Bert Gall of the Institute for Justice Presents an Optimistic Take on Post-Kelo Eminent Domain Reform:
The Institute for Justice, the outstanding libertarian public interest law firm that litigated the Kelo case, has a more optimistic view of post-Kelo eminent reform than I do. They have sent me this analysis by IJ attorney Bert Gall, which criticizes my paper on post-Kelo reform for being too pessimistic. In the interest of promoting debate on this important issue, I have agreed to post Bert's piece. I will reply in my next post, and allow Bert to post a rejoinder, if he so chooses. Here it is:
The Kelo Backlash: A Strong, and Continuing, Response to a Terrible Decision
The Institute for Justice represented Susette Kelo and her neighbors in Kelo v. City of New London. Since the Supreme Court handed down its now-infamous decision in that case, the Institute has, in addition to litigating several new eminent domain challenges, worked with legislators on eminent domain reform, and has monitored closely and analyzed legislative developments. What is absolutely clear is that the Kelo backlash has, in a very short period, achieved significant and substantive results in the political arena. Unfortunately, Ilya's overly pessimistic assessment of those results lacks both completeness and a sense of perspective; as a result, it is skewed in such a way that conforms to, rather than tests, his hypothesis about "political ignorance."
With this post, I want to highlight the real-world legislative results of the Kelo backlash. A complete, up-to-date, tally of reforms shows that, since Kelo, eminent domain reform has been passed in 34 states. Of the reforms that have passed, most have made substantive improvements in state law that will provide a real benefit to home and business owners. (While citizen-sponsored initiatives have been very important, the vast majority of good reforms originated with legislatures.) For example, 17 reforms narrow the definition of "blight," or in the cases of Florida and South Dakota, eliminate “blight” condemnations for private development – an important change since, in most states, Kelo-style takings occur through the use of "blight” designations. Also, 17 reforms require “blight” to be designated on a property-by-property basis rather than an area-wide one. (Since the condemnations in Kelo were not for “blight,” it’s not clear what effect a favorable decision in the case would have had on those laws.) Moreover, several reforms shift the burden of proof in condemnation actions from owners to condemning authorities. Anyone who has litigated an eminent domain case knows that all these kinds of changes represent dramatic improvements for home and small business owners facing the threat of condemnation. Ilya, who has written several excellent amicus briefs opposing the use of eminent domain for private development, surely appreciates the difference that these changes make in the kinds of arguments governments and property owners can make.
Any judgment on the effectiveness of legislative reform in Kelo's wake must be tempered by perspective. That is, one must ask, "What was state law like before Kelo, where is it now, and where is it going?” Before the Kelo backlash, the legal environment in most states was extremely hostile to property owners facing eminent domain for private development. The Kelo decision – in which the Supreme Court held for the first time that economic development is a public use, thereby eviscerating the public use clause of the Fifth Amendment – threatened to make things even worse. Indeed, the practical effect of Kelo for many local governments was for them to accelerate, successfully, the pace of eminent domain abuse before reforms were passed. (That fact doesn’t square with Ilya’s remarkable assertion that Kelo “may have represented a slight tightening of judicial scrutiny of public use issues . . . .”) But, now, the legal environment is much better for property owners in most states. Even “weak” reforms have helped hold the line against a Kelo-driven worsening of state laws. And more strong reforms appear to be on the way. For example, although they failed to pass good reforms last year, Virginia and New Mexico appear on the verge of enacting strong reform legislation, and good legislation is making its way through the state legislatures of Ohio and Texas. All four of these states, along with other states like Alabama – which initially passed weak reform, but then strengthened it – illustrate that there can be more than one bite at the legislative apple for proponents of reform. If the aforementioned reforms go through, 6 of the 8 states with the most private-to-private condemnations from 1998 through 2002 will have good eminent domain reforms; as it stands, 3 of the top 4 already do.
Applying a sense of perspective, and a closer look, makes Ilya's conclusions about several pieces of legislation questionable. Time and space constraints prevent a state-by-state critique, so two examples will have to suffice here. First, South Carolina's constitutional amendment, which was approved by the voters after being sent to them by the legislature, provides some of the strongest defenses against eminent domain abuse in the country. Yet Ilya labels it "ineffective," even though the amendment states that eminent domain may not be used for the purpose or benefit of economic development. More importantly, it requires that “blight” designations must be on a property-by-property basis, and very narrowly defines "blight" as property that both (1) meets certain conditions and (2) as a result of those conditions, poses a threat to the safety and health of the community. Even if there is wiggle room in the first prong of the requirement, there is none in the second. (Notably, Ilya does not argue that “safety” could be interpreted broadly.) Thus, South Carolina voters and the legislature have passed a strong constitutional amendment. Ilya also labels the Wisconsin legislation "ineffective," but it is certainly a vast improvement over where the law stood before because it does protect the owners of single-family homes from bogus "blight" condemnations. Of course, it would have been better for all multi-family homes and businesses to be included, but the protection the legislation provides for the owners of single-family homes is, as Ilya concedes, considerable. And that protection, now that it has been established for single-family residential properties, may very well be extended to all multi-family residences and businesses in the future. Thus, an "ineffective" label is unfair.
In sum, post-Kelo reform efforts have been far more successful than Ilya recognizes. When Kelo was handed down, many people's initial reaction was despair. After all, as Justice O’Connor wrote in her dissent, “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” But despair gave way to a powerful backlash that has, in less than two years, improved legislative protections against eminent domain abuse in most states. (It has also led to widespread public revulsion at private takings, as well as two state supreme court decisions that have explicitly rejected the Kelo holding – plus two more that question it). To be sure, more must be done so that every American is protected. States without reform need to act, and many states need to improve their reforms. In states, like New Jersey, where governments remain on an eminent domain binge and reform is a long-term proposition, litigation must continue. But the large amount that's been accomplished so far, as well as the good work that's being done right now, should not be obscured by an analysis that is informed more by theory and pessimism than reality.
Bert Gall is a senior attorney at the Institute for Justice, where he litigates eminent domain abuse cases on behalf of home and small business owners.
NOTE: For the benefit of conflict of interest mavens, I have documented my own connections to the Institute for Justice in previous posts. See, e.g., here.
The State of Post-Kelo Reform - A Reply to Bert Gall:
In my previous post, I put up a critique of my paper on post-Kelo eminent domain reform by Bert Gall, an attorney with the Institute for Justice. IJ has done outstanding work protecting property rights in both the legal and political arenas, and I am sorry to have to disagree with them. However, I do not believe that the "Kelo Backlash" has been as effective as Bert claims, nor do I agree that his arguments refute my paper. In this post, I will address his claims that the Kelo backlash headed off a preexisting trend towards an increase in eminent domain abuse and that most post-Kelo laws have been effective. His more specific critique of my analysis of the Wisconsin and South Carolina reform laws is probably of lesser interest to VC readers, and I may address it in a later separate post if time permits.
I. Did the Kelo Backlash Head off a Preexisting Negative Trend in Eminent Domain Law?
Bert argues that "[e]ven 'weak' reforms have helped hold the line against a Kelo-driven worsening of state laws." I agree with Bert that, in most states, pre-Kelo eminent domain law was a terrible deal for property owners. However, there is little evidence that things were getting worse after Kelo than they had been before. Bert claims that the Kelo decision itself emboldened state and local governments to condemn more property than previously. However, Kelo did not give condemning authorities more discretion than they enjoyed under previous US Supreme Court precedent. Before Kelo, the leading case in this field was Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which allowed government to undertake any condemnation that was "rationally related to a conceivable public purpose," without any need to prove that the "purpose" would actually be achieved. Midkiff, 467 U.S. at 241. It is difficult to imagine a more permissive rule than this one, and in fact Kelo did not establish a more permissive new standard. Indeed, as I argue in this article, Kelo may have very slightly increased protection for property rights relative to the virtual blank check for takings endorsed in Midkiff.
That doesn't prove that Kelo was rightly decided, as some of the decision's defenders claim. Consistency with precedent is no virtue if that precedent itself is deeply flawed, as Midkiff was; in Kelo, the Supreme Court wasted an opportunity to cut back on the abuse of constitutional property rights sanctioned by its earlier mistaken holdings. For that, the decision deserves severe criticsm. However, Kelo did not begin a new negative trend that the political backlash against it somehow headed off.
As evidence that Kelo did lead to a new negative trend, Bert claims that the decision caused an increase in condemnations, citing this IJ study. The study claims that Kelo opened the "floodgates" to new condemnations, and does indeed document a large number of dubious post-Kelo takings. However, its methods rely heavily on press accounts for data, and it is likely that abusive condemnations received far more press coverage after Kelo focused attention on the issue than before. I suspect that the new IJ study reflects increased press coverage of eminent domain abuse more than an increase in the incidence of abuse itself. Since Kelo did not give state and local governments any more power than they had before, this is a more likely explanation than Bert's argument. It is theoretically possible that state and local officials expected the property owners to lose in Kelo and therefore were restraining themselves until their side won an unexpected victory. However, prior to Kelo, most experts expected the government to win, and the most surprising aspect of the decision was not the outcome but the narrowness of the 5-4 margin.
In sum, if Bert wants to demonstrate the effectiveness of post-Kelo reform, he must prove that the new laws have meaningfully restricted the pre-Kelo powers of condemning authorities. The new laws almost certainly did not prevent a Kelo-inspired trend towards greater use of condemnation, because there was probably no such trend in the first place.
II. Do Post-Kelo Reform Laws Effectively Restrict Eminent Domain?
As I explain in my paper, some of the post-Kelo reform laws do indeed effectively curb the power of condemning authorities. By my count, some 15 states have enacted post-Kelo reform laws that I categorize as "effective" in the sense that they either ban Kelo-style "economic development" takings or significantly restrict them relative to preexisting law (see Table 4 in my paper). On the other hand, some 20 states and the federal government have enacted ineffective reforms that impose virtually no new restrictions on the power to condemn property, and 14 have enacted no reforms at all. Bert claims that:
17 reforms narrow the definition of "blight," or in the cases of Florida and South Dakota, eliminate “blight” condemnations for private development – an important change since, in most states, Kelo-style takings occur through the use of "blight” designations. Also, 17 reforms require “blight” to be designated on a property-by-property basis rather than an area-wide one . . . Moreover, several reforms shift the burden of proof in condemnation actions from owners to condemning authorities.
Because Bert doesn't identify the states he has in mind (with the exception of Florida and South Dakota), it is difficult to assess these claims or even to tell whether he is actually disputing my conclusions or not. Florida and South Dakota did indeed pass two of the most sweeping post-Kelo reform laws in the country, and I point this out in my paper (pg. 26). It is also true that many post-Kelo reform laws "narrow" the definition of "blight"; "blight" designations are a prerequisite to one type of often-abused condemnation. However, a "narrower" definition of blight is not a meaningful restriction on eminent domain if the new definition is still broad enough to encompass virtually any property. As I discuss in detail in my paper (pp. 15-20), in some 15 states that have passed post-Kelo reforms, the new definition of blight is either exactly the same as the old or still broad enough to render virtually any property the government might choose to seize "blighted." Similarly, requiring blight to be designated on a "property by property" basis has little value if virtually any property can still be so designated. Shifting the burden of proof to the government will have little effect if what the government needs to prove is extremely easy to demonstrate. Under the broad definitions of blight retained in many state post-Kelo laws, all that the government need show is that the area in question is an obstacle to "sound growth" or a "social or economic liability," both of which can be said for virtually any property if the government has a proposed use for the property that might increase growth or otherwise benefit the local economy.
Bert also argues that if several states now considering new post-Kelo reform measures pass effective laws, the situation will greatly improve. That may well be true, but many effective post-Kelo reforms have either been watered down or completely rejected by state legislatures in the past. It would be unwise to count our chickens before they hatch, which is why I restricted my analysis to laws that have actually been enacted. Finally, Bert notes that three of the four states with the most private-to-private condemnations between 1998 and 2002 have passed effective reforms. This is true, in so far as it goes, and I noted it in in my paper (Table 5, pg. 13). However, one of those three states (Pennsylvania) has significantly watered down its reform by exempting condemnations taking place in Philadephia and Pittsburgh for the next five years; these are the cities where most of Pennsylvania's Kelo-like takings in fact occur (ibid., pp. 27-28). Michigan's new law to a large extent builds on a 2004 earlier court decision that had already forbidden "economic development" takings (though it does make improvements in other areas). Thus, these two laws represent only modest improvements, though they are significant enough to count as "effective" under the generous coding rules I adopted in my paper. Even more importantly, as I summarized in Table 5 of the paper, 14 of the 20 states that, according to an IJ study, had the highest incidence of abusive condemnations in 1998-2002 have adopted ineffective reform laws or none at all. The same is true of 15 of the 20 states with the largest numbers of "threatened" condemnations (ibid., pg. 44).
III. Areas of Agreement.
I end on a more positive note. Bert and I probably agree on more than we disagree. Depending on how one interprets his statements, it is possible that we actually agree on the quality (or lack thereof) of post-Kelo laws in the vast majority of states. Bert also has not disputed my criticism of the flawed reforms enacted by the federal government, such as President Bush's ineffectual executive order on takings. Finally, we agree that Kelo was a terrible decision and that property rights advocates should pursue both legislative and judicial remedies for the situation. Pre-Kelo federal public use law was so bad that there was nowhere to go but up; and the same was true in many states. And we have indeed moved up since Kelo. At the same time, there has been a lot less progress than many expected in the wake of Kelo's massive unpopularity across the political spectrum. My paper documents this shortfall, and tries to explain it.
My friends at IJ worry that reform advocates might give up the fight if it seems hopeless. In my view, we should be at least equally concerned that people will give up because they wrongly assume that the problem has been solved by "reforms" that actually have little or no effect.
Columbia University Continues to Threaten to Use Eminent Domain to Expand into a Nearby Harlem Neighborhood:
Last year, I blogged about Columbia University's threats to use eminent domain to take over some land it covets in a the nearby Manhattanville neighborhood of Harlem. According to this New York Post article by urban development specialist Julia Vitullo-Martin (hat tip Candace de Russy), the University is continuing its threats:
The expansion of Columbia, already the city's seventh largest private employer, would add another 6,900 premium jobs - high pay, with generous benefits and pensions - to the local economy.
And the 17 acres on which the school hopes to build (bordered by 125th and 133rd streets, and by Broadway and Riverside Drive) are largely underused relative to the rest of Manhattan.
The sticking point is plainly Columbia's demand to get it all. Luisa Henriquez, who lives in a city-owned building on 132nd Street, puts it this way: "Columbia moving in is a bad thing because Columbia isn't willing to share."
"We're not going to take [eminent domain] off the table," says Columbia Executive Vice President Robert Kasdin. "We're going to preserve our right to argue to the state that it's in the public interest that they do it."
Yet even the strongest Harlem supporters of the Manhattanville plan, like realtor Willie Kathryn Suggs, balk. "I don't want them invoking eminent domain for private use. It's not right," says Suggs. "The neighborhood will get safer streets and better restaurants. I want that to happen. But under the rules. If they want more property they should buy it fairly, like anyone else."
And the opponents are ferocious. Manhattanville's largest private property owner, Nick Sprayregen, President of Tuck-It-Away Self-Storage, says that Columbia wants four of his five buildings . . . "My father built this business, which I intend to hand onto my children," he says. "We worked hard for the neighborhood, and intend to be part of its success.
"I won't move," Sprayregen insists. "But Columbia wants it all - 100 percent of everything. They have no desire for nuance, for compromise, for diversity."
The article notes that Columbia plans to argue that the area in question is "blighted." Under New York law eminent domain law, which is perhaps the most hostile to property rights of any in the country, almost any area can be declared blighted - and thereby subject to condemnation - no matter what its condition. As I noted in my original post, just a few years ago a New York appellate court held that Times Square was blighted, thereby permitting the condemnation of some property there for transfer to the New York Times for the purpose of building a new headquarters for the New York Times. Unfortunately, the use of blight standards broad enough to cover virtually any property is far from unique to New York, as I explained in more detail in this August 2006 Legal Times article. The retention of broadly defined blight statutes also undermines many of the reform laws enacted in the wake of Kelo v. City of New London (See my paper on post-Kelo reform, pp. 15-21).
Three other aspects of the Columbia/Harlem situation are symptomatic of broader flaws in eminent domain policy. First, this is just one of many cases where the power of eminent domain is used by wealthy and politically influential interests (in this case Columbia), at the expense of the poor and politically weak (here, the mostly poor and minority residents of Manhattanville). Second, as Columbia's lawyers surely know, even the mere threat of eminent domain often enables powerful interest groups to acquire land at a lower price than the owner would be willing to accept on the open market. For this reason, the misuse of eminent domain for the benefit of powerful interest groups is far more common than we might think if we focus only on takings that are actually carried out. Finally, like many would-be beneficiaries of eminent domain, Columbia claims that it needs to acquire 100% of the area in question and that eminent domain may be the only way to do so. Both claims are dubious, especially the latter. As I explain in some detail in this forthcoming article (pp. 21-29), there are numerous private sector alternatives to condemnation in cases where a developer seeks to acquire land for uses that really are more valuable than those of the present owners.
Perhaps Columbia's planned expansion really would benefit the local economy more than the present uses of the land in question. If so, it is highly likely that those benefits could be achieved without resorting to condemnation or using the threat of eminent domain to intimidate property owners into selling at a low price. And we should also keep in mind the fact that many "blight" and economic development condemnations actually damage local economies far more than they benefit them, as happened in the notorious 1981 Poletown condemnations, and also in Kelo v. City of New London (where some $80 million in public funds has been spent on a development project for little or no return). Once Columbia takes over the condemned land, it will not be under any legal obligation to actually provide the 6900 new jobs and other economic benefits that it is currently touting. As in many previous such cases, the new owner of condemned land could decide that providing the benefits it promised is not in its interest.
Bert Gall Responds to my Critique of Post-Kelo Reform:
Last week, Bert Gall of the Institute for Justice engaged in a debate on post-Kelo eminent domain reform triggered by my paper arguing that most of the reform laws enacted since Kelo have been largely ineffective. For the earlier posts, see here and here. Bert has submitted the following reply to my arguments, and I have agreed to post it. I will be writing a brief rejoinder:
I thank Ilya for the opportunity to participate in this friendly debate about the status of Kelo reform legislation. For the sake of brevity, I will not comment on his take on Kelo's holding and its real-world impact on eminent domain abuse, although, for the reasons discussed here and here, he's wrong on both counts. Instead, I'll focus on my main concern: Ilya's overly pessimistic take on the status of Kelo-reform legislation. His statement that most eminent domain reforms are "ineffective" is simply incorrect. That was true at the beginning of last week, when the number of eminent domain reforms was 34. And it is true now that the number of reforms has grown to 37, thanks to the legislatures in Virginia, New Mexico, and Wyoming. (If we add the Nevada citizen's initiative, which Ilya counts, but I do not since the voters must approve it again in November of 2008 before it takes effect, the number is 38.) And still more good reforms are making their way through state legislatures (e.g., Texas and Ohio) this year.
Most state reforms that have passed so far are strong. For example, 20 states have either significantly narrowed the definition of "blight" or eliminated the ability of local governments to condemn for "blight." Because bogus "blight" is the principal vehicle for private-use condemnations, these reforms are anything but "ineffective." The states that have enacted these reforms are Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Mexico, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Wisconsin, and Wyoming. There's not adequate space here to discuss each of these state's reforms; for a full explanation and analysis of the reforms in these and other states, check out "Legislative Action Since Kelo," by the Institute for Justice. (It will soon be updated to reflect the new laws that just passed, and IJ is releasing a report card on all passed legislation.) The reason that I critiqued Ilya's analysis of the the South Carolina and Wisconsin legislation in my last post -- something that, tellingly, he does not respond to -- was to demonstrate that his analysis incorrectly counted some good reforms as "ineffective" ones. Moreover, even so-called "ineffective" reforms may prove themselves to be good protections against eminent domain abuse in future legal battles. For example, Colorado's legislation may not be perfect, but it does eliminate the most significant problem with the state's case law: judicial deference toward municipalities' findings of blight. Add in the other positive changes in other state laws described in my previous post (also discussed in "Legislative Action Since Kelo") and it's hard not to conclude that legislative reform efforts -- which, it should be emphasized, have taken place in the short span of less than two years -- have been very successful.
Ilya's paper starts with the premise that "political ignorance" makes getting good reform hard, and ends with the conclusion that most reforms that have passed are weak. The vital middle step between premise and conclusion -- a careful analysis of each reform that has passed, and the improvement it represents -- is where the paper runs into serious trouble. Believe me: we at IJ do not view the legislative process with an unjaundiced eye. And, of course, proponents of reform shouldn't declare victory and go home. But Ilya and others have gone much too far in the opposite direction. I invite him to take a fresh, complete, and up-to-date look at a battle that, in reality, is going far better than his theory predicts.
The State of Post-Kelo Reform - Final Rejoinder to Bert Gall:
Bert's most recent criticism of my analysis of post-Kelo reform focuses on one major point: that the majority of post-Kelo reforms have been effective in curbing eminent domain power. While Bert is right to note that important progress has been made since Kelo (a point I never contested), he still paints a rosier picture than is justified by the evidence.
Even with the recent passage of what I agree are effective reform laws in New Mexico, Virginia, Wyoming, it still remains the case that 22 of the 43 reform laws enacted by 38 states and the federal government have been largely ineffective, in the sense that they impose no meaningful new constraints on the power of government to condemn property. This total includes the forty laws analyzed in my paper, plus the three passed in recent weeks, but excludes one or two ineffective laws passed in the aftermath of Kelo, which have since been superseded by effective ones (e.g. - in Alabama). Far more important than the raw total of effective and ineffective laws is the fact (noted in my previous post, as well as in my paper), that very few of those states that engage in Kelo-style takings the most have enacted effective reforms. Even after Virginia's recent enactment of an effective reform law, thirteen of the twenty states that recorded the most private-to-private condemnations from 1998 to 2002 according to an Institute for Justice study have enacted ineffective reforms or none at all (see Table 5 of my paper). This is also true of fourteen of the twenty states with the highest numbers of "threatened" condemnations for private owners, according to IJ (ibid., pg. 44). To understand the true state of post-Kelo reform, it is essential to recognize that many of the strongest new laws have been enacted by states with little or no record of eminent domain abuse to begin with. Tellingly, two of the three most recent states to enact effective reforms (Wyoming and New Mexico) recorded no condemnations for private development at all, according to IJ. For example, IJ described New Mexico as:
. . . one of a handful of states that have no reported condemnations for private parties
between 1998 and 2002. Its local governments have respected constitutional limits on government power, and home and business owners can feel secure in the knowledge that their rights in this area will be respected.
By contrast, several large states with extensive records of abuse - including California, New York, New Jersey, and Texas, among others - have enacted either no reforms at all or ineffective ones. Reforms in states with little or no preexisting record of abuse are not completely useless. Such laws do serve to prevent future abuses, even if the possibility of such is slight. However, they cannot make up for the lack of success in most states with records of serious abuse.
Bert lists 20 states that have enacted reforms restricting the definition of "blight." I agree with him that such limits are extremely important, and have argued for their necessity myself. In fact all but three of these states (Utah, Wisconsin,and South Carolina) are listed as states with effective reforms in my paper. Of the exceptions, Utah is not included because it passed a law forbidding blight condemnations even before Kelo was decided, so its law is not part of the Kelo backlash proper; indeed, as the Institute for Justice recently noted, Utah has just engaged in some backsliding from its pre-Kelo achievements. On Wisconsin and South Carolina, I stand by the analysis of these two states' laws in my paper. The issues are technical in nature, so I will not go into them in detail here, though I may do so in a later post if there is enough reader interest in the subject. Bert also mentions the Colorado law (whose effectiveness he defends to a limited degree). He is right to note that the law eliminates judicial deference to local governments' determinations of blight, but wrong to suppose that this will make a big difference. As I explain in my paper (pp. 16-17), Colorado's definition of "blight" is so broad that virtually any area can be declared blighted, whether judges are deferential or not.
As I noted in my previous post, it is still not clear how many state laws Bert and I actually disagree about. Depending on how one interprets his posts, the figure may be as low as three (Wisconsin, South Carolina, and - to a lesser degree - Colorado). It is also not clear whether he accepts my conclusion that most of those states with the worst abuses have enacted ineffective reforms or none at all. Bert does seem to question with my view that political ignorance is a principal reason for the large number of ineffective reforms, but does not present any alternative explanation or explain why mine is wrong.
I end on this point of agreement between us: Bert is undoubtedly correct to say that there has been significant progress, and he is also right to note that "proponents of reform shouldn't declare victory and go home."
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.