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Kelo Backlash Update:

An excellent paper by Tim Sandefur summarizes the disappointing results of the political backlash stimulated by Kelo v. City of New London, which upheld the use of eminent domain to transfer property from one private citizen to another for purposes of "economic development."

In the aftermath of Kelo, many commentators, including Judge Richard Posner and Chief Justice John Roberts at his Senate confirmation hearings claimed that state legislative reform is a viable alternative to judicial enforcement of public use limitations. Posner even claimed that it provides justification for the Court's decision in Kelo itself (see my paper on Kelo, pg. 65-66). Although some forty states have either adopted or considered legislation to curb eminent domain power in the aftermath of Kelo, Sandefur concludes that only five - "Indiana, South Dakota, Georgia, Pennsylvania, and Florida" have enacted laws that actually provide "strong protections for property rights." Numerous other states have passed laws that purport to restrict eminent domain abuse but actually do little or nothing.

In my view, the situation may be even worse than Sandefur suggests. Of the five states that have enacted meaningful legislation, two (South Dakota and Georgia) have little or no history of private-to-private condemnation for economic development in any case, and one (Florida) already has a judicial ban on economic development takings (though the new Florida law also restricts "blight" condemnations). As Sandefur points out, the Pennsylvania law to a large extent excludes the cities of Philadelphia and Pittsburgh, where most of the state's development condemnations actually occur. Thus, only the Indiana and (to a lesser extent) Florida laws represent truly significant progress. I also think, for reasons discussed in my own forthcoming article on Kelo, that Sandefur is overly optimistic about anti-Kelo legislation being considered by the US Congress.

Why has the Kelo backlash largely failed? Sandefur blames the political power of development interests who benefit from private-to-private condemnations and the lack of a strong philosophical commitment to property rights. Both of these factors play a role. But Sandefur and other analysts fail to explain how development interests could overcome the opposition of the vast majority of the electorate that, according to surveys, opposes Kelo-style takings.

I would argue that political ignorance on the part of voters also plays a major role. A great deal of specialized knowledge and study is required to tell the difference between an anti-Kelo bill that meaningfully restricts eminent domain power and one that does little or nothing. The devil (and the angel, if any) is in the details! Most voters lack the ability or the incentive to scrutinize such details closely. Indeed, as I have argued in much of my scholarly work, it is rational for voters to pay little attention to the details of public policy because there is so little chance that any one voter's decision will have a decisive impact on electoral outcomes.

Developers and other interest groups, on the other hand, have far superior knowledge about the details of legislation and strong incentives to keep track of them. Thus, skilled politicians can satisfy voters angered by Kelo by passing laws purporting to "reverse" it, while simultaneously avoiding the ire of development interests by ensuring that those laws are actually toothless. For the same reasons that ordinary voters don't pay attention to the details of eminent domain law, they are also unlikely to pay attention to the details of its implementation. Thus, most will not notice that little has changed after the passage of "anti-Kelo" laws in their states. Run of the mill takings, even if abusive, are not likely to get the kind of widespread press coverage and attention that Kelo did. This dynamic will only get stronger as the excitement generated by Kelo begins to dissipate and public attention moves on to other issues.

This does not mean that all post-Kelo legislative reform is hopeless. It does, however, suggest that there are severe limits to what such reform can be expected to achieve. At the very least, supporters of property rights should be highly skeptical of claims that legislative reform is an adequate substitute for judicial enforcement of limits on the scope of public use.

crane (mail):
There's a possibility of reform here in New Jersey. The governor commissioned a guy to study the eminent domain situation, and he just released a report that said it should be reined in. Apparently the local government definition of "blight" has expanded to include properties that are not being used to their full commercial potential - like a middle-class neighborhood on land that would make a nice place for a luxury hotel. So, it's possible that New Jersey will enact legislation restricting the "blighted" designation to properties that are actually dilapidated or neglected.
5.28.2006 6:00pm
Harry Eagar (mail):
It could be as simple as the fact that hardly anybody has real property that any developer wants to take over.

In my state, the conflict is opposite: the government has lots of valuable real estate it wants to turn over to private developers, and public opinion is opposed.
5.28.2006 6:03pm
Celebrities. News and Pictures about Celebrities. (www):
o yeah
5.28.2006 6:14pm
Celebrities. News and Pictures about Celebrities. (www):
5.28.2006 6:15pm
Freder Frederson (mail):
Well gee, I'm just shocked, shocked I tell you, that state and local governments, where private developers and real estate interests always have held inordinate power (how is it that WalMart always manages to get sweetheart deals and tax breaks that the local Mom and Pop could never dream of) are passing feel-good legislation that really doesn't address the issues of Kelo.

As for Georgia and Florida, their is no meaningful difference between the developers and the government anyway, so passing laws to prevent takings for economic development are meaningless or saying there is no history of private to private condemnation for economic development misstates the reality of the situation on the ground in those states. Georgia also supposedly has zoning in many of its municipalities, but everyone knows that there is not one zoning law that will be upheld if you are willing to fight it since the Georgia Constitution guarantees "highest and best use" of private property.
5.28.2006 6:45pm
frankcross (mail):
It might simply be that takings of the sort outlawed by the legislation are extremely rare, and hence there is no material constituency for the change. Any data on their frequency?
5.28.2006 7:52pm
Doc Duke:
There is one you missed (but the facts make it academic). New Mexico passed "legislation aimed at protecting individual property owners from eminent domain abuse." However, Governor Richardson vetoed it (and since NM has a short legislative session, there is no chance of an override). The details are here:
http://www.heartland.org/Article.cfm?artId=19077
5.28.2006 8:01pm
Ilya Somin:
It might simply be that takings of the sort outlawed by the legislation are extremely rare, and hence there is no material constituency for the change. Any data on their frequency?

A good question, but I don't think this factor explains it. Most of the legislation enacted by the various states bans few if any takings that would have been permitted by preexisting law, so of course such takings are "extremely rare." However, private-to-private takings for economic development purposes (the kinds of condemnations at issue in Kelo, Poletown, Hathcock and other similar cases) are far from rare. We don't have comprehensive data on them, but there have been hundreds of cases over the last few years alone. Poll data repeatedly shows large majorities opposed to economic development takings (especially after Kelo), so neither the alleged rarity of the phenomenon nor the lack of opposition to it can explain the failure of the Kelo baclash to produce much result.
5.28.2006 8:19pm
Freder Frederson (mail):
Sometimes you academic types are just so hopelessly naive.
5.28.2006 8:26pm
I.I (www):
It may be that the more important backlash is one of heightened awareness and private action. The "Lost Liberty Hotel" project to condemn Justice Souter's home for commercial development generated a lot of press. BB&T's public statement that they will not fund any ED abuses also made the news.
5.28.2006 8:32pm
byomtov (mail):
At the very least, supporters of property rights should be highly skeptical of claims that legislative reform is an adequate substitute for judicial enforcement of limits on the scope of public use.

So you're saying that if the legislatures won't do what you want then judges must act?
5.28.2006 11:18pm
Bob Smith (mail):

As for Georgia and Florida, their is no meaningful difference between the developers and the government anyway

That wouldn't be a problem if government got out of the business of telling people how they can use their land. The power to block projects, and extract tribute for their approval, is why developers curry the favor of government officials.
5.29.2006 12:04am
Frank Drackmann (mail):
You know its bad when even Tony Soprano can't get his building permit approved.
5.29.2006 10:22am
Freder Frederson (mail):
That wouldn't be a problem if government got out of the business of telling people how they can use their land.

That might be a grand idea in the abstract, until your neighbor decides he wants to use his land for a factory hog farm.
5.29.2006 11:10am
Bob Leibowitz (mail) (www):
Rising from the realm of unintended consequences is the action by the city council of Hercules, CA, outside of San Francisco, that voted to condemn land owned by Wal-Mart, using eminent domain to restrict development. The company may appeal the decision.
5.29.2006 12:28pm
Fub:
Freder Frederson wrote:
Bob Smith wrote:
That wouldn't be a problem if government got out of the business of telling people how they can use their land.
That might be a grand idea in the abstract, until your neighbor decides he wants to use his land for a factory hog farm.

Only if there were no cause of action for nuisance, or if the factory hog farm didn't create an actionable nuisace for its neighbors under the law in that jurisdiction.
5.29.2006 1:35pm
byomtov (mail):
Only if there were no cause of action for nuisance, or if the factory hog farm didn't create an actionable nuisace for its neighbors under the law in that jurisdiction.

And you have the time and money to take the matter to court.

And suppose you do, and you win, and the court closes down the hog farm. Isn't that the government "telling people how they can use their land?"
5.29.2006 6:54pm
Patrick Wright (mail):
Here in Michigan, there has been a considerable response. In Hathcock, which was decided in 2004, the Michigan Supreme Court reversed its 1981 Poletown decision (Poletown allowed GM and Detroit to take an entire neighborhood for a factory).

But there was concern that a future court may return to Poletown. Therefore, the Michigan Legislature proposed Senate Joint Resolution E (a proposed constitutional amendment), which passed both houses and will be on the ballot in November. Not only does SJR-E prevent economic development takings but it also requires blight be determined on a property-by-property basis. Further, it requires the condemning authority to show be clear and convincing evidence that the particular property is blighted. In other words, if the amendment passes, Michigan will not have the Berman v. Parker problem.

There is currently in the works legislation that will significantly tighten the definition of blight, see e.g. HB 5060.

Here is the text of SJR-E.
5.30.2006 1:10am
Patrick Wright (mail):
Obviously, I was unable to use the link button properly. Here is the web address. There is a hard return between 2006 and the "/" that I needed to put in to make this address fit in this message; I'll try and figure out how to properly link for future messages.

http://www.legislature.mi.gov/documents/2005-2006
/jointresolutionenrolled/Senate/pdf/2005-SNJR-E.pdf
5.30.2006 1:13am
A. Nonymous (mail):
You note South Dakota and the political ramifications of Kelo without noting one of the biggest and most massive in that state.

The JAIL4JUDGES amendment got onto that state's ballot this November (as Amendment E) in large measure because of the proponents mentioning of Kelo as somehow proving judges as part of the New World Order conspiracy were taking people's property. Much if not all their campaign literature referenced the case as proof of the need to end judicial immunity and subject judges to civil suit and imprisionment.

Read more here and here here and here.
5.30.2006 12:00pm
Thorley Winston (mail) (www):
It could also be that some legislation was pending at the time of the article and not captured in the "analysis." Minnesota just reformed our laws on eminent domain less than two weeks ago (signed into law May 19, 2006. Under our new law, eminent domain may now only be used in Minnesota for a "public use" or "public purpose" which is defined as follows:


(a) "Public use" or "public purpose" means, exclusively:
(1) the possession, occupation, ownership, and enjoyment of the land by the general public, or by public agencies;
(2) the creation or functioning of a public service corporation; or
(3) mitigation of a blighted area, remediation of an environmentally contaminated area, reduction of abandoned property, or removal of a public nuisance.
(b) The public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health, do not by themselves constitute a public use or public purpose.



It's possible that other States have enacted comparable restrictions on the abuse of eminent domain that weren't captured in the article.
5.30.2006 1:38pm
Thorley Winston (mail) (www):
An excellent paper by Tim Sandefur summarizes the disappointing results of the political backlash stimulated by Kelo v. City of New London, which upheld the use of eminent domain to transfer property from one private citizen to another for purposes of "economic development."

The decision came out less than a year ago and most States have part time legislatures some of which have restrictions on the issues that they can handle in "off years."

Isn't it a little early for law review articles crowing about how the "backlash" has "failed"?
5.30.2006 2:45pm