Is Post-Kelo Eminent Domain Reform Bad for the Poor?

The editors of the Northwestern University Law Review Colloquy have asked me to write a short piece on this issue. And the article is now available on SSRN. It will soon be published in the Colloquy and will later be reprinted in the regular Northwestern University Law Review.

My piece is a reply to an earlier Colloquy article by Northwestern University Law School Professor David A. Dana, which is available here. David's abstract summarizes his argument well:

This Essay provides a review of the changes in state law following Kelo v. City of New London, and in particular focuses on the dominant reform: the prohibition of economic development condemnations in non-poor areas (which Kelo allows, as a matter of federal constitutional law) coupled with continued allowance for blight condemnations in poor areas. This dominant reform, the Essay argues, privileges the stability of middle-class households over the stability of poor ones, and thus expresssively devalues poor people and poor communities in legal and political discourse.

Here's an excerpt from my abstract:

. . . I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserve greater attention but take issue with his argument that post-Kelo reform efforts have systematically treated the poor worse than middle and upper class homeowners.

Most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings or defined "blight" so broadly that virtually any property can be declared "blighted" and taken . . . Only nine states are actually guilty of allowing only the condemnation of "blighted" areas, narrowly defined. Even these nine flawed reforms are probably better for the poor than no reform at all. Such a law might benefit many poor people who live in non-blighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations, suggesting that they are not much concerned about the "expressive harms" that worry Professor Dana. Finally, the exclusion of blighted property from the ban on "economic development" condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor , , ,