass off cosmetic reform laws as genuine solutions to the problem eminent domain abuse. Recent events in Alabama highlight the risk that even strong post-Kelo reform laws can be undermined as the public understandably shifts its attention to new issues.

This Thursday at 6:30 PM, I will be speaking on property rights and eminent domain reform in Virginia at the Old Dominion Boat Club in Alexandria. I will be joined by Virginia Attorney General Ken Cuccinelli, or perhaps it is more correct to say that I will be joining the AG. The event is open to the public.

I expect that much of the discussion will focus on Question 1, the eminent domain reform constitutional amendment that Virginians will vote on this November. Although Question 1 is far from perfect, I believe it is an improvement over Virginia’s present constitution. I defended Question 1 here and here.

Various people have asked me what I think of Virginia Question 1, the eminent domain reform referendum question that will be on the ballot in November. Question 1 is one of many eminent domain reform referendum questions developed as part of the political backlash against the Supreme Court’s decision in Kelo v. City of New London (2005), which ruled that the Constitution allows government to take property from one private owner to another on the grounds that doing so might promote “economic development.”

Virginia is one of 44 states that have enacted eminent domain reform legislation since Kelo. The most recent is Mississippi, where voters passed Measure 31 last year. Restrictions on eminent domain were long overdue because economic development and blight takings often victimize property owners for the benefit of powerful interest groups, and actually destroy more economic value than they create.

My bottom-line take on Question 1 is that it is a clear improvement over the status quo, but still has some flaws. As I discussed here, Virginia’s present Constitution is one of the worst in the country when it comes to property rights. Article 1, Section 11 allows government to condemn property for virtually any reason authorized by the legislature. If the voters pass Question 1, that will change.

Unlike many states that have enacted post-Kelo “reform” legislation that doesn’t really constrain eminent domain, Virginia’s state legislature has already enacted a fairly strong reform law through the legislative process, which I briefly described in my article surveying post-Kelo reform in all the states. But a constitutional amendment constraining eminent domain is still valuable because statutory reforms could easily be eroded over time as public attention shifts to other issues, and powerful interest groups lobby the legislature to allow takings that benefit them.

Unfortunately, there are some potential flaws in the proposed Amendment’s wording that make it less effective than it could be. Question 1 would change the state Constitution to forbid takings “the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property.” The amendment also has some valuable provisions forbidding the condemnation of more property than is necessary for the “public use” justifying the taking, increasing compensation for owners of condemned property, and specifying that the right to private property is “fundamental” (which usually triggers a higher degree of judicial protection when the right is threatened).

This is a clear improvement over the status quo. But it leaves the door open for “blight” condemnations enacted under a broad definition of “blight.” In many states, post-Kelo reform has been undermined by blight condemnation laws that define blight so broadly that almost any area can be declared blighted and condemned. It is not clear whether Question 1′s ban on takings takings for “private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development” covers blight condemnations adopted under an extremely broad definition of “blight.” If the legislature ever broadens Virginia’s relatively narrow post-Kelo blight law, the courts will have to decide whether that is compatible with Question 1. I think there would be plausible arguments on both sides.

Moreover, even takings enacted under a narrow definition of “blight” are often problematic, because they tend to victimize poor and politically weak communities for the benefit of influential interest groups. There are better ways to improve blighted areas than condemning the neighborhood in order to save it. Indeed, stronger protection for property rights might well promote economic development in poor areas rather than hinder it.

Finally, the fact that Question 1 only bans takings whose “primary” use is “private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development,” could potentially allow local governments to slip such takings in through the back door by arguing that economic development is tied to some other goal. Much may depend on how the courts interpret the meaning of “primary.”

Like most other post-Kelo referendum measures, Question 1 will probably pass easily. The vast majority of the public hates the Kelo decision and economic development takings. The only post-Kelo referendum initiatives that have ever failed were three that tied bans on economic development takings to other, less popular proposals, such as abolishing rent control. By contrast, over a dozen relatively “clean” post-Kelo reform initiatives have passed easily.

Question 1 will probably pass as well. Because it is a clear improvement over the status quo, I’m going to vote for it myself. The best should not be the enemy of the good. But Virginians should not imagine that passing this amendment will create an iron-clad safeguard against abusive takings in this state.

Richmond Times-Dispatch columnist A. Barton Hinkle recently published this piece on a case of eminent domain abuse in Virginia:

As a general rule, progressives do not get worked up about property rights the way conservatives do. This is a mistake — as a case out of Norfolk shows.

To the progressive eye, property is bound up with materialism and wealth and greed and other yucky things. But property is also bound up with some things progressives hold dear. And even progressives were outraged when, in its 2005 Kelo decision, the Supreme Court said governments could take property from the poor and give to the rich.

That is what has been happening in Norfolk, where the city’s Redevelopment and Housing Authority has been using eminent domain to take dozens of pieces of private property for resale to a foundation run by Old Dominion University. The housing authority has been collecting commissions on the sales; the foundation has then been turning the property over to developers for their use as part of a swanky new University Village.

Among those properties is the building that houses Central Radio, whose story was detailed here back in May 2010. Some years ago, Norfolk offered to buy the property for a lowball price of $700,000 (more than a decade before, a developer had offered more than $1 million). Central Radio’s president, Bob Wilson, turned the city down. So the city slapped a spurious designation of “blighted” on the property and condemned it.

Norfolk couldn’t get away with that today. Virginia’s General Assembly has sharply curtailed such abusive use of eminent domain, precisely because of cases such as this one and others like it....

But the legislature’s changes to eminent-domain law included a grandfather clause, allowing Norfolk to proceed. Wilson is naturally cheesed off. He has vented his frustration by putting up on the side of his building a protest banner. (“50 years on this street,” it reads. “78 years in Norfolk. 100 workers. Threatened by eminent domain.” The words “eminent domain abuse” are surrounded by a red circle with a slash through it.)

But Norfolk officials apparently feel it is not enough to take away Wilson’s property. They also are trying to take away his right to free speech, by insisting that his banner violates the city’s sign ordinance....

Hinkle correctly notes that this is just one of several recent cases around the country in which local governments and influential developers not only engaged in dubious takings, but also tried to prevent property owners from speaking out against them. As he also points out, Virginia is one of a minority of states that has enacted strong post-Kelo eminent domain reform that will constrain abusive condemnations in the future. But as I documented in this article, in many other states reform still has a long way to go. Even in Virginia, eminent domain reform will not be fully secure in the long run until it has been incorporated into the state constitution, as well as statutory law.

Because blight and “economic development” takings tend to victimize the poor and politically weak for the benefit of the wealthy and politically powerful, they have generated widespread opposition on the left as well as the right. We will need greater cross-ideological cooperation on this issue to fully address the problem.

The Fordham Urban Law Journal City Square website has posted a debate between NYU Professor Roderick Hills and myself on the the New York Court of Appeals controversial decisions upholding “blight” condemnations in the Atlantic Yards and Columbia University cases. In my 2011 symposium article “Let there Be Blight,” I argued that these takings violated both the New York state and federal constitutions. I especially emphasized the incompability between the court’s decision defining blight so broadly that virtually any area could qualify with the New York state constitutional provision limiting blight condemnations to “substandard and unsanitary areas.” Hills has written a critique of my analysis. My reply is available here.

Hills is one of the leading property and federalism scholars out there, and I always learn from our exchanges. As I explain near the end of my reply, in this case there may be more areas of agreement between us than initially meet the eye.

Today, I published an op ed in the Daily Caller on the passage of Mississippi referendum Measure 31, an important eminent domain reform law. Here is an excerpt:

The Supreme Court’s 2005 decision in Kelo v. City of New London generated a record political backlash. Kelo upheld the condemnation of private property for transfer to other private owners in order to promote “economic development.” The case inspired widespread outrage. Polls show that over 80% of the public opposes economic development takings. As a result, 44 states have enacted eminent domain reform laws that restrict the condemnation of property for the benefit of private interests.

The most recent state to react to Kelo is Mississippi. On Tuesday, Mississippi voters adopted Measure 31 by a decisive 73% to 27% margin. The new law will make taking property for economic development unprofitable by forbidding most transfers of condemned land to a private party for 10 years after condemnation. The measure is a major victory for both property owners and the state’s economy.

Tomorrow, Mississippi voters will decide the fate of Measure 31, an important eminent domain reform proposal. Mississippi is one of only seven states that has not enacted any eminent domain reforms at all since the Supreme Court’s decision controversial decision upholding “economic development” takings in Kelo v. City of New London.

Measure 31 would effectively ban economic development takings by forbidding most condemnations that transfer land to private parties during the first ten years after condemnation. Economic development condemnations are often used by powerful interest groups to acquire land for themselves at the expense of the poor and politically weak. In Mississippi, recent condemnations have transferred land to big auto firms such as Nissan and Toyota. Mississippi Governor Haley Barbour and others claim that these takings are needed to promote economic growth. In reality, economic development condemnations often destroy far more economic value than they create, by wiping out homes, small businesses and schools.

Many of the post-Kelo reform laws enacted in other states fail to impose genuinely effective restrictions on economic development condemnations. Legislators have found various ways to produce bills that have major loopholes. The most common tactic is that of allowing economic development condemnations to continue under the guise of alleviating “blight.” Many states define “blight” so broadly that almost any neighborhood qualifies and is therefore subject to condemnation. Such unlikely areas as downtown Las Vegas and New York’s Times Square have been declared “blighted” for the purpose of justifying condemnations. The New York Court of Appeals recently upheld blight takings justified by a combination of virtually limitless definitions of blight and biased studies conducted by a firm with a severe conflict of interest. Fortunately, Measure 31 avoids this pitfall by forbidding blight takings except in cases where the land in question is severely dilapidated or poses a direct threat to public health and safety.

Politicians enact ineffective reform laws in part because it is difficult for voters to tell the difference between a real “anti-Kelo” bill and one just for show. A 2007 Saint Index survey found that only about 13% of Americans knew whether or not their state had passed an effective post-Kelo reform law. As I explain in this article, referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians. Measure 31 was submitted by the Mississippi Farm Bureau Federation (small farmers are often victims of eminent domain in the state). The vast majority of post-Kelo referenda adopted by voters impose tough restrictions on takings.

Unlike state legislators, the property rights activists who wrote most of the citizen-initiated anti-Kelo ballot initiatives had no need to appease powerful pro-condemnation interest groups in order to improve their reelection chances.

Measure 31 isn’t perfect. It still leaves the door open to abusive takings in genuinely blighted areas, and possibly to dubious condemnations on behalf of common carriers and public utilities. But it’s still a huge improvement over the status quo in Mississippi, which includes both an extremely broad definition of blight and a statute authorizing large-scale economic development takings.

On Monday, October 10, I will be speaking at the University of Mississippi School of Law on a Mississippi eminent domain reform referendum initiative, Measure 31 (which is on the ballot this November). The talk is sponsored by the University of Mississippi Federalist Society, and will begun at 12:30 PM in Room 2094.

Mississippi is one of only a handful of states that have not enacted any eminent domain reforms at all since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, which ruled that the Constitution allows government to forcibly transfer private property to other private entities for purposes of “economic development.” Forty-three other states have enacted new laws, though many of them are likely to be ineffective.

Mississippi has a considerable history of dubious takings. Republican Governor Haley Barbour is a prominent advocate of massive condemnations that transfer property to big business interests such as auto manufacturers. In 2009, he vetoed a legislative eminent domain reform billIn this article, I explained why the kinds of economic development takings Barbour supports generally create more economic harm than benefit.

Although Measure 31 is not perfect, it would be a major improvement over current Mississippi law, which allows a wide range of economic development takings for big development projects, and also defines “blight” so broadly that virtually any area can be declared blighted and condemned. The initiative precludes economic development takings almost entirely by forbidding the transfer of condemned property to private interests for at least 10 years after the taking. It does create an exemption to this rule for property that is unfit for human habitation or poses a “direct threat” to public health or safety. But that is much more restrictive than the state’s current blight law. Broad definitions of blight that license abusive takings are a serious problem in many other states, including New York.

I will have more to say about Measure 31 at my presentation, and probably in a follow-up post that I will write after the talk for readers interested in the issue who are unable to attend.

Reason TV has a short but interesting video about the urban renewal era of the 1950s and 60s, when hundreds of thousands of people – mostly poor minorities – were forcibly displaced from their homes by eminent domain. As the video notes, often the land was transferred to politically connected developers and other influential interest groups.

I discuss this period in greater detail in my recent testimony on the civil rights implications of eminent domain abuse before the US Commission on Civil Rights. As I point out there, today’s abuses are not on as large a scale as those of fifty years ago. But it is still common for “blight” condemnations to be used against the minority poor and other politically weak groups in order to transfer their land to politically powerful groups. And nowhere more so than in New York City, the focus of the Reason video. The recent Columbia University and Atlantic Yards cases are particularly egregious examples, which I described in this article.

Urban renewal and blight takings are also a good example of how, contrary to stereotype, protecting property rights often benefits the poor more than the wealthy. Indeed, government is far more likely to threaten the rights of the former, because they usually have less political influence with which to protect themselves.

On August 12, I testified at a US Commission on Civil Rights hearing on the “Civil Rights Implications of Eminent Domain Abuse.” The video of the oral testimony is available here. I have now made my more detailed written testimony available online here. Here is the Introduction, which includes a summary of the rest [footnotes omitted]:

I am grateful for the opportunity to address the important issue of the impact of eminent domain on racial and ethnic minorities. I would like to thank Chairman Castro, Vice Chair Thernstrom, and the other commissioners for their interest in this vital question. As President Barack Obama aptly put it, “[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.” The protection of property rights was one of the main purposes for which the Constitution was originally adopted. Unfortunately, the Supreme Court has often relegated property rights to second class status, giving them far less protection than that accorded to other constitutional rights. And state and local governments have often violated those rights when it seemed politically advantageous to do so.

Americans of all racial and ethnic backgrounds have suffered from government violations of constitutional property rights. But minority groups have often been disproportionately victimized, sometimes out of racial prejudice and at other times because of their relative political weakness. Minorities are especially likely to be victimized by private to private condemnations that test the limits of the Public Use Clause of the Fifth Amendment, which requires that property can only be condemned for a “public use.” These include takings allegedly justified by the need to alleviate “blight” and promote “economic development.”

Part I of my testimony briefly surveys the constitutional law of eminent domain and public use. It documents the extent to which the Supreme Court has given condemning authorities a near-blank check to take property for whatever purposes they want.

Part II examines the impact of blight and economic development condemnations on minority groups. Both types of takings often victimize racial and ethnic minorities. Although such condemnations are defended on the grounds that they are needed to promote economic growth in poor communities, they often destroy far more wealth than they create. Economic development can be better promoted by other, less destructive means. African-Americans and Hispanics are targeted more often than other groups in large part because of their relative political weakness and comparatively high poverty rates. While, certainly, not all members of these groups are poor or politically weak, a disproportionately large number are.

Finally, in Part III I explain why the problem of abusive takings persists despite the wave of state reform laws adopted in response to the Supreme Court’s unpopular decision upholding economic development takings in Kelo v. City of New London. Many of the new laws actually impose little or no constraint on economic development takings. Even those that do impose meaningful restrictions usually still allow private-to-private condemnations in the types of “blighted” areas where many poor minorities live. Although post-Kelo reforms are a step in the right direction, much remains to be done before the property rights of poor minorities are anywhere close to fully protected.

UPDATE: Various commenters ask why this should be considered a “civil rights” issue and why it should matter whether there is a disproportionate impact on minorities. My answer is that property rights are in fact a major part of the “civil rights” that the framers and ratifiers of the Fourteenth Amendment sought to protect. And they particularly wanted to ensure their protection for African-Americans, whose property rights were at the time threatened by southern state governments. The disproportionate impact on minorities also matters because it is in part the result of past and (to a lesser extent) present racism, as is also the political weakness that makes it easier for even unbiased local governments to target the poor minority neighborhoods. It is not my view that the disproportionate impact on minorities is the only or even the most important aspect of this issue. But it’s certainly worth considering, and well within the mandate of the Commission on Civil Rights.

My new article, “Let There Be Blight: Blight Condemnations in New York after Goldstein and Kaur” is now available on SSRN. It critiques the New York Court of Appeals’ recent controversial blight takings decisions in the Atlantic Yards and Columbia University eminent domain cases. It was part of a Fordham Urban Law Journal symposium on Eminent Domain in New York. Here is the abstract:

The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.

Part I briefly describes the background of the two cases. Goldstein arose as a result of an effort by influential developer Bruce Ratner to acquire land in Brooklyn for his Atlantic Yards development project, which includes a stadium for the New Jersey Nets basketball franchise and mostly market rate and high-income housing. Kaur resulted from Columbia University’s attempts to expand into the Manhattanville neighborhood of West Harlem. When some of the landowners refused to sell, Ratner and the University successfully lobbied the government to declare the land they sought to be blighted and use eminent domain to transfer it to them.

Part II addresses the issue of blight condemnation. Goldstein and Kaur both applied an extraordinarily broad definition of “blight” that included any area where there is “economic underdevelopment” or “stagnation.” In addition, the court opened the door for future abuses in three other, more novel, respects. First, it chose to uphold the condemnations despite evidence suggesting that the studies the government relied on to prove the presence of “blight” were deliberately rigged to produce a predetermined result. Second, it dismissed as unimportant the fact that the firm which conducted the blight studies had previously been on the payroll of the private parties that stood to benefit from the blight condemnations. Finally, the court refused to give any weight to extensive evidence indicating that Ratner and Columbia had themselves created or allowed to develop most of the “blight” used to justify the condemnations. The court’s approach opens the door to future abusive condemnations and violates the text and original meaning of the New York State Constitution.

Part III discusses Goldstein and Kaur’s treatment of the federal constitutional standard for “pretextual” takings. In Kelo and earlier decisions, federal courts made clear that “pretextual” takings remain unconstitutional despite the Supreme Court’s otherwise highly deferential posture on “public use.” Unfortunately, the Supreme Court has been extremely unclear as to what constitutes a pretextual taking. As a result, courts have taken widely differing approaches to the issue. Nevertheless, Kaur and Goldstein are outliers in this area, deferring to the government more than almost any other court that has addressed the question since Kelo. They virtually read the concept of pretext out of existence.

In a potentially important recent decision, Texas Rice Land Partners v. Denbury Green Pipeline the Texas Supreme Court has invalidated the use of eminent domain for a private pipeline to be owned by an oil company. Gideon Kanner has some good commentary on the decision here.

In Texas and many other states, public utilities and other “common carriers” have the power to use eminent domain to acquire land for their operations. In this case, however, Denbury, an oil company, sought to use eminent domain for a pipeline that would only transport carbon dioxide to and from its own facilities, without providing any service to the general public. In theory, the public would have the right to use the pipeline, but in practice no one but Denbury would have any reason to do so. The Texas Supreme Court quite rightly concluded that a “common carrier” taking must actually serve the general public, not just the carrier itself:

To qualify as a common carrier with the power of eminent domain, the pipeline must serve the public.... [E]xtending the power of eminent domain to the taking of property for a private use cannot survive constitutional scrutiny. The Denbury Green pipeline would not serve a public purpose if it were built and maintained only to transport gas belonging to Denbury from one Denbury site to another. As a constitutional matter, we can see no purpose other than a purely private one in such circumstances....

We accordingly hold that to qualify as a common carrier of CO2 under Chapter 111 [of Texas law], a reasonable probability must exist, at or before the time common-carrier status is challenged, that the pipeline will serve the public by transporting gas for customers who will either retain ownership of their gas or sell it to parties other than the carrier.

The case has been remanded for the trial court. In order to prevail there, Denbury would have to prove that its pipeline will transport carbon dioxide for the general public and not just its own use.

Some press commentary suggests that this decision will have a major impact on future pipeline takings in Texas. That may be so. But Texas eminent domain law contains several other loopholes that make it easy for private interest groups to get government to condemn property for their own benefit. As I discuss in this article and here, Texas’ post-Kelo eminent domain reform law includes a very broad definition of “blight” that enables almost any property to be declared blighted and transferred to private parties. Oil companies and others seeking to use eminent domain for private pipelines might be able to get the land they want by having it declared blighted. This might require greater political clout than the direct private exercise of eminent domain under Chapter 111. The oil company in question would have to lobby the local government or redevelopment agency. However, Texas oil companies certainly have plenty of political influence.

UPDATE: I have not been able to find a link to the decision online. It is, however, available on Westlaw and Lexis.

UPDATE #2: I have corrected some minor errors in the initial version of this post. Because I made the corrections within a few minutes of the original posting, I am not going to describe them in detail, since I don’t think there was any time for the mistakes to influence public discourse on the case.

Earlier today, I testified before the US Commission on Civil Rights at a hearing on the “Civil Rights Implications of Eminent Domain Abuse.” The other panelists were Georgetown law professor Peter Byrne, Hilary Shelton of the NAACP, and David Beito, a prominent historian and chair of the Alabama State Advisory Committee to the USSCR. A C-SPAN video of the event is available here.

I have previously written about the negative impact of blight and economic development takings on the minority poor here. I also discuss the issue in my recent article on “Federalism and Property Rights.”, where I point out that the political weakness of the minority poor who are the most common victims of eminent domain weakens the case for leaving property rights issues to the discretion of local political processes.

My recently published article “Federalism and Property Rights” is now available on SSRN. It’s part of the University of Chicago Legal Forum Symposium on Governance and Power. Here is the abstract:

Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.

This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.

Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.

Blogosphere mavens might be interested to learn that this is the first major article I wrote that was inspired by a blog post, specifically this exchange with NYU law professor Rick Hills (who is one of the “leading legal scholars” mentioned in the abstract). Although we continue to disagree on this issue, I’m grateful to Rick for the inspiration, and for his very helpful comments on the paper.

My article “The Judicial Reaction to Kelo” is now available on SSRN. It is the Introduction to the Albany Government Law Review Symposium on Eminent Domain in the United States, which includes contributions by several well-known eminent domain scholars including my colleague Steve Eagle, Amy Lavine, and David Schultz, among others.

Here is the abstract:

Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.

Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.

Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.

This article is a companion piece to my previous work assessing the much better-known political reaction to Kelo.