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Articles 1 - 30 of 31
Full-Text Articles in Law
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Articles
Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …
The Property Rights Revolution That Failed: Eminent Domain In The 2004 Supreme Court Term, David Schultz
The Property Rights Revolution That Failed: Eminent Domain In The 2004 Supreme Court Term, David Schultz
Touro Law Review
No abstract provided.
Planning As Public Use?, Nicole Stelle Garnett
Planning As Public Use?, Nicole Stelle Garnett
Nicole Stelle Garnett
This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible private takings from presumptively valid public ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power …
Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin
Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin
Patricia E. Salkin
No abstract provided.
Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin
Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin
Patricia E. Salkin
No abstract provided.
U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin
U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin
Patricia E. Salkin
No abstract provided.
Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero
Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero
Patricia E. Salkin
Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to …
Measure 37 And A Spoonful Of Kelo: A Recipe For Property Rights Activists At The Ballot Box, Patricia E. Salkin, Amy Lavine
Measure 37 And A Spoonful Of Kelo: A Recipe For Property Rights Activists At The Ballot Box, Patricia E. Salkin, Amy Lavine
Patricia E. Salkin
No abstract provided.
Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin
Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin
Patricia E. Salkin
In Kelo v. City of New London, the U.S. Supreme Court ruled that the use of eminent domain for economic development is a permissible“public use” under the Takings Clause of the Fifth Amendment. The decision proved controversial, as many feared that it would benefit large corporations at the expense of individual homeowners and local communities. Shortly thereafter, numerous states introduced legislation limiting the use of eminent domain.This article surveys those state initiatives that have been signed into law following the Court’s decision in Kelo.
Beware Of Wooden Nickels: The Paradox Of Florida's Legislative Overreaction In The Wake Of Kelo, Ann Marie Cavazos
Beware Of Wooden Nickels: The Paradox Of Florida's Legislative Overreaction In The Wake Of Kelo, Ann Marie Cavazos
Journal Publications
This article addresses Florida's reaction to the United States Supreme Court decision in Kelo v. City of New London. In Kelo, the Court provided a more expansive view of "the public use" of the Fifth Amendment Takings Clause to include taking property from one private owner and transferring it to a corporation or non-private citizen when the transfer is deemed by the lawmakers to be in the public good or for a public purpose. Florida, together with several other states, concluded that such eminent domain takings, while constitutionally permissible, offend the states' sense of fair play as it relates to …
2008 Planetizen Blog Posts, Michael Lewyn
2008 Planetizen Blog Posts, Michael Lewyn
Michael E Lewyn
Exclusionary Eminent Domain, David A. Dana
Exclusionary Eminent Domain, David A. Dana
Faculty Working Papers
This Article explores the phenomenon of "exclusionary eminent domain" – the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling "exclusionary eminent domain" are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, …
A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin
A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
Focusing on Delaware, this article will argue that the United States Supreme Court's decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as …
Kelo V. City Of New London: A Reduction Of Property Rights But A Tool To Combat Urban Sprawl, Gregory V. Jolivette Jr.
Kelo V. City Of New London: A Reduction Of Property Rights But A Tool To Combat Urban Sprawl, Gregory V. Jolivette Jr.
Cleveland State Law Review
This Note will analyze the two opposing interests of property owners and of cities in the context of the Supreme Court's Public Use Clause jurisprudence and show that while the Court's decision in Kelo may have diminished property rights, the decision could render an overriding positive impact on combating urban sprawl. Part II defines urban sprawl and identifies some of its associated costs. Part III briefly describes Public Use Clause jurisprudence prior to the Supreme Court's ruling in Kelo. Part IV discusses the Court's opinion in Kelo and Justice Kennedy's concurrence. Part V examines the substantial criticism of Kelo and …
Planning As Public Use?, Nicole Stelle Garnett
Planning As Public Use?, Nicole Stelle Garnett
Journal Articles
This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible private takings from presumptively valid public ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power …
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
The Restitutionary Approach To Just Compensation, Tim Kowal
The Restitutionary Approach To Just Compensation, Tim Kowal
ExpressO
In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …
Who Will Redevelop Redevelopment?, Tim Kowal
Who Will Redevelop Redevelopment?, Tim Kowal
ExpressO
Although California’s redevelopment law is among the strictest in the nation, from a layperson’s perspective, redevelopment agencies (RDAs) appear to be no more obstructed from their projects in California as they would be in, say, Connecticut. This article addresses a sort of “tragedy of the commons” problem applied to redevelopment: If redevelopment powers are “over-harvested” such as to instigate serious political revolt against them, they will become barren and useless, and will no longer be available for the purposes for which they were intended and for which they are still needed. Even assuming that redevelopment is efficacious and necessary, redevelopment …
Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp
Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp
ExpressO
Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …
The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly
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 …
Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin
Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin
Scholarly Works
In Kelo v. City of New London, the U.S. Supreme Court ruled that the use of eminent domain for economic development is a permissible“public use” under the Takings Clause of the Fifth Amendment. The decision proved controversial, as many feared that it would benefit large corporations at the expense of individual homeowners and local communities. Shortly thereafter, numerous states introduced legislation limiting the use of eminent domain.This article surveys those state initiatives that have been signed into law following the Court’s decision in Kelo.
Measure 37 And A Spoonful Of Kelo: A Recipe For Property Rights Activists At The Ballot Box, Patricia E. Salkin, Amy Lavine
Measure 37 And A Spoonful Of Kelo: A Recipe For Property Rights Activists At The Ballot Box, Patricia E. Salkin, Amy Lavine
Scholarly Works
No abstract provided.
Kelo: One Year Later, Alan C. Weinstein
Kelo: One Year Later, Alan C. Weinstein
Law Faculty Articles and Essays
June of 2006 marked the first anniversary of the United States Supreme Court's ruling in Kelo v. City of New London, making this a good time to analyze the past year's flurry of activity and assess what it means for local governments. As of mid-May of 2006, more than forty states were considering legislation in reaction to the Kelo ruling, and fifteen have already enacted such legislation.
Unintended Consequences: Eminent Domain And Affordable Housing, Matthew J. Parlow
Unintended Consequences: Eminent Domain And Affordable Housing, Matthew J. Parlow
Matthew Parlow
Fallout From Kelo: Ruling Spurs Legislative Proposals To Limit Takings, John R. Nolon, Jessica A. Bacher
Fallout From Kelo: Ruling Spurs Legislative Proposals To Limit Takings, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The 2005 Supreme Court decision in Kelo v. City of New London has galvanized much unwarranted controversy over governmental authority to condemn private property. A legislative reaction throughout the country has focused on limiting governmental condemnation authority in order to encourage economic development. This article discusses some of the specific pros and cons of reactionary legislation by both the federal and New York legislature.
U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin
U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin
Scholarly Works
No abstract provided.
Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher
Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The United States Supreme Court’s decision in Kelo v. City of New London, has spurred national debate, as many people portray the court’s decision as a damaging blow to private property rights. In Kelo, the court confirmed local government’s ability to condemn property in an area designated as blighted by the state, in order to encourage economic development. This article highlights several positive examples of this sort of condemnation in New York case law, where the public interest was served by economic redevelopment. The article goes further, to distinguish several legal decisions from Kelo, where courts invalidated condemnations upon a …
Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin
Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin
Scholarly Works
No abstract provided.
Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero
Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero
Scholarly Works
Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to …
Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin
Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin
Scholarly Works
No abstract provided.