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Justice Thomas' Kelo Dissent, Or, "History As A Grab Bag Of Principles", David L. Breau

ExpressO

In Kelo v. City of New London, the Supreme Court held 5-4 that creating jobs and increasing tax revenues satisfy the Fifth Amendment’s requirement that property be "taken for public use." Justice Thomas joined the dissenters, but authored a separate opinion arguing that the Public Use Clause was originally understood as a substantive limitation that allowed the government to take property only if the government owns, or the public actually uses, the taken property. This article demonstrates that much of the historical evidence that Justice Thomas provides in his dissent to support a narrow original understanding of public use in …

The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

ExpressO

This article provides a rationale for understanding and interpreting the “public use” requirement within eminent domain law. The rationale is based on two factors. First, while the government often needs the power of eminent domain to avoid the problem of strategic holdout, private parties are usually able to purchase property through secret buying agents. The availability of these buying agents makes the use of eminent domain for private parties unnecessary (and indeed, undesirable). The government, however, is ordinarily unable to make secret purchases because its plans are subject to democratic deliberation and known in advance. Second, while the use of …

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

ExpressO

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

Economic Regulation In The United States: The Constitutional Framework, Mark C. Christie

University of Richmond Law Review

The United States of America is well-known (and occasionally well-liked or loathed) as the world's largest free-market capitalist nation. Indeed, many assume that since the United States for more than two centuries has had an economic system based on liberal principles, Adam Smith's "invisible hand" of capitalism must have been embedded in the United States Constitution from the beginning of the American republic. Yet government at all levels in the United States has historically exercised significant regulation of economic and commercial activity-regulation inconsistent with laissez-faire capitalism. The purpose of this article is to consider several questions: (1) what are the …

A Theory Of Government Damages Liability: Torts, Constitutional Torts, And Takings, Lawrence Rosenthal

ExpressO

Theories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government’s objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As …

Kelo V. City Of New London: Supreme Court Refuses To Hamstring Local Governments, James C. Smith

Popular Media

The Court's decision last term in Kelo v. City of New London, 125 S.Ct. 2655 (2005), has drawn heavy fire, most of it unmerited. By the narrowest of margins, the Court held that the city could take single-family homes to develop an office park and to provide parking or retail services for visitors to an existing state park and marina. Many observers thought the Court would take this opportunity to display its "conservative" activism by reining in the power of eminent domain. After all, the Court has grown increasingly protective of property rights during the past two decades. See …

The Robin Hood Antithesis – Robbing From The Poor To Give To The Rich: How Eminent Domain Is Used To Take Property In Violation Of The Fifth Amendment, Daniel C. Orlaskey

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Uselessness Of Public Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

The Supreme Court decision of Kelo v. City of New London has been denounced by legal scholars from the entire political spectrum and given rise to numerous legislative proposals to reverse Kelo's deferential interpretation of the Public Use Clause of the Fifth Amendment, and instead, limit the use of eminent domain when taken property is transferred to private hands. In this Essay we argue that the criticisms of Kelo are ill-conceived and misguided. They are based on a narrow analysis of eminent domain that fails to take into account the full panoply of government powers with respect to property. Given …

Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Erin Ryan

South Carolina recently promulgated new guidelines regulating the State’s consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the …

Unintended Consequences: Eminent Domain And Affordable Housing, Matthew J. Parlow

Matthew Parlow