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Full-Text Articles in Law
The Police Power And 'Public Use': Balancing The Public Interest Against Private Rights Through Principled Constitutional Distinctions, Christopher D. Supino
The Police Power And 'Public Use': Balancing The Public Interest Against Private Rights Through Principled Constitutional Distinctions, Christopher D. Supino
ExpressO
The Supreme Court’s 2005 decision in Kelo v. City of New London sparked nationwide outrage. The American public was shocked to learn that the Fifth Amendment’s Taking Clause could be interpreted to allow the government to seize a non-blighted residence and convey it to another private party to help facilitate a development project. Yet, contrary to popular belief, the Kelo decision did not mark a significant departure from the Court’s early eminent domain jurisprudence. This article traces the judicial history of the Public Use Clause and the police power of the states, and demonstrates the Court’s historical inability to clearly …
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 …
A Common Tragedy: Condemnation And The Anticommons, Robert L. Scharff
A Common Tragedy: Condemnation And The Anticommons, Robert L. Scharff
ExpressO
Abstract: Economic development of land may be suboptimal where multiple parties have the legal right to exclude use of the property in question. Michael Heller labeled this phenomenon the ‘anticommons.’ It has been argued that condemnation of private property for economic development is a potentially efficiency-enhancing solution to the anticommons problem. Until recently, this argument was largely academic. However, with the recent Supreme Court decision in Kelo v. City of New London, condemnation for economic development is now a valid policy choice. In this paper, I argue that the economic models used to justify condemnation are fundamentally flawed and that …
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 …
Desperate Cities: Eminent Domain And Economic Development In A Post-Kelo World, Asmara Tekle Johnson
Desperate Cities: Eminent Domain And Economic Development In A Post-Kelo World, Asmara Tekle Johnson
ExpressO
Kelo v. City of New London unleashed an unprecedented legislative response when the Court upheld the use of eminent domain for private economic development as consistent with the Takings Clause of the Fifth Amendment. By exhibiting an extreme deference to the legislative branch and failing to consider the current model of economic development, in which “desperate” cities have seen their economic bases contract and have embarked on fervent urban revitalization campaigns as a result, the Kelo Court failed to take into account the immense influence that large corporate interests wield in the legislature. This influence is generally exercised to the …
Home As A Legal Concept, Benjamin Barros
Home As A Legal Concept, Benjamin Barros
ExpressO
This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …