In response to questions posed by Republican Senator Charles Grassley, Judge Sotomayor made another misstatement about Kelo v. City of New London:
[T]he issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the — the takings clause of the Constitution that requires the payment of just compensation when something is — is condemned for use by the government, whether the takings clause permitted the state, once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose? And so the holding as I understood it in Kelo was a question addressed to that issue.
The problem with this answer is that Kelo didn't simply hold that the state could "contract with a private developer to effect the public purpose" justifying a taking. It held that the state could actually transfer ownership of the land to a private party and that this was a constitutionally permissible "public use" if done for the purpose of promoting "economic development." This is very different from simply hiring a private contractor to do work on public land, such as hiring a private construction firm to build a publicly owned bridge on government-owned land. Moreover, the "contract" metaphor is misleading, since the new private owners of condemned land in Kelo and other similar cases were not legally required by contract (or anything else) to actually provide any "economic development" - the "public purpose" that supposedly justified the condemnations in the first place (I cover this point in detail in this article, pp. 193-97).
The fact that Kelo allows the transfer of ownership to private parties who have no contractual obligation to provide economic development in exchange makes the case very different from merely "contracting with a private developer to effect the public purpose." If the private interest gets full ownership of the condemned land and does not have to provide any economic development in return, the risks of abuse are far greater than if a private entity is merely hired to do work on publicly owned land that it has a contractual obligation to perform.
Related Posts (on one page):
- Sotomayor's Nomination Approved by the Senate Judiciary Committee:
- My Detroit Free Press op ed on Sotomayor and Didden:
- My Testimony on Property Rights at the Sotomayor Confirmation Hearings:
- The Sotomayor Hearings as a Step Forward for Property Rights:
- Sotomayor's Testimony on the Didden Case:
- Another Sotomayor Misstatement of Kelo:
- Sotomayor's Misstatement of Kelo:
- My Op ed On the Property Rights Implications of Judge Sotomayor's Decision in Didden v. Village of Port Chester:
- Nelson Lund on Sotomayor's Second Amendment Decision:
She said Didden was decided on statute of limitations, and Kelo wasn't even relevant to the decision... not at all. End of story. Grassley skittered away.
He may have had her on the environmental case, where she rejected the EPA's cost benefit analysis, and was then overturned by the SC, but Grassley seemed too senile to be able to make the point. Advantage sitting judge over senile old senator.
They should just call the vote right now, today, and save themselves the trouble of putting on this show.
Grassley may have skittered away. But her statement was incorrect, since she did in fact decide the Kelo issue in her opinion, as well. Moreover, the statute of limitations issue was in fact inextricably connected with the Kelo question, a point I discussed in this post.
By education and experience Sotomayor's record exceeds Alito's (unless you think that clerkship confers a lifelong lustre). So are you arguing that Alito was a bigger joke?
My testimony will focus primarily on Sotomayor's decisions rather than on her testimony to the committee. Obviously, formal testimony before the Committee is a different kind of activity than blogging.
Are you saying that only people who participated in Kelo decision are expected to understand it correctly, while this understanding is not required of the lower court judges who decide cases to which Kelo could be relevant?
He did skitter away, and no offense, but your statements on this will mean squat, because if a sitting US senator doesn't say it, it means nothing. Either Grassley can't or he won't say it. Either is very bad.
This Didden case was the one. It was the only point upon which to attack socialist/statist dogma during these hearings, and the miserable old coot senators can't even follow through on that.
Yeah, you discussed Didden SoL in that post, but you're preaching to the converted. Further, somebody's gotta preach to the pagans, and that's these senators' jobs. You'd think a sitting US senator could break down that case into parts and elicit some clear answers, but no.
What a disgusting display. Grassley needs to be gone. What a miserable joke he is.
I'm saying that I don't expect a judicial nominee, when speaking extemporaneously, to be 100 percent correct on all the details of every supreme court cast ever decided.
Care to retract, Professor Somin?
What percentage of errors then should we be prepared to ignore? Not to mention, that Kelo has been discussed a little more lately than "every supreme court cast ever decided" (with the possible exception of Roe v. Wade, errors on which I suppose you would also dismiss under your generous extemporaneous errors quota).
It was neither. The issue was not whether or not the state could contract with a developer to effect a "public purpose" it was whether or not the state could take from A and give to B if it believed that B's ownership would result in greater "economic development".
...or not build anything at all and not suffer any consequences. That's exactly what happened at Fort Trumbull. You can check here
"Every" 1L? The first such are sweating over their bar exam prep right now.
My question was whether the government would have any legal recourse. If they had legal recourse but decided not to exercise it for whatever reason, that's a different issue. But I have a hard time believing the recipient of the property incurred no legal obligations whatsoever.
Legal obligations might make development too risky. What happens if the development plan is no longer profitable? Do you have to keep sinking money into it?
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