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Articles 1 - 23 of 23
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 …
Baltimore V. Valsamaki: The Maryland Court Of Appeals' Response To Kelo, Jeff Shaw
Baltimore V. Valsamaki: The Maryland Court Of Appeals' Response To Kelo, Jeff Shaw
Legal History Publications
In the years following the Supreme Court’s controversial decision in Kelo v. New London, state judges and legislators across the country responded with a tidal wave of reform to state eminent domain law. While legislative reform efforts largely floundered in the Maryland General Assembly, the Maryland Court of Appeals, in the case of Baltimore v. Valsamaki, curbed the City of Baltimore’s use of quick-take condemnation procedures, imposed additional planning requirements on condemning authorities, and emphasizing the fact that property rights are fundamental constitutional rights. This article will begin with an examination of quick-take procedures and the reasons why …
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 …
Rebuilding The Public-Private City: Regulatory Taking's Anti-Subordination Insights For Eminent Domain And Redevelopment, Audrey Mcfarlane
Rebuilding The Public-Private City: Regulatory Taking's Anti-Subordination Insights For Eminent Domain And Redevelopment, Audrey Mcfarlane
All Faculty Scholarship
The eminent domain debate, steeped in the language of property rights, currently lacks language and conceptual space to address what is really at issue in today's cities: complex, fundamental disagreements between market and community about Development. The core doctrinal issue presented by development is how can we acknowledge the subordination of citizens who happen to live in areas that are attractive to wealthier citizens. In particular, how should we address the political process failure reflected in the privatized methods of decisionmaking that typify redevelopment? The conceptual language and analytical construct for appropriately addressing these issues come from critical race theory …
Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly
Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly
Journal Articles
Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is pretextual. This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site …
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, …
In Search Of Robin Hood: Suggested Legislative Responses To Kelo, Mark Seidenfeld
In Search Of Robin Hood: Suggested Legislative Responses To Kelo, Mark Seidenfeld
Scholarly Publications
No abstract provided.
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 …
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 …
The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler
The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler
Faculty Publications
This Article is the first academic paper to systematically consider the environmental impact of the Supreme Court's decision in Kelo v. City of New London and of economic development condemnations more generally. Kelo upheld economic development takings - condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. The decision stands in sharp contrast to the Michigan Supreme Court's ruling in County of Wayne v. Hathcock, which forbade the use of eminent domain for economic development.
Part I briefly explains the rationales of the …
Kelo V. City Of New London: Supreme Court Refuses To Hamstring Local Governments, James C. Smith
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 …
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.
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.
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
Journal Articles
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 generally able to purchase property through secret buying agents. The availability of these undisclosed 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 thus publicly known in advance. Second, while the …
The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett
The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett
Journal Articles
This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners …
Why Kelo Is Not Good News For Local Planners And Developers, Daniel H. Cole
Why Kelo Is Not Good News For Local Planners And Developers, Daniel H. Cole
Articles by Maurer Faculty
When the Supreme Court announced its 2005 decision in Kelo v. City of New London, few legal scholars were surprised at the outcome, which was premised on precedents extending back to the middle of the 19th century. Legal scholars were surprised, however, by the intense political reaction to Kelo (fueled substantially by Justice O'Connor's hyperbolic dissent), as property-rights advocates, legislators (at all levels of government), and media pundits assailed the ruling as a death knell for private property rights in America.
Kelo's combination of relative legal insignificance and high political salience makes it an interesting case study in cross-institutional dynamics, …
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.
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.