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Jeffrey Toobin on Kelo:

Gideon Kanner points out several factual errors in Jeffrey Toobin's discussion of Kelo v. City of New London in The Nine, his much-discussed book about the Supreme Court. Kanner is certainly right to take Toobin to task for his claims that, prior to the Supreme Court's issuing its decision, the case "drew relatively little attention" and "hardly seemed like the stuff of high drama." In reality, the case had already attracted extensive press coverage and dozens of amicus briefs.

Toobin is even more wrong to attribute the immense public backlash against Kelo solely (or even primarily) to the machinations of "the conservative movement." As I note in this paper, Ralph Nader, DNC Chair Howard Dean, Bill Clinton, and liberal Democratic Rep. Maxine Waters were among those who quickly denounced Kelo when it came down. The NAACP, AARP, Hispanic Alliance of Atlantic County, and the Southern Christian Leadership Conference filed a joint amicus brief in the case supporting the property owners. I myself wrote an amicus brief supporting the property owners on behalf of the late Jane Jacobs, the famous generally left of center urban development theorist. None of the above are even remotely associated with "the conservative movement." Nor is it likely that they took the positions they did because nefarious conservatives somehow duped them into it.

It is unfortunate that one of the nation's most prominent legal journalists would make such basic errors about one of the most controversial and widely debated Supreme Court cases of the last 35 years. Eugene Volokh previously pointed out other factual errors in Toobin's book in a series of posts back in September. It is increasingly clear that Toobin's much-praised book is often unreliable.

Dilan Esper (mail) (www):
Ilya is right. Plenty of liberals supported Kelo; it was a bipartisan coalition. (To be fair, so was the other side.)

Toobin probably got misled by the fact that the Institute for Justice and other right-leaning organizations have supported takings litigation for a long time. That is true, but there are plenty of people across the political spectrum who are concerned about it, especially when the taking is on the ground of "urban blight", which can be a code word for racism, as Justice Thomas pointed out in dissent.
1.15.2008 6:24pm
Mr. Liberal:
I agree with the Kelo decision.

But that is not what I want to write about here.

The statements:

"drew relatively little attention"

is factually correct, depending on what "relative" refers to.

First, amicus briefs by advocacy organizations that are in the business of writing such briefs may not be the sort of attention Tobin is referring to.

Second, their is no denying that the amount of press coverage and legislative attention that Kelo got after it came out massively dwarfed the amount of attention it got before the decision was issued.

The statement:
"hardly seemed like the stuff of high drama"

Is an opinion, not a fact. As a Yale Law graduate, I would expect you to be able to differentiate the two.


Toobin is even more wrong to attribute the immense public backlash against Kelo solely (or even primarily) to the machinations of "the conservative movement."


Can you support this assertion that Toobin said that with appropriate quotes?

It seems pretty clear that the loudest and most heated objections came from conservatives. On the other hand, obviously, if Toobin said they were the sole objectors, this would be a factual error. But, I would like to see an actual quote.
1.15.2008 6:50pm
Gordo:
Speaking of books about the Supreme Court with "Nine" in the title, has anyone read this book? I recently came across it and enjoyed reading it - it was written in 1955 by Fred Rodell, who takes a very critical view of the Supreme Court as a conservative bastion. The book is very out of date in a very quaint way - I like to read such books that are interestingly out of date and reflect the passions of past times (Rodell spends a whole chapter attacking Vinson and the Truman Court).

Has anyone else read this one?
1.15.2008 7:14pm
RowerinVa (mail):
A legal journalist gets a legal story completely wrong? Next thing you know, Charlie Savage will get a Pulitzer for falsely reporting on Bush 43's signing statements (and in the process, incorrectly reporting on Bush 41 and Clinton's signing statements), despite widely blogged corrections!

No, wait. That already happened. [http://boston.com/news/specials/savage_signing_statements/]

I may have to abandon my belief in the good faith and near-infallibility of the mainstream media.
1.15.2008 7:25pm
Ilya Somin:

"drew relatively little attention"

is factually correct, depending on what "relative" refers to.

First, amicus briefs by advocacy organizations that are in the business of writing such briefs may not be the sort of attention Tobin is referring to.

Toobin is even more wrong to attribute the immense public backlash against Kelo solely (or even primarily) to the machinations of "the conservative movement."



Can you support this assertion that Toobin said that with appropriate quotes?

It seems pretty clear that the loudest and most heated objections came from conservatives. On the other hand, obviously, if Toobin said they were the sole objectors, this would be a factual error. But, I would like to see an actual quote.


I don't think there were many conservative objections that were "louder" and "more heated" than the statements by Dean, Waters, and Clinton, among others, that I cited in my article. For example, Waters called it the "the most un-American thing that can be done."

As for quotes from Toobin's book, read pp. 306-308 and the excerpted quotes in Kanner's posts. Toobin clearly attributes the Kelo backlash almost entirely to the "conservative movement" and conservative Republican politicians such as John Cornyn.

Second, their is no denying that the amount of press coverage and legislative attention that Kelo got after it came out massively dwarfed the amount of attention it got before the decision was issued.


1. Very few Supreme Court cases drew as many amicus briefs as Kelo. Some 25 on Kelo's side, and almost as many supporting New London.

2. Even before the decision was handed down, it got much more press and public attention than, probably, 99% of other Supreme court cases.
1.15.2008 7:29pm
Ilya Somin:
The statement:
"hardly seemed like the stuff of high drama"

Is an opinion, not a fact. As a Yale Law graduate, I would expect you to be able to differentiate the two.


This is a technically correct, but misleading point. In context, "hardly semed like the stuff of high drama," was simply another way of saying that Kelo was an unimportant case that (in Toobin's view) attracted little attention until "conservatives" hyped it up after the decision came down. That is a factual claim, and a false one.
1.15.2008 7:34pm
Steve:
The reason no one expected high drama is that virtually every observer expected the decision to come out the way it did, since it was the result indicated by precedent. The fact that it ended up as a bitterly contested 5-4 decision, complete with scathing dissent, was an important part of what propelled it into the headlines.

I guess I think Toobin was pretty much accurate on the run-up to the case, not so much so regarding the aftermath.
1.15.2008 8:25pm
byomtov (mail):
I'm hardly a conservative, but I very much dislike the Kelo decision.
1.15.2008 8:29pm
Gideon Kanner (mail):
I should add that the number of cases across the country challenging the right to take on grounds of lack of public use inter alia has been rising since the 1980s. Before and around the time cert was granted in Kelo, the courts of Illinois, Pennsylvania and Michigan sharply restricted the scope of "public use" permissible in redevelopment cases. The Minnesota Supreme Court split 50-50 on this issue. On the federal side there was the 99 Cents Only Stores case that, though decided by a District Court, was influential and was cited with approval by both the Kelo majority and the dissenters. Also, the Cottonwood church case. Moreover, at the time of argument the Court was mobbed by throngs of spectators some of whom waited in line starting the day before, and there was a mass departure of spectators from the courtroom when the arguments were finished.

People can disagree on things that are a matter of opinion, but Mr. Liberal goes beyond the pale by reflexively quarreling with facts with which he is obviously not acquainted.
1.15.2008 8:40pm
Mr. Liberal:

This is a technically correct, but misleading point. In context, "hardly semed like the stuff of high drama," was simply another way of saying that Kelo was an unimportant case that (in Toobin's view) attracted little attention until "conservatives" hyped it up after the decision came down. That is a factual claim, and a false one.


Makes sense.

I do not want to make this more than it is. Take this as a stylistic critique.

We both agree that you cannot really say that an opinion is factually inaccurate, and so it doesn't add anything unless it somehow helps us eliminate ambiguities in a statement that is a factual claim. An opinion is certainly capable of shedding light on how to interpret a statement that is a factual claim. But, I wouldn't put the opinion out there without the factual claim also.

In this case, the factual claim you say Toobin is making is contained is paraphrased, but not quoted. For me, when discussions go to whether someone is factually incorrect, I tend to gravitate towards quotes, rather than summaries, because there is often issues going to interpretation.

To me, when you put the opinion statement in quotes, which is secondary, while the main factual claim whose accuracy is in question is merely paraphrased, that throws me off. Because I tend to give quotes more deference as actually reflecting what was said, I tend to gravitate towards them. (Of course, quotes can be taken out of context, so quotes are not perfect either. And, obviously, accurate paraphrasing is superior to misleading quoting.)

I am sure reasonable people can disagree with me on this stylistic point, but that is how I see it.


2. Even before the decision was handed down, it got much more press and public attention than, probably, 99% of other Supreme court cases.


This very much goes to one of the factual claims you are critiquing, that the decision "drew relatively little attention," before the opinion was issued and criticism from conservatives brought it into the public's consciousness.

Compared to the typical Supreme Court case, I have no doubt that Kelo got more attention before the decision was issued. But, relative to the attention it got after the decision was issued and started to be widely condemned, that attention was not high.

So, again, it depends on what you are saying that Kelo before issuance got attention relative to. If Toobin means little attention relative to other cases before issuance, that would be inaccurate. If he means that it got little attention compared to what it got later, when Kelo got an extraordinary amount of attention even compared to well publicized decisions, that would be accurate.

The latter interpretation is consistent to the extent that Toobin wants to emphasize the role of conservatives in drumming up attention to Kelo.


I don't think there were many conservative objections that were "louder" and "more heated" than the statements by Dean, Waters, and Clinton, among others, that I cited in my article. For example, Waters called it the "the most un-American thing that can be done."


I agree that there were isolated incidents of passionate criticism on the left. I wouldn't give much weight to Maxine Waters though, since I am sure you will agree, she seems to be excessively hyperbolic in general.

Overall, I would think it is fair to say, that based on repetition of strong of condemnation and loudness of voice in the public mind, conservatives more than liberals drove the immense press coverage in the aftermath of Kelo. That obviously does not mean that their were not liberal critics. But I think passionate statements by liberals was both less common, and repeated less often.

Thanks for the particular page cites. When I get the chance, I will look at the book and see if I concur in your overall opinion.

Based on your summaries so far, I would say the verdict is still out until I get the chance to review it for myself.
1.15.2008 8:53pm
CrazyTrain (mail):
Further I heard that Toobin goes to a church where the minister has friends who are racists. Someone call Bernstein!
1.15.2008 9:08pm
Adam J:
Mr. Liberal- Kelo drew very little attention? Compared to Brittany's latest legal woes maybe... but it drew far far more attention than your average Supreme Court case. I suppose it's just your opinion that many liberals weren't against Kelo, since "conservatives more than liberals drove the immense press coverage in the aftermath of Kelo" is a conclusion in need of factual support.

Personally I don't see how you can think its unusual for a liberal who doesn't like it when the government wants to invade his privacy would then think its okay for the government to take his property (in order to give it to a corporation on the cheap no less!). Speaking as one liberal, I'm not too keen on the idea.
1.15.2008 11:14pm
Lev:
It seems to me that Toobin is a TV entertainment personality on topical subject matter, so why would anyone expect him to avoid errors.
1.16.2008 12:21am
TGGP (mail) (www):
The anarcho-capitalist libertarian Stephan Kinsella defends the SC's Kelo decision here as did Ron Paul here.
1.16.2008 12:24am
Ilya Somin:
The anarcho-capitalist libertarian Stephan Kinsella defends the SC's Kelo decision here as did Ron Paul here.

So what? Paul defended Kelo on the grounds that he doesn't believe that ANY part of the Bill of Rights applies to state governments.
1.16.2008 12:40am
Gideon Kanner (mail):
There is a matter that emerges from this controversy that I find astounding. How did it happen that people who label themselves liberals and profess to oppose the abusive power of large corporations acting alone or in concert with compliant government officials, and who profess to be on the side of the "little guys" in any controversy that pits them agains corporate power, nonetheless in this context come down squarely and vociferously on the side of General Motors, Daimler-Chrysler, Nissan, AM General (makers of Hummer), the New York Stock Exchange, Otis Elevators, Pfizer pharmaceuticals, the Bank of America, the New York Times, Donald Trump, casinos, large car dealers and countless large chain and department stores (notably but not exclusively Costco, Target and Wal Mart), and against the vital interests of homeowners, residential tenants and small business owners who are summarily evicted from their properties (the latter two usually without any "just compensation" because the tenants are usually month-to-month and lack leasehold bonus value, and the business people are told that their businesses, though clearly property that is getting destroyed in the condemnation of their premises, are deemed by the courts to be non-compensable)?

Care to explain that one, Mr Liberal?
1.16.2008 1:30am
Nameless (mail):
The Kelo case did not get much advance publicity until very shortly before the decision. In contrast, Regents of UC v. Bakke, for example, got lots of publicity years before the Supreme Court decision.
1.16.2008 6:10am
arbitraryaardvark (mail) (www):
I think Mr Liberal has the better of the argument that the concerns at issue in this post are matters of opinion rather than fact. The VC does a great job of fact checking the MSM, and that reputation gets diluted when disagreements are mislabeled as errors. Relatively is the key term.
Without IJ, there would have been no Kelo. IJ, a conservative and libertarian organization, carefully picks its cases to appeal to liberal fairness and justice concerns, and the media relations machinations are an essential part of its strategy.
I've attended IJ's activist training CLE, and highly recommend it.
Gideon's Trumpet is an excellent blog on an important topic, and I would agree with Gideon that Toobin was factually wrong in saying the local government tried to "buy" the land (although I have not read Toobin to know the context.)
1.16.2008 6:39am
loki13 (mail):
Prof. Somin,

I would have to disagree with you about this post. When writing for a general (lay) audience, sometimes the gist of information may be correct while those with more specialized information might be able to poke small holes in the particularities. This book is not, after all, a law review article.

Speaking from my own personal experience, I was not involved in the legal profession when Kelo was handed down. I did not hear about it before the decision... but I heard a great deal of coverage about it in the media after the decision. I think that Toobin's characterization is fair, if not entirely accurate (whereas yours- 99% of cases... um, considering the caseload each year... is also somewhat hyperbolic).

Regarding the conservative/liberal divide... it is well known that while Kelo may have attracted some liberal support, as pointed out by others on this thread, the reworking of ED precedent has been a long-term goal of conservative activists, and Kelo was part of that strategy. Given the time Toobin devoted to Kelo, attributing it to the conservative movement is also not misleading.

Had this been a book (or law review article) about Kelo, your criticisms might have more traction. Instead, I am reminded of that poster who, whenever someone states that the earth orbits around the sun, corrects them by writing that the two orbit a point slightly outside the sun.

Don't be that guy.
1.16.2008 8:49am
George Smith (mail):
I am a reaal estate attorney in a large (600+) Midwestern firm. Our department has a sizeable development practice in several cities. We are in universal agreement that Kelo was (i) a terrible decision and a complete distortion of the public use doctrine, and (ii) great for business.
1.16.2008 11:33am
Gideon Kanner (mail):
All these quibbles about how inaccurate Toobin was and how his distortion may be understandable and forgivable can't change the fact that he obviously tried not to so much to depict what happened, but to disparage it, along with Kelo's importance, and to depict the country's justifiably angry reaction to it as the unwarranted grumbling of malcontents incited by the "conservative movement." Sorry, folks. It won't wash.

The conservatives are not magicians, and if they had the power to incite the country to such a degree, the government would be solidly conservative. Whether you like or dislike Kelo's outcome, the incontestanble fact is that the Court unwittingly gave them much to work with.

The press has a long and inglorious history of distorting the issues and arguments made in eminent domain litigation. In the inverse condemnation side of it these folks have engaged in breathtaking distorttions and outright fabrications. If you are interested in the truth -- though I fear some of you are not -- read three articles of mine: Redwoods, Junk Bonds and Tools of Cosa Nostra: A Visit to the Dark Side of the Headwaters Controversy, 30 ELR 10756 (2000), Lucas and the Press: How to Be Politically Correct on the Taking Issue, Chap. 5, in After Lucas: Land Use Regulation and the Taking of Property Without Compensation (David L. Callies, ed.) at 102-124 (ABA 1993), and Not With a Bang, but a Giggle: the Settlement of the Lucas Case, Chap. 15, in Takings: Land-Development Conditions and Regulatory Takinsg after Dolan and Lucas (David L. Callies, ed.), at 308-311 (ABA 1996). To the best of my knowledge no one has dispute these facts.
1.16.2008 12:09pm
loki13 (mail):
Gideon,

I would have to disagree with you. As a (relatively) well-informed member of the community, I remember being outraged at Kelo as portrayed by the press after the ruling was handed down. Only after attending law school did I understand that Kelo was in line with precedent, and the surprise was that it was decided as closely as it was, and, moreover, that it was the product of an effort by conservative/libertarian activists to change the ED law.

None of this relates to a normative judgment about whether Kelo was correctly decided from a given constitutional perspective. But it is disingenuous of you to discount the efforts of special interest groups (such as IJ) that happen to be property rights/conservative in propelling the issue forward.
1.16.2008 12:32pm
Adam J:
loki- he's not discounting the conservatives interest groups that helped move this issue forward, he's pointing out that reason the movement against Kelo was so strong was because of the alliance of conservative and liberal interest groups that were opposed to the case. It was Toobin who discounted liberal opposition to Kelo. But, it seems to me you want to just get into a pissing match of whether or not more conservatives oppose Kelo than liberals.
1.16.2008 1:17pm
loki13 (mail):
Adam,

No, not a pissing match. A question of fairness. ED/property rights is a conservative and libertarian cause celebre with a concerted legal and philosophical effort behind it. It so happens that some liberals supported it. I think it is a fair statement that few libertarians/conservatives opposed it.

If someone, in a book about the Supreme Court, wrote an aside that Roe was spearheaded by liberals, would the existence of some conservatives who supported the right to choose make that statement 'dishonest'? This is simply a case of protesting (or nitpicking) too much. If you would like to credit liberals for being the vanguard of protecting our property rights, go right ahead.
1.16.2008 2:14pm
lonetown (mail):
He probably assumed conservatives drove the opposition to Kelo because thats the way the court split.
1.16.2008 2:25pm
Gideon Kanner (mail):
The problem in this discussion is that too many posts have bought into the post-Kelo liberal "party line" (that Kelo decided nothing new and that it was merely an application of the settled Berman-Midkiff line of authority). Not so. Both Berman and Midkiff were explicit that the justification for the private-to-private property transfer was the elimination of of social harms (i.e., slums in Berman and a supposed land "oligopoly" in Midkiff). The court later reaffirmed that rationale and made it clear again in the Boston &Maine Railroad case. Kelo, on the other hand, simply proceeded on the premise that the city needs no harm elimination justification and can take private property to make money, in this case by by giving Pfizer whatever it wanted and hoping for the best on a trickle-down theory. In fact, the city had no real plans and no financing (which it still does not have), and in the time after Kelo came down, NOTHING has been done on the taken land which is sitting there vacant, after the city and the state blew over $70 million on it. Your tax money at work.

All that BS about New London going to hell in a handbasket was just that -- BS. Why? Because New London expressly eschewed use of blight elimination statutes and -- more important -- the Fitch bond rating service noted New London's stable tax cash flow and rated its GO bonds AA- (a solid investment grade rating).

The non-legal reason for the uproar was that this was a mass taking of middle class homes in one of the nation's leading NIMBY states, and resistance to such takings has been buildingfor some time. In Berman, the victims who lost their dwellings were the powerless African-American poor so they couldn't do anything as they were herded from the slums of Southwest DC into the slums of Northeast DC where they had to pay more for worse housing. There is much literature (written from a left-of-center perspective) on that point and you should read some of it. In Midkiff, the affluent, influential land lessees were the BENEFICIARIES of the private-to-privare transfer, and the landlord, the Bishop Estate, was successfully depicted in the press as a "trust" that abused its tenants, rather than the charitable institution it was. In fact, the benefitted tenats were affluent haole suburbanites in the best neighborhoods on Oahu. In Kelo, on the other hand, the victims were lower middle class folks and they had national support mobilized by IJ which did an admirable job of bringing eminent domain abuses to the public consciousness. In any event, by eliminating the justification of harm-elimination, Kelo was quite novel.
1.16.2008 4:01pm
Shertaugh:
Toobin is indeed a *prominent* legal journalist. Toobin is also well schooled and possessed of a fine resume.

But his pedigree, genial demeanor, and his *Mr. Everyman* attitude hardly exempts him from shoddy work -- which unfortunately is all too often for me.
1.16.2008 5:35pm
Gideon Kanner (mail):
Loki 13:

Yeah. Law school will do that to you.
1.16.2008 8:40pm
loki13 (mail):
Gideon,

You're correct. It's amazing what a difference reading cases, as opposed to believing the halfwits in the media and on blogs summrizing the cases, does.

And Kelo is not as novel as you would believe. Most (including Prof. Somin, in posts before) understood the outcome as determined by precedent even while disagreeing with the precedent. It came down to the issue of deference, and when it is appropriate. But the inability to distinguish precedent makes your argument as convincing as O'Connor's dissent.

Thomas, at least, believed the precedent was wrong.
1.17.2008 8:42am
Gideon Kanner (mail):
loki13:

Lots of precedents in eminent domain are wrong, either per se in the sense that they contradict what are supposed to be doctrinal principles, or in the sense that they are directly contradicted by other "precedents." In 1953 Lew Orgel aptly characterized the field in his treatise as "The dark corner of the law." When I wrote my first law review article in 1969, the field was already overflowing with scholarly invective (see collected quotes in 6 Cal. Western L. Rev. at 58), and things have only grown worse with the passage of time (see 36 Urban Lawyer at 702-703). Enjoy.

The best characterization of eminent domain law is unwritten. It came from the late Bert Burgoyne, a great condemnatuion lawyer in Detroit, who said: "The problem with this field is that liberal judges don't believe in private property, and conservative judges don't believe in making the government pay. So between them you've got a hard row to hoe." If you think that's hyperbole, be advised that the California Supreme Court has opined explicitly that it is its duty to keep condemnation awards down, lest "an embargo" on public works be declared. In contrast, in tort law, the voicing of such iseas at trial is deemed to be misconduct of counsel requiring reversal.

So yes, Thomas was right in Kelo. So what? The chances of getting the Magnificent Nine to sit down and reflect on this field of law in any kind of coherent way that is respectful of prevailing legal doctrine are about the same as the chances of me flying to Washington by flapping my arms. They don't know the field, they don't know that they don't know -- and above all, they don't much care about anything other than the outcome of the case before them at the moment. My favorite is the juxtaposition of Rehnquist's majority opinion in Fuller and his dissent in Almota -- both filed on the same day. There is some evil magic about this field of law that causes otherwise brilliant people to say silly things, and causes uninformed people to don the mantle of mavenhood. But hey man, all that makes condemnation lawyers prosperous, so why should I complain?

I have a law review article coming out presently, that deals with the disparity of treatment of condemnees (direct and inverse) as opposed to the treatment of other litigants. It's entitled "[Un]equal Justice Under Law." Please read it when it comes out, or let me have your mailing address and I will send you a reprint when it becomes available.

Last but not least, I stick to my guns. The core of the Berman and Midkiff holdings WAS the elimination of social harms, not the reuse of the taken land which was manifestly private. I didn't say it -- the Court did (I'll have to dig up the citation for you if you want). To that extent Kelo WAS novel. Further your affiant sayeth naught.
1.17.2008 12:43pm
loki13 (mail):
Gideon,

Thank you for your clarification. I think we will have to agree to disagree on the novelty of Kelo; in my mind, it was a precedent-driven decision, with the outcome being determined by the deference given to the legislative body. I find the dissent by O'Connor, trying to distinguish the precedential cases, similar to the old saw "But the previous case occurred on a Tuesday... this case happened on a Wednesday!"

In the end, it comes down to a normative question- do we want incredibly strong 'civil liberties' protection for property (Thomas), or do we believe that a democratically elected legislature can do ED (with just compensation), with the remedy being the ballot box? Fascinating issue, in that it reverses the usual left/right dichotomy for rights, not to mention incorporation. I hope that we can find further research into true public takings in the early history of America (as has been done so successfully with the 2d Am.) as opposed to looking in Thomas's old dictionary for answers.

Anyway, I'll be looking for your article.
1.17.2008 2:20pm
Gideon Kanner (mail):
Let us read then. This is not I that is speaking; their Lordships are:

"In Midkiff we upheld land reform legislation which authorized condemnations for the specific purpose of transferring ownership to another private party, in order to eliminate a land oligopoly. In Berman we permitted land condemnations which contemplated reselling the land to redevelopers, as part of a plan to restore dilapidated sections of the District of Columbia. In both Midkiff and Berman, as in the present case, condemnation resulted in the transfer of ownership from one private party to another, with the basic use of the property by the government remaining unchanged." National R.R. Passenger Corp. v. Boston &Maine Corp, 503 U.S. 407, 422 (1992)

This time for sure FYASN.
1.17.2008 5:32pm
loki13 (mail):
Gideon,

Again, I think you are concentrating on the wrong aspects of the cases. The ability of the government to seize non-blighted land is not in dispute; see, for example, highways.

What becomes an issue is when the private land is taken and given to other private concerns. Sometimes it is non-controversial- common carriers, such as railroads come to mind. Other times it is of minimal controversy- as in a stadium. The question is- what deference do we give to a legislature to determine the 'public use' (or comprehensive development scheme, as the case may be) that is allowed? Previous case law showed that the land did *not* have to be designated as blighted. But does any transfer from one private entity to another to another that increases the tax base (a public use) pass constitutional muster?

Again, you can take the Thomas position and believe the precedent is wrong. But I think the O'Connor position (precedent can be distinguished) is, well, beyond silly.
1.17.2008 9:30pm
Gideon Kanner (mail):
Loki:

You have taken your nom de plume from the Norse god of mischief and true to that name you are inciting me to riot, and causing me to break my promise to say no more.

By bringing railroads etc. into the discussion you are committing the most fundamntal (and alas, very common) gaffe in this field. Railroads etc. are as public a use as it can get. They are common carriers so EVERYBODY can ride or ship stuff on them. They and public utilities are a lot more public that some government facilities (e.g. military installations). Also, they dedicate their facilities to public use and are highly regulated. Their status as private investor owned has nothing to do with the "public use" problem, because under the constitutional language it is the use not the user that has to be public. Got it? You yourself can condemn land for legislatively specified uses, such as an access road to your land, to take the most common example.

Nobody -- that's right, nobody, at least no informed person (which leaves out a lot of law professors) -- contends that modern redevelopment involves public use. Surprised? It's true. To stuff the redevelopment square peg into the round hole of the "public use" limitation, Wild Bill Douglas had to perform the linguistic feat of saying that "public use" doesn't mean public use; that it means "public purpose" or "public benefit" etc. If you want to see the doctrinal havoc that created, read my article, Kelo v. New London: Bad Law, Bad Policy and Bad Judgment, 38 Urban Lawyer 201 (2006), particularly the discussion at pp. 210-212, and also check out the discussion in Ellen Frankel Paul's book cited there.

In Kelo, Stevens went Douglas one better and asserted that "public purpose" is a "more natural" meaning of "public use." Gimme a break! Can you imagine Stevens dropping in on his neighbor and saying. "Hi. Can I purpose your lawnmower?" See id. at 202. Do read that article. If nothing else, I don't write like the typical law review author so you'll find it readable -- I hope.

Finally, as I also point out in that article, if all the fuzzy "public benefit" etc. terms were the proper basis for allowable takings, there would be no distinction between the exercise of the eminent domain power and the police power -- which is exactly what Douglas was forced to say in Berman to reach the result he wanted. But that doesn't pass the straight-face test (even though O'Connor repeated it in Midkiff).

And speaking of O'Connor, though ahe was right in Kelo, in light of her Midkiff performance her overall position was consistent with the bon mot of that great American legal scholar, Yogi Berra, when he said "I didn't actually say everything I said." See generally, The Jurisprudence of Yogi Berra, 46 Emory L. J. 697 (1997). But in fairness to O'Connor, she inserted qualifying language into Midkiff that left a door open to judicial inderdiction of takings for plainly private purposes. Whivch Kelo was.
1.18.2008 11:43am
Jeffrey Toobin (mail) (www):
Hi Eugene,
I just wanted to let you know that I've been reading the posts about my discussion of Kelo in the Nine with great interest. In light of what I've learned, I suspect I'll be making some changes for the paperback. Again, feel free to post this note and let folks know I welcome any other corrections, comments, etc. Cheers, Jeff
1.18.2008 2:04pm