The Post-Kelo Reform Debate Continued:

Bert Gall of the Institute for Justice has responded to my Reason Online article about Post-Kelo eminent domain reform. Bert's assessment of the state of eminent domain reform is more optimistic than mine.His piece is here. Most of the arguments he raises are similar to those he made in our earlier debate on this issue right here at the VC. For my take on his arguments, I refer you to my posts in that debate (see here and here; these posts also contain links to Bert's earlier posts).

Bert's Reason article does, however, contain two minor (and surely unintentional) misrepresentations of my argument. First, Bert claims that "Somin states that only 14 states have provided significantly increased protections for property rights." That is not correct. In fact, I wrote that only 14 state legislatures have enacted effective post-Kelo eminent domain reforms. Later on in my Reason article (as in my earlier writings on this issue), I emphasized that at least six states have enacted effective post-Kelo reforms by referendum. Four of them had not previously enacted effective reforms through the ordinary legislative process. Indeed, as I explain in greater detail in the paper on post-Kelo reform that kicked off this debate, the difference between citizen-initiated referenda and legislative efforts is a major part of my explanation for the pattern of reform that we have seen.

Second, Bert points to court decisions curtailing Kelo-like takings in several states, and implies that these refute my argument. However, my analysis specifically addresses only reforms enacted through the political process, and was in part meant to rebut claims that political reform would obviate the need for judicial intervention. I join Bert in applauding these decisions, and have in fact analyzed some of them in my own writings (e.g. - here).

But pointing to court decisions in no way refutes my arguments about legislative reform. Moreover, it is far from clear that these court decisions are the result of the Kelo backlash, since nine state supreme courts had forbidden economic development takings even before Kelo (two - Ohio and Oklahoma - have done so since then, and two or three others have limited takings in other ways). In sharp contrast to state legislatures (of which only one - Utah - acted before Kelo), several state supreme courts struck down economic development takings in the decade immediately proceeding Kelo. They include Montana (1995), Illinois (2002), South Carolina (2003), and Michigan (2004). For details, see my paper on the Michigan case, County of Wayne v. Hathcock. A complete listing of state cases is in Note 7 in this article.

Gideon Kanner (mail):
Much as I admire Gall's spirit, Somin is right. When it comes to eminent domain, you can't be too pessimistic. Any attempt at effective reform has to face a 150+-year judicial culture that has consistently catered to the Robber Barons who have captured the power of eminent domain, who like its "free lunch" attributes, and therefore have no intention of giving it up without a bitter fight to which they bring massive financial resources and effective propaganda. Unless and until the post-Kelo public anger reaches the point at which the focus will be on voting the rascals out of office rather than just expressing anger, don't expect a hell of a lot by way of meaningful reform. The condemnors' successful emasculation on the Uniform Relocation Assistance Act around 1970 or the recent defeat of a popular reform movement in Virginia provide a classic "Exhibit A."

Moreover, there is a well established track record of courts minimizing legislative reforms that are enacted, by judicial [mis]terpretation of legislation.

I believe that the more realistic chance for reform is through reforming compensation, which would make the price payable by condemnors for the use of eminent domain come close[r] to the actual cost much of which they mow get to fob off on the condemnees. Also, unlike the various judicial absurdities concerning the right to exercise of the power of eminent domain, that the Supreme Court repeats without taking note of the record of public failures that have followed judicial decisions expanding the power to take, courts have acknowledged that "just compensation" isn't just and it isn't compensation, so this may provide an opening for reform.

Having said all that, Mr. Gall, keep fighting! Remember what Churchill said. Besides, whether you succeed or not, there are just some things that have to be fought for because it is the right thing to do. Illegitimi non carborundum.
5.3.2007 3:31pm