Law Commons^™

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

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 …

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 …

Home As A Legal Concept, Benjamin Barros

Benjamin Barros

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 …

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.

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 …

Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher

Faculty Scholarship

In the summer of 2004, New Haven Mayor John DeStefano, Jr. announced plans to demolish the all-but-derelict New Haven Coliseum and replace it with a publicly financed redevelopment that would include a 300-room hotel. Critics of the plan immediately objected that the hotel-even if it were completed-was a poor public investment, that there was no demand for such a hotel, and that the money could be better spent elsewhere. Some critics pointed to New Haven's own checkered history of major development projects, especially the failed downtown mall and the famously catastrophic Oak Street redevelopment. As of February 2006, the city …

The "Public Use" Of Private Sports Stadiums: Kelo Hits A Homerun For Private Developers, Cristin F. Hartzog

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note briefly discusses the principle of eminent domain and the evolution of the Supreme Court's interpretation of the Takings Clause. Part II analyzes the application of the Court's interpretations of the "public use" requirement of the Takings Clause on the issue of whether it is proper for a state to exercise its power of eminent domain pursuant to a stadium development project. Finally, Part III offers a solution to the conflict between property owners' interests in keeping their land and cities' interests in creating economic growth.

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.

Six Myths About Kelo: Kelo V. City Of New London, Thomas W. Merrill

Faculty Scholarship

Kelo v. City of New London, 125 S. Ct. 2655 (2005), is unique in the modem annals of law in terms of the negative response it has evoked. The initial reaction by lawyers familiar with the case was one of lack of surprise. Within days, however, Internet bloggers, television commentators, and neighbors talking over backyard fences decided that Keio was an outrage. Even Justice Stevens sought to distance himself from his own majority opinion, declaring in a speech to a bar association that he thought the outcome was "unwise," and that he would not have supported it if he were …

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

Matthew Parlow