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2006

Property Law and Real Estate

Kelo

ExpressO

Articles 1 - 6 of 6

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 Oct 2006

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 …


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

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 Sep 2006

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 Aug 2006

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 …


Who Will Redevelop Redevelopment?, Tim Kowal May 2006

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 …


The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly Mar 2006

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 …