Archive | Kelo

Upcoming Federalist Society Faculty Conference Presentation on my Next Book – The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain

Next week, on Friday, January 3, between 5 and 6:15 PM, I will be doing a presentation on my next book, tentatively entitled The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain at the Federalist Society’s annual faculty conference. This will be a preview of the book, which will be the first book-length treatment by a legal scholar of Kelo v. City of New London – one of the most controversial decisions in the modern history of the Supreme Court, and the important constitutional property rights issues it raises. The book considers Kelo from the standpoint of both originalist and living constitution theory, and also has the most complete analysis to date of the enormous political reaction that Kelo generated. I have completed a first draft of the book, but will be making revisions over the coming months.

The Federalist Society conference will be held in parallel with the annual AALS conference nearby. I will be presenting as part of a panel focusing on works in progress. If you are coming to the AALS conference and are interested in constitutional theory, property rights issues, or eminent domain, I hope you will consider dropping by. Legal blogosphere mavens may be interested to know that Dan Markel of Prawfsblawg, a leading criminal law scholar, will be presenting a paper as part of the same panel.

UPDATE: In the initial version of this post, I accidentally forgot to include a link to the Fed Soc faculty conference’s website. I have now fixed that problem. [...]

Continue Reading 0

New London Mayor Advocates Devoting the Kelo Condemnation Site to a True “Public Use”

Eight years after the Supreme Court ruled in Kelo v. City of New London that private property can be taken and transferred to other private owners in order to promote “economic development” because such development qualifies as a “public use” under the Fifth Amendment, the Kelo condemnation site still lies empty. But New London Mayor Justin Finizio, who previously apologized for the original Kelo condemnations, has proposed devoting the property for a true public use:

The 2005 Supreme Court decision in New London v. Kelo [sic], in which the court by a 5-4 majority constitutionally validated the New London Development Corp.’s use of eminent domain to purchase and raze the homes of Fort Trumbull residents who refused to sell, remains a “black stain” on the city, said its mayor

NLDC wanted to clear the site to attract large corporate development and expand the city’s tax base. Its judicial triumpth proved a pyrrhic victory, the decision widely despised for interpreting “public use” to include the government taking the property of citizens to turn over to private developers. Count the New London mayor among the despisers. He characterized the Kelo decision as a “corruption of the constitutional interpretation of public use.”

Fort Trumbull has seen no new construction since the bulldozers departed the flattened neighborhood.

Mayor Finizio said he would like New London to symbolically overturn Kelo by undertaking a true “public use” of the seized private properties. He offered as an example a parking garage, under discussion recently as a means of meeting the parking demands generated by Electric Boat’s offices in the former Pfizer buildings, the one major project resulting from NLDC’s corporate development vision.

This would not be any municipal parking garage, but one with solar panels to power it, landscaping and design to fit it into

[...]

Continue Reading 0

Lawsuit Challenges Richmond, CA’s Plan to Use Eminent Domain to Condemn Mortgages

A group of bond investors has filed a lawsuit challenging the California City of Richmond’s plan to use eminent domain to condemn mortgages:

Bond investors including Pacific Investment Management Co. and BlackRock Inc. (BLK) are seeking a court order blocking Richmond, California, and Mortgage Resolution Partners LLC from seizing mortgages through eminent domain, saying the initiative would hurt savers and retirees.

The city’s plan is unconstitutional, according to a complaint filed today by mortgage-bond trustees in federal court in San Francisco. The trustees, Wells Fargo & Co. (WFC) and Deutsche Bank AG, were directed to take the action by investors in the debt that also include Jeffrey Gundlach’s DoubleLine Capital LP, said John Ertman, a partner at Ropes & Gray LLP….

The plan advanced last month with Richmond backing offers to buy 624 loans, making it the first city to push the idea so far forward. Those offers would need to be refused before the city could follow through with its mayor’s vow to invoke its potential powers to force sales of the mostly non-delinquent loans, so that homeowners could get their debt balances cut to less than the current values of their properties…

The plan is also discriminatory because it targets only certain loans, the trustees alleged. It violates California and U.S. constitutional protections against impairing private contracts and the taking of private property for public use without just compensation, according to the complaint.

I criticized the Richmond plan on policy grounds here. In a later post, I explained why the plan is likely unconstitutional because the compensation the city proposes to pay falls below the “fair market value” standard required by the Fifth Amendment’s Just Compensation Clause. The news report quoted above seems to say that this is one of the causes of action advanced [...]

Continue Reading 0

The Case for Federal Eminent Domain Reform

Nick Sibilla of the Institute for Justice, the libertarian public interest firm that litigated Kelo v. City of New London and many other property rights cases, has a good op ed in Forbes on the need for reform measures to curb federal funding of abusive condemnations by state and local governments:

Eight years ago, the U.S. Supreme Court ruled the city of New London, Conn., could use the power of eminent domain to seize an entire neighborhood…. The city justified this as a “public use” by claiming the development might increase tax revenue and jobs.

Americans were—and still are—outraged by this decision. Since Kelo v. New London, 44 states have passed some type of eminent domain reform…..

Despite this well-deserved backlash to the Supreme Court, eminent domain abuse still festers. Six states have failed to pass any type of reform….

Meanwhile, in states that have reformed eminent domain laws, municipal governments and developers have exploited loopholes. For example, some of these reforms still allow seizing property that has been declared “blighted.” Unsurprisingly, blight can be very broadly defined….

While many redevelopment projects are funded through state and local measures, federal grants are still being used to fund eminent domain abuse. Cedar Rapids, Iowa, received a $35 million grant from the Department of Commerce’s Economic Development Administration (EDA) to seize a hotel for a new convention center. At the time, it was the “largest discretionary grant” ever doled out by the EDA. In fact, that same bureaucracy was also responsible for granting $2 million to the redevelopment project that threatened Susette Kelo’s little pink house….

To that end, Congressman Jim Sensenbrenner (R-WI) has reintroduced the Private Property Rights Protection Act, which was recently passed by the House Judiciary Committee. If the act passes, a state or political subdivision that exercises

[...]

Continue Reading 0

The Kelo Condemnation Site Still Lies Empty Eight Years after the Supreme Court Ruled it Could be Taken for “Economic Development”

In its controversial 2005 decision in Kelo v. City of New London, the Supreme Court ruled that private property can be taken and transferred to other private owners in order to promote “economic development.” Eight years have passed since that decision. But, as the New London Day reports, there is still no development going on. The site continues to lie empty:

In the late 1990s, with around $80 million from the state, the city began a redevelopment project that included razing the worn-down neighborhood of single- and multi-family homes along with the bones of an abandoned federal research center at Fort Trumbull. Many home owners sold their land and moved on. Some properties were taken by eminent domain.

A hotel, restaurant, conference center, athletic center, bioscience office park and new housing were supposed to be built next to a new $300 million Pfizer Inc. office building. But eight years after the landmark Supreme Court decision, which expanded the parameters of eminent domain to include the taking of private property for future economic development, there is still no new construction in Fort Trumbull….

Last year, Mayor Daryl Justin Finizio issued an apology to former Fort Trumbull property owners [whose land was taken] and announced a restructuring of the New London Development Corp….

The mayor wants the land that was taken by eminent domain to be set aside and used only for public projects. Possibilities include a desalinization plant, a wind farm and a solar field. A municipal parking garage with ground-floor retail is also a possibility, he said….

But as of now, nothing is happening at the site.

A groundbreaking for the first phase of the 103-unit, $24 million condominium project was postponed last month after a dispute over financing of $8 million for the first phase of the

[...]

Continue Reading 0

Interesting Missouri Supreme Court Decision Interpreting the State’s Post-Kelo Eminent Domain Reform Law

The Supreme Court of Missouri recently issued Missouri Ex. Rel. Jackson v. Dolan, an important decision interpreting the state’s post-Kelo eminent domain reform law, which bans the use of eminent domain to condemn property for “solely economic development purposes.” As Robert Thomas points out at the Inverse Condemnation Blog, the ruling gives the statute more bite in constraining eminent domain than most experts (myself included) expected it to have.

In the aftermath of the federal Supreme Court’s unpopular decision in Kelo v. City of New London, which ruled that the federal constitution permits economic development takings, 44 states adopted eminent domain reform laws that supposedly restricted such condemnations. Unfortunately, many of the new laws do little to actually constrain the use of eminent domain authority, often allowing the same old takings to continue under other names. Most commentators believed that the Missouri law was one such ineffectual reform, because, as Thomas explains, “it would seem that all a condemnor need do is throw in another reason — in addition to economic development — and it would be off the hook.” As he points out, courts in other states that ban takings “solely” or “primarily” for economic development have accepted such circumvention. In Jackson, however, the Missouri Supreme Court struck down a condemnation that, in addition to promoting economic development, would also supposedly enhance port facilities and “improve” river commerce. The Court ruled that these alternative rationales were not genuinely different from economic development because “”[t]he record demonstrates that the only manner in which the taking will ‘improve river commerce’ is by drawing more economic development into the area” and that any enhancement of port facilities would be of value only because it too promotes development.

Thomas is right that this ruling could potentially constrain economic development [...]

Continue Reading 0

Illinois Senate Passes Bill Authorizing the Use of Eminent Domain to Take Property for Casinos

The Institute for Justice, a leading libertarian public interest law firm that has litigated numerous property rights cases, reports that the Illinois state senate has passed a bill authorizing the use of eminent domain for the benefit of casinos:

The bill passed 32-20 in the state Senate on May 1 and is now being considered by the House Executive Committee. Gov. Pat Quinn has previously vetoed two Chicago casino bills in the past. However, while the governor still has concerns about this new casino bill, he has indicated he could sign, so long as gambling revenue funds education and ethics standards are tightened. (After all, four of Illinois’ last seven governors have gone to prison.) Yet casinos abusing eminent domain apparently hasn’t crossed Quinn’s mind.

As the IJ post notes, takings for the benefit of casino interests have occurred in other states, and often lead to the same sorts of abuses as other “economic development” condemnations of the type upheld by the federal Supreme Court in Kelo v. City of New London. Such takings are routinely used by politically powerful firms to acquire property from the politically weak. They also often destroy more economic value than they create. I discuss these problems in much more detail in this article.

In the aftermath of Kelo, some 44 states passed eminent domain reform laws intended to curb such abuses. But Illinois’ law is one of many that contain major loopholes that prevent them from providing much in the way of meaningful protection for property owners. The IJ post notes that Illinois’ 2006 law rates only a D+ under their grading scale.

Hopefully, the Illinois House of Representatives will reject the Senate bill. The legislation is currently before the House Executive Committee. If the House does not reject [...]

Continue Reading 0

Supreme Court Refuses to Hear Important Property Rights Case

As Damon Root notes, The Supreme Court recently refused to consider Ilagan v. Ungacta, an important Public Use Clause property rights case. I wrote an amicus brief on behalf of numerous public interest organizations and law professors urging the Court to take Ilagan and use it as an opportunity to clear up major ambiguities left over after Kelo v. New London, and also as a vehicle for reversing Kelo itself. I discussed the significance of the case in this post:

Ilagan v. Ungacta is a fairly egregious case where land was condemned for the purpose of benefiting a powerful private party, in this case the then-mayor of Agana, Guam, and his family (the new owners of the condemned property). In Kelo v. City of New London, one of the most widely opposed decisions in Supreme Court history, the Court ruled that the Public Use Clause of the Fifth Amendment allows condemnations for virtually any “public purpose,” including transferring property from one private owner to another in hopes of stimulating greater “economic development.” But the Court also noted that government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” Unfortunately, neither Kelo nor other Supreme Court decisions have made clear what it means for a taking to be “pretextual.”

[L]ower federal courts and state supreme courts have come up with at least five different approaches to deciding what counts as a pretextual taking….

Ilagan is a great case for the Court to clarify the meaning of pretext because it includes all four possible indicators of pretext identified by various lower court decisions: dubious motives, a highly skewed distribution of benefits, lack of careful planning, and a major private beneficiary whose identity was obvious

[...]

Continue Reading 0

Don’t Believe the Denials – Alabama Really Did Undermine its Post-Kelo Eminent Domain Reform Law

Last week, I blogged about how the Alabama state legislature recently adopted a bill that undermines its post-Kelo eminent domain reform law and opens the door to the taking of private property for transfer to a wide range of politically connected private interests. Two state senators who sponsored the law have claimed that their bill doesn’t really expand eminent domain authority [HT: John Ross, who is similarly skeptical about the sponsors' denials]:

A new law designed to help lure high-tech manufacturing jobs to Alabama does not give cities greater eminent domain powers, several people involved in the legislation said Monday….

state Sen. Arthur Orr, R-Decatur, said that’s simply not the case. Orr said the “Major 21st Century Manufacturing Zone Act” does nothing to change or broaden eminent domain laws….

State Sen. Bill Holtzclaw, R-Madison, said he is “very big on personal property owner rights” and would not have co-sponsored the legislation if he thought it might be used to expand the use of eminent domain.

“I’ve been adamantly opposed to that,” Holtzclaw said Monday. “If there’s something there that was unintentional, we’ll close the loop on it.”

These denials are dubious, at best. The relevant legislation, Senate Bill 96 contains the following language:

It is further found and declared that the powers conferred by this chapter are for public and, in the case of automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities, private uses and purposes imbued with a public interest and for which public money may be expended, either directly or indirectly, in the case of automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities, and the power of eminent domain and police

[...]

Continue Reading 0

Alabama Undermines its Post-Kelo Eminent Domain Reform Law

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 [...]

Continue Reading 0

How I Became a (Minor) Victim of Academic Plagiarism

Today, the Baltimore Sun published a detailed story about Towson University Professor Benjamin Neil, who has been accused of numerous instances of plagiarism, especially in a 2012 article on Kelo v. City of New London and post-Kelo eminent domain reform which has since been withdrawn by the Journal of Academic and Business Ethics:

A longtime Towson University professor has resigned his post as the head of the city school system’s ethics panel amid allegations that his published academic articles contain content from dozens of sources without proper — or in some cases any — attribution.

University officials and journal publishers say they are reviewing several articles submitted by Benjamin A. Neil, a legal affairs professor, after a librarian at another university alerted them to the issue.

A Baltimore Sun review of five papers published by Neil shows passages with identical language and others with close similarities to scholarly journals, news publications, congressional testimony, blogs and websites. In many cases, there was no attribution.

Neil, who has taught at Towson for more than 20 years, says he properly attributed work from other authors.

“I don’t think I’ve done anything wrong,” said Neil, 62. “The issue seems to be that I didn’t put things in quotes. But I’ve given attribution to people….”

Meanwhile, some of his colleagues across the country and authors of the original material who were contacted by The Sun criticized what they called “lazy plagiarism” and a breach of academic integrity. Experts say the incident highlights the pressures that professors feel to publish.

“It’s completely unacceptable conduct, particularly for a professor,” said Jeffrey Beall, a scholarly initiatives librarian at the University of Colorado, Denver who contacted Towson officials and journals about the alleged plagiarism.

It so happens that I was one of the scholars whom Neil plagiarized [...]

Continue Reading 0

University of Michigan Law School Talk on Property Rights Since Kelo

On Thursday, March 14, I will be giving a talk on “Property Rights Since Kelo” at the University of Michigan Law School. The event will run from 11:45 to about 12:50.

I will cover both the legislative and judicial reactions to the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, which ruled that the Fifth Amendment allows government to take property from one private owner and give it to another simply on the basis that the new owner might promote “economic development” in the area. Much has happened since Kelo, which generated the broadest legislative reaction of any decision in Supreme Court history, with 44 states and the federal government passing eminent domain reform laws in its wake. While important progress has been made in protecting property owners, much remains to be done.

University of Michigan property Professor James Krier, coauthor of the widely-used Dukeminier and Krier property law textbook, will comment on my talk. The event is sponsored by the University of Michigan Law School Federalist Society. [...]

Continue Reading 0

Talk on Kelo and Post-Kelo Eminent Domain Reform at South Texas College of Law

This Thursday at 5 PM, I will be speaking on Kelo v. City of New London and post-Kelo eminent domain reform at South Texas College of Law in Houston. The talk will be held in the Emile Slohm conference roomon the 6th Floor, and is sponsored by the South Texas Federalist Society.

I will will cover both Kelo itself, and the massive political and judicial reaction it has generated. South Texas property professor Josh Blackman, who is also a prominent legal blogger, will provide commentary. [...]

Continue Reading 0

Our Amicus Brief Urging the Supreme Court to Hear Ilagan v. Ungacta – An Important Post-Kelo Property Rights Case

We recently filed an amicus brief urging the Supreme Court to hear Ilagan v. Ungacta, an important property rights case on the Public Use Clause of the Fifth Amendment. I wrote the brief on behalf of the National Federation of Independent Business Small Business Legal Center, twelve other organizations (including the Cato Institute, the Becket Fund for Religious Liberty, the Owners’ Counsel of America – a nationwide organization of eminent domain lawyers, and the American Forest Resource Council), and several prominent constitutional law and property scholars, including co-bloggers Randy Barnett and Todd Zywicki.

Ilagan v. Ungacta is a fairly egregious case where land was condemned for the purpose of benefiting a powerful private party, in this case the then-mayor of Agana, Guam, and his family (the new owners of the condemned property). In Kelo v. City of New London, one of the most widely opposed decisions in Supreme Court history, the Court ruled that the Public Use Clause of the Fifth Amendment allows condemnations for virtually any “public purpose,” including transferring property from one private owner to another in hopes of stimulating greater “economic development.” But the Court also noted that government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” Unfortunately, neither Kelo nor other Supreme Court decisions have made clear what it means for a taking to be “pretextual.”

As I explain in the brief (pp. 4-13), lower federal courts and state supreme courts have come up with at least five different approaches to deciding what counts as a pretextual taking. Some courts emphasize the motives of the condemning authority, some focus on the distribution of benefits from the taking, and some on the extent and quality of the planning process behind [...]

Continue Reading 0

A Chinese Analogue to the Kelo Case?

This recent Chinese case has attracted a lot of attention in both China and the West, and is drawing comparisons to the famous US takings case of of Kelo v. City of New London. The Huffington Post describes the facts as follows:

In the middle of an eastern Chinese city’s new main road, rising incongruously from a huge circle in the freshly laid pavement, is a five-story row house with ragged edges. This is the home of the duck farmer who said “no.”

Luo Baogen and his wife are the lone holdouts from a neighborhood that was demolished to make way for the main thoroughfare heading to a newly built railway station on the outskirts of the city of Wenling in Zhejiang province.

Dramatic images of Luo’s home have circulated widely online in China this week, becoming the latest symbol of resistance in the frequent standoffs between Chinese homeowners and local officials accused of offering too little compensation to vacate neighborhoods for major redevelopment projects.

There’s even a name for the buildings that remain standing as their owners resist development. They are called “nail houses” because the homeowners refuse to be hammered down….

Xiayangzhang village chief Chen Xuecai said in a telephone interview Friday that city planners decided that Luo’s village of 1,600 had to be moved for a new business district anchored by the train station. Chen said most families agreed to government-offered compensation in 2007.

Luo, 67, and a handful of neighbors in other parts of the new district are holding out for more.

“We want a new house on a two-unit lot with simple interior decoration,” Luo told local reporters Thursday in video footage forwarded to The Associated Press.

Luo had just completed his house at a cost of about 600,000 yuan ($95,000) when the government

[...]

Continue Reading 0