The Volokh Conspiracy

Richmond Times-Dispatch columnist A. Barton Hinkle recently published this piece on a case of eminent domain abuse in Virginia:

As a general rule, progressives do not get worked up about property rights the way conservatives do. This is a mistake — as a case out of Norfolk shows.

To the progressive eye, property is bound up with materialism and wealth and greed and other yucky things. But property is also bound up with some things progressives hold dear. And even progressives were outraged when, in its 2005 Kelo decision, the Supreme Court said governments could take property from the poor and give to the rich.

That is what has been happening in Norfolk, where the city’s Redevelopment and Housing Authority has been using eminent domain to take dozens of pieces of private property for resale to a foundation run by Old Dominion University. The housing authority has been collecting commissions on the sales; the foundation has then been turning the property over to developers for their use as part of a swanky new University Village.

Among those properties is the building that houses Central Radio, whose story was detailed here back in May 2010. Some years ago, Norfolk offered to buy the property for a lowball price of $700,000 (more than a decade before, a developer had offered more than $1 million). Central Radio’s president, Bob Wilson, turned the city down. So the city slapped a spurious designation of “blighted” on the property and condemned it.

Norfolk couldn’t get away with that today. Virginia’s General Assembly has sharply curtailed such abusive use of eminent domain, precisely because of cases such as this one and others like it….

But the legislature’s changes to eminent-domain law included a grandfather clause, allowing Norfolk to proceed. Wilson is naturally cheesed off. He has vented his frustration by putting up on the side of his building a protest banner. (“50 years on this street,” it reads. “78 years in Norfolk. 100 workers. Threatened by eminent domain.” The words “eminent domain abuse” are surrounded by a red circle with a slash through it.)

But Norfolk officials apparently feel it is not enough to take away Wilson’s property. They also are trying to take away his right to free speech, by insisting that his banner violates the city’s sign ordinance….

Hinkle correctly notes that this is just one of several recent cases around the country in which local governments and influential developers not only engaged in dubious takings, but also tried to prevent property owners from speaking out against them. As he also points out, Virginia is one of a minority of states that has enacted strong post-Kelo eminent domain reform that will constrain abusive condemnations in the future. But as I documented in this article, in many other states reform still has a long way to go. Even in Virginia, eminent domain reform will not be fully secure in the long run until it has been incorporated into the state constitution, as well as statutory law.

Because blight and “economic development” takings tend to victimize the poor and politically weak for the benefit of the wealthy and politically powerful, they have generated widespread opposition on the left as well as the right. We will need greater cross-ideological cooperation on this issue to fully address the problem.

This Thursday at noon, I will be speaking at the University of North Carolina Law School on “Property Rights Since Kelo.” Much has happened on both the legislative and judicial fronts in the last few years. Considerable progress has been made in protecting property rights against abusive takings, but much work remains to be done in many states. University of North Carolina law professor Carol Brown – a leading expert on the impact of eminent domain on low-income and minority communities – will comment on my talk, which is sponsored by the UNC Federalist Society.

This may be one of the few events at UNC Law School over the next few days that does not involve either the NCAA tournament or the individual mandate litigation!

The Fordham Urban Law Journal City Square website has posted a debate between NYU Professor Roderick Hills and myself on the the New York Court of Appeals controversial decisions upholding “blight” condemnations in the Atlantic Yards and Columbia University cases. In my 2011 symposium article “Let there Be Blight,” I argued that these takings violated both the New York state and federal constitutions. I especially emphasized the incompability between the court’s decision defining blight so broadly that virtually any area could qualify with the New York state constitutional provision limiting blight condemnations to “substandard and unsanitary areas.” Hills has written a critique of my analysis. My reply is available here.

Hills is one of the leading property and federalism scholars out there, and I always learn from our exchanges. As I explain near the end of my reply, in this case there may be more areas of agreement between us than initially meet the eye.

The Private Property Rights Protection Act of 2012 passed the House yesterday on an overwhelming voice vote. I wrote about the bill in this post. As I explained there, the PRPA is far from a panacea for eminent domain abuse. But it takes a modest step in the right direction by cutting off some types of federal subsidies from local governments that engage in Kelo v. New London-like economic development takings.

This is not the first time that the PRPA passed the House by an overwhelming margin. The same thing happened in 2005, when a previous version of the bill won a lopsided 376-38 vote in the House only to die in the Senate without ever getting to a floor vote. Hopefully, we can avoid a repeat performance this year. But the Senate rarely moves quickly in an election year, and there are plenty of organized interest groups that are likely to lobby the senators to drag their heels until the 112th Congress expires – thereby forcing the bill’s proponents to go back to square one.

In 2006, Ilya and I co-authored “The Green Costs of Kelo: Economic Development Takings and Environmental Protection,” in which we argued that allowing the use of eminent domain for economic development was bad for environmental conservation.  Environmentalist advocates responded with disbelief.  The Community Rights Counsel (the precursor to the Constitutional Accountability Center) went so far as to label our paper the “outrage of the month” and labeled our argument “a skewed view from the libertarian fringe.”   Six years later, however, it appears some environmentalist advocates are coming around to our point of view.

Yesterday, E&E News reported (subscription required) that several major environmental groups are looking to block the use of eminent domain for the construction of portions of the Keystone XL pipeline that are still slated for construction.  In particular, they plan to argue that the use of eminent domain for the pipeline will violate state rules that preclude eminent domain’s use for private economic development.

In a conference call with reporters today, representatives of four environmental organizations — Bold Nebraska, the Natural Resources Defense Council, 350.org and the Sierra Club — said they believe they have a strong legal case against the company on eminent domain issues. The company is seeking to use condemnation power against a north Texas farmer.

The groups’ main argument is that, as a nonpublic entity looking to build a project for profit, TransCanada does not qualify for eminent domain power in most states.

Whatever the merits of the pipeline, it appears that some environmentalists are beginning to recognize that allowing the government to seize private property for the purpose of encouraging private economic development an facilitate environmentally undesirable projects. Indeed, insofar as such efforts are successful at promoting economic growth, the use of eminent domain for economic development necessarily results in more development than would have occurred absent its use. In other words, the use of eminent domain for economic development results in more environmental harm than if the market were left alone. Further, as we noted in our paper, limiting the ability of governments to use eminent domain for economic development, whether through the Constitution or legislative reform, does not preclude most environmentally beneficial uses of eminent domain, such as the eradication of blight or the provision of public goods.

I’m not sure whether any of the environmentalist groups involved in this dispute acknowledge our work, but it’s nice to see them come around to our way of thinking, even if only on this one issue.

In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.

Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:

…

…

[Insert sound of crickets chirping, grass growing, and paint drying].

Not much has changed since then. This is unfortunate because there is much that the federal government can do to prevent harmful takings. Many states have failed to pass effective reform laws, and federal funding often facilitates Kelo-like takings there.

Fortunately, as Christina Walsh of the Institute for Justice explains in this recent op ed, Congress now has another opportunity to rectify its previous omissions:

It has been demonstrated time and again that eminent domain is routinely used to wipe out black, Hispanic and poorer communities, with less political capital and influence, in favor of developers’ grand plans.

It also has been demonstrated that restrictions on eminent domain in no way inhibit economic growth, as the beneficiaries of eminent domain abuse would like you to believe….

Groups across the philosophical spectrum have recognized the need to limit this abuse of power to protect those who are defenseless against the seemingly unstoppable alliance of powerful, deep-pocketed developers and their politician friends. The diverse coalition has included the National Association for the Advancement of Colored People, the League of United Latin American Citizens, the National Federation of Independent Business and the Farm Bureau. It’s safe to say that the coalition also includes more than 80 percent of Americans, as demonstrated poll after poll taken after Kelo.

Despite the evidence that Americans are united against the misuse of eminent domain, Congress has yet to to take even a modest step. A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use….

This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.

It is tragic because this is exactly the kind of centrist reform – uniting minority advocates and small-business interests – where Republicans and Democrats should be able to work together.

Even if it passes, this bill would not end eminent domain abuse or even all federal funding for it. But it would be a valuable step on the right direction. Past history does not bode well for the bill’s prospects in the Senate. And it’s especially difficult to pass legislation during an election year. However, it’s possible that things will be different this time.

For those who worry that federal intervention in this field would undermine federalism, I have addressed that argument in considerable detail here.

My new article “What if Kelo v. City of New London Had Gone the Other Way?” is now available on SSRN. It is part of an Indiana Law Review symposium on “What if? Counterfactuals in Constitutional History.” Here is the abstract:

Kelo v. City of New London is one of the most controversial decisions in U.S. Supreme Court history. The Kelo Court held that the Public Use Clause of the Fifth Amendment allows government to condemn private property and transfer it to other private parties for purposes of “economic development.” This Article considers the question of what might have happened if the Supreme Court decided Kelo v. City of New London in favor of the property owners. Such counterfactual analysis may seem frivolous. But it is, in fact, useful in understanding constitutional history. Any assessment of the impact of a legal decision depends on at least an implicit judgment as to the likely consequences of a ruling the other way. Analysis can be improved by making these implicit counterfactual assumptions clear and systematically considering their implications.

Part I briefly describes the Kelo case and its aftermath, focusing especially on the massive political backlash. That backlash led to numerous new reform laws. However, many of them turned out to be largely symbolic. Part II discusses the potential value of a counterfactual analysis of Kelo. It could help shed light on a longstanding debate over the effects of Supreme Court decisions on society. Some have argued that court decisions have little impact, mostly protecting only those rights that the political branches of government would protect of their own accord. Others contend that this pessimistic view underrates the potential effect of Supreme Court decisions.

Part III considers the possible legal effect of a ruling in favor of the property owners. Such a decision could have taken several potential forms. One possibility is that the Court could have adopted the view advocated by the four Kelo dissenters: that economic development condemnations are categorically forbidden by the Public Use Clause. This would have provided strong protection to property owners and significantly altered the legal landscape. On the other hand, the Court could easily have decided in favor of the property owners on one of two narrower grounds. Such a ruling would have led to much weaker protections for property owners.

Part IV weighs the potential political impact of a decision favoring the property owners. Such an outcome might have forestalled the massive political backlash that Kelo caused. Ironically, a narrow ruling in favor of the owners that did not significantly constrain future takings might have left the cause of property rights worse off than defeat did. On the other hand, a strong ruling categorically banning economic development takings would likely have done more for property rights than the backlash did, especially considering the uneven nature of the latter. Furthermore, political movements sometimes build on legal victories, as well as defeats, as happened in the case of the Civil Rights movement in the wake of Brown v. Board of Education. It is possible that property rights advocates could have similarly exploited a victory in Kelo.

The California Supreme Court recently issued a ruling upholding the constitutionality of a law abolishing the state’s numerous redevelopment agencies:

The California Supreme Court ruled Thursday against redevelopment agencies, including San Diego’s, and said they cannot remain in business by paying the state a portion of their property tax receipts….

The court was dealing with two laws passed by the Legislature in June to help close the state budget deficit by tapping the redevelopment funds held by redevelopment agencies.

One, AB1X26, abolished the redevelopment agencies and set up a mechanism to shift the redevelopment taxes back to the cities, counties, schools and others.

The second, AB1x27, allowed the agencies to continue but required them to opt in but only by paying pay the state $1.7 billion from their tax revenues this year and about $400 million annually in the future or about 10 percent of their tax receipts….

The second law is unconstitutional, the court said, because the agencies do have a right under Proposition 22, passed last year, to retain local revenues.

“We largely uphold Assembly Bill 1X26 and invalidate Assembly BillX127,” the court said.

And so in an ironic twist of fate, the agencies won their argument that they can keep their money but lost their argument that they can continue to exist.

Although the bill abolishing the redevelopment agencies was adopted primarily for the purpose of alleviating the state’s dire fiscal problems, it also has the beneficial side effect of curtailing eminent domain abuse. As I explained in this post defending the new legislation before it passed, the redevelopment agencies routinely engaged in dubious takings that transferred property to favored interest groups and destroyed more value than they created.

The Institute for Justice – a leading libertarian public interest law firm specializing in eminent domain issues – addressed the property rights benefits of the ruling in this statement:

In a landmark victory for private property owners in the Golden State, the California Supreme Court today upheld a statute abolishing the nearly 400 redevelopment agencies across the state. The court also struck down a law that would have allowed these agencies to buy their way back into existence. The final outcome of the case is that, in 2012, California’s decades-long redevelopment nightmare will finally come to an end.

California redevelopment agencies have been some of the worst abusers of eminent domain for decades, violating the private property rights of tens of thousands of home, business, church and farm owners. The Institute for Justice has catalogued more than 200 abuses of eminent domain across California during the past ten years alone….

While the decision focused on specific provisions of the California Constitution, its practical effect represents a significant victory for California property owners. “Redevelopment in California has been a billion-dollar, state-subsidized boondoggle that has completely eroded private property rights through the abuse of eminent domain for private gain,” said Christina Walsh, the Institute’s director of activism and coalitions. “With the court’s decision, redevelopment has finally met its long-overdue end, and property owners who have been living in terror across the state can finally rest safe in what they’ve worked so hard to own.”

The ruling won’t necessarily end all eminent domain abuse in California. Other government bodies also sometimes engage in abusive takings, and it’s possible that the state legislature will give more condemnation authority to some of those agencies now that the redevelopment agencies are gone. Nevertheless, the abolition of those agencies is a major step forward for property rights in California, as well as for the state’s beleaguered taxpayers.

Proposed by a liberal Democratic governor and supported by a wide range of libertarian and conservative property rights advocates, the law upheld in this case is a good example of the kind of cross-ideological cooperation on property rights issues that we need to see more of.

Virginia was one of several states that enacted a strong eminent domain reform law after the Supreme Court ruled in Kelo v. City of New London that it was permissible for government to take private property and transfer it to other private individuals in order to promote economic development. Supporters of the Virginia law are now trying to incorporate it into the state Constitution. But, as the Washington Times reports, they are beginning to encounter resistance from local governments, which have a vested interest in keeping their eminent domain authority as broad as possible [HT: VC reader James Taylor]:

A state constitutional amendment to expand Virginia’s eminent domain laws is meeting local resistance, with the city of Alexandria agreeing to contribute as much as $5,000 for a lobbying firm to help fight the legislation.

The amendment, sponsored for the 2012 General Assembly session by Delegate Rob Bell, Albemarle Republican, attempts to change the Virginia Constitution by updating a law enacted in 2007 that says private property can be taken only when the public interest dominates the private gain, among other conditions.

“The goal is to put [the amendment] into the constitution so that it can’t be tinkered with,” Mr. Bell said….

The amendment passed with wide support during the 2011 General Assembly session, with help from Mr. Bell. It cleared the House by a vote of 83-15 and the Senate by a vote of 35-5.

But to amend the state constitution, the measure must pass again in the assembly before going to the public as a voter referendum on the 2012 ballot.

Despite the broad support, Mr. Bell said, amendment supporters are girding a fight.

“We are not taking anything for granted,” he said….

Mr. Bell said, the impetus was to protect property owners.

“The local governments were certainly opposed to the original statute and claimed it would bring along the end of the world,” he said. “Of course, it hasn’t.

When it comes to property rights, Virginia’s present constitution is one of the least protective in the country. Article I, Section 11 gives the state legislature virtually unconstrained authority to “define” what qualifies as a “public use” that justifies taking property by eminent domain. Essentially, the legislature can license the condemnation of property for virtually any reason it wants. Few if any other state constitutional rights are left so completely to the mercy of the very state officials they are supposed to protect us against. It would be as if the legislature had total discretion to determine what kind of speech can be censored or when police are authorized to search your home.

In the short term, it doesn’t matter much whether eminent domain in Virginia is constrained only by strong statutory restrictions or by a constitutional amendment. But in the long run, a constitutional amendment would be a vital safeguard against the gradual erosion of property rights. Effective post-Kelo reforms like that in enacted in Virginia are the product of an unusual upsurge in public attention focused on eminent domain issues. Most of the time, the vast majority of “rationally ignorant” voters pay little or no attention to the subject. Even in the immediate aftermath of Kelo, many states enacted ineffective laws in part because voter ignorance makes it difficult for the electorate to tell the difference between genuine reforms and those that only pretend to constrain economic development takings.

As Kelo recedes into the past, public attention will understandably focus on other matters, and influential interest groups can lobby state legislators to gradually roll back post-Kelo reforms. The public might not even notice what is happening, just as most of them were unaware of the prevalence of Kelo-style takings in many states before the Supreme Court focused a national spotlight on the issue in 2005. A state constitutional amendment can help forestall this kind of gradual erosion of property rights. Unlike some other state constitutions, the Virginia Constitution is relatively difficult to amend. Thus, it will be much harder to roll back a constitutional reform than a purely statutory one.

UPDATE: Richmond Times-Dispatch columnist A. Barton Hinkle has a good column about the proposed Virginia amendment here.

In a recent Wall Street Journal interview, retired Justice John Paul Stevens defended his controversial majority opinion in Kelo v. City of New London, which ruled that it was permissible for government to condemn private property for transfer to private parties in order to promote “economic development.” The Court ruled that this was a permissible “public use” under the Fifth Amendment. Stevens was particularly critical of Justice Sandra Day O’Connor’s dissenting opinion, which he claims contradicted her earlier opinion in Hawaii Housing Authority v. Midkiff

Stevens’ critique of O’Connor is not entirely without merit. In Midkiff, O’Connor wrote a majority opinion concluding that pretty much any rationale for a taking qualifies as a public use so long as it is “rationally related to a conceivable public purpose.” In Kelo, O’Connor dismissed this as merely “errant language.” But as Ben Barros has shown, it was actually deliberately inserted in the Midkiff opinion (O’Connor refused to take it out even after Justice Lewis Powell warned her that it would license virtually unconstrained takings).

That said, Stevens is wrong to suggest that the Court’s only options were either to overrule Midkiff and Berman v. Parker, or uphold the Kelo takings. Justice O’Connor’s dissent draws a perfectly reasonable distinction beween takings that eliminate some preexisting harm (severe blight in Berman, a supposed oligopoly in the property market in Midkiff), versus those that just seek to create some future public benefit. In the former case, there may be less danger that a taking that transfers property to a private party is just a scheme to benefit the new owner, since the public objective can be achieved simply by terminating the previous harmful use of the land. Many state supreme courts have adopted a similar approach under their state constitutions, permitting private-to-private takings for the purpose of eliminating severe blight, but forbidding them in most other situations.

It is not unusual for the Supreme Court to significantly narrow the scope of a precedent without completely overruling it. For example, the Supreme Court’s recent decisions in the Guantanamo cases narrow but do not overrule World War II-era precedents such as Korematsu and Quirin, which apply broad deference to the executive on wartime military decisions. Stevens voted with the majority in all those cases. Justice Stevens himself is the author of the Court’s decision in Gonzales v. Raich, which severely undercut its previous decisions in Lopez and Morrison, but did not overrule them completely. Like Justice Clarence Thomas, I wish the Court had overruled Berman and Midkiff completely. But I can understand why Justice O’Connor (along with Scalia and Chief Justice Rehnquist), preferred a more cautious approach.

It’s also worth noting that Stevens’ Kelo opinion misinterprets precedent at least as much as O’Connor’s did. For example, Stevens claimed that his position was supported by “a century” of precedent. But, as I explained in this article (pp. 240-44), all but the two most recent of those cases did not involve the Public Use Clause of the Fifth Amendment. They addressed challenges to takings brought under the Due Process Clause of the Fourteenth Amendment. Stevens also draws a distinction between takings that are part of a redevelopment plan and stand-alone “one-to-one” takings, claiming that broad judicial deference to the government is particularly appropriate in the former scenario, because the planning process protects property owners against abusive condemnations. However, as I explain here (pp. 228-29), the California district course he cites as a paradigmatic example of a “one-to-one” taking actually involved a redevelopment plan. This last mistake is more than just a minor technical error. Getting it right might have helped Stevens and the other majority justices understand that nearly all economic development takings occur in the context of redevelopment plans, and that the existence of a plan provides little or no protection against the use of eminent domain for the benefit of private interests. Influential interest groups routinely use the planning process to their advantage, as the Pfizer Corporation did in Kelo itself. Recognizing this might not have changed Stevens’ mind; but only one of the five majority justices would have had switch his or her vote for the case to have gone the other way.

Justice Stevens’ retrospective on Kelo is an interesting counterpoint to those of Justice Scalia and Connecticut Supreme Court Justice Richard Palmer. He makes some reasonable criticisms of the dissenting justices’ treatment of precedent. Perhaps in the future he will be equally forthcoming about his own similar mistakes.

UPDATE: As commenter “Steve” points out, I was wrong to suggest in my article that the Court did not mention the Public Use Clause of the Fifth Amendment in the 1896 case of Fallbrook Irrigation Dist. v. Bradley. The Court did mention it, but only to point out that it did not apply to the states:

There is no specific prohibition in the federal constitution which acts upon the states in regard to their taking private property for any but a public use. The fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided.

I am sorry I made this mistake, and grateful to the commenter for pointing it out. But getting it right would have actually strengthened my point.

As I noted in the article linked in my original post, the late nineteenth and early 20th century Supreme Court did consider challenges to state takings under the Due Process Clause of the Fourteenth Amendment. But it did so under a much more deferential standard of review than in the rare cases where it recognized that the Fifth Amendment does apply because the taking in question was conducted by the federal government.

UPDATE #2: When I wrote my initial post above, I did not yet have available the full text of Justice Stevens’ speech, which is available here. To his credit, Stevens actually admits his error in misdescribing the nineteenth and early twentieth century Due Process Clause decisions as Takings Clause cases. However, he does not acknowledge the fact that this error undermines his claim in the Kelo opinion that his position was backed by a century of precedent.

The WSJ‘s Jess Bravin reports on an interview with recently retired Justice John Paul Stevens in which he defended his “most unpopular opinion” — Kelo v. New London — from recent criticism by Justice Antonin Scalia (see here and here).

“It’s the most unpopular opinion I ever wrote, no doubt about it,” Justice Stevens said in an interview. He said he empathized with Ms. Kelo, “but the legal issue would have been exactly the same if it had been a gas station or a pool hall.” . . .

“I had people at a bridge game stop me and ask, ‘How could you have written that opinion? We thought you were a good judge, but we learned otherwise,’ ” he said. “But you can’t explain the whole law of eminent domain to your bridge opponents.”

He particularly criticized the logic of Justice Sandra Day O’Connor, who wrote the 1984 opinion supporting eminent domain in Hawaii and then turned around to write a passionate dissent in favor of Ms. Kelo. . . .

Justice Stevens suggested that Justice Scalia’s view on Kelo had hardened over the years. When the decision came down, “Clarence wrote an intellectually honest opinion,” Justice Stevens said, referring to a dissent by Justice Clarence Thomas. “He said you’ve got to go back and overrule this whole line of cases, which would be a fairly dramatic thing.”

But Justice Scalia “did not join the opinion that would have overruled that. Rather, he joined Sandra’s,” Justice Stevens said.

FWIW, I’ve never been convinced that the Kelo dissenters are correct as a matter of constitutional law. While I think the use of eminent domain by the city of New London was horrendous policy, and I fully support efforts to constrain such eminent domain abuse through legislation and state constitutional amendments, I am not convinced such actions are barred by the Fifth Amendment, as I explained here and here.

Today, I published an op ed in the Daily Caller on the passage of Mississippi referendum Measure 31, an important eminent domain reform law. Here is an excerpt:

The Supreme Court’s 2005 decision in Kelo v. City of New London generated a record political backlash. Kelo upheld the condemnation of private property for transfer to other private owners in order to promote “economic development.” The case inspired widespread outrage. Polls show that over 80% of the public opposes economic development takings. As a result, 44 states have enacted eminent domain reform laws that restrict the condemnation of property for the benefit of private interests.

The most recent state to react to Kelo is Mississippi. On Tuesday, Mississippi voters adopted Measure 31 by a decisive 73% to 27% margin. The new law will make taking property for economic development unprofitable by forbidding most transfers of condemned land to a private party for 10 years after condemnation. The measure is a major victory for both property owners and the state’s economy.

Mississippi Measure 31 - the important eminent domain reform initiative – has passed, probably by an overwhelming margin. Although the returns are not yet completely in, the “yes” side has 74% of the vote with almost 65% of precincts reporting. I outlined the case for Measure 31 here.

The overwhelming support for the measure is consistent with results in previous referenda on post-Kelo reform initiatives. No anti-Kelo referendum initiative has ever been defeated except in cases where a ban on Kelo-style “economic development” takings was packaged with some other, much less popular measure (as in the case of California Proposition 98). By contrast, all twelve “clean” anti-Kelo measures have passed, usually by lopsided margins, though a few of them fail to provide genuinely effective protection for property owners. I discuss all the referendum measures enacted up until mid-2009 in this article (see also here for an analysis of a Texas referendum initiative that passed after the article came out).

For reasons I summarized in my last post on Measure 31, reforms adopted by means of citizen-initiated referenda generally provide stronger protection for property rights than those enacted by state legislatures.

UPDATE: I have fixed the incorrect link to the vote tabulation.

UPDATE #2: With 90% of precincts reporting, Measure 31 is winning by a 73-27 margin. That makes it virtually certain that it will not only pass, but do so overwhelmingly.

Tomorrow, Mississippi voters will decide the fate of Measure 31, an important eminent domain reform proposal. Mississippi is one of only seven states that has not enacted any eminent domain reforms at all since the Supreme Court’s decision controversial decision upholding “economic development” takings in Kelo v. City of New London.

Measure 31 would effectively ban economic development takings by forbidding most condemnations that transfer land to private parties during the first ten years after condemnation. Economic development condemnations are often used by powerful interest groups to acquire land for themselves at the expense of the poor and politically weak. In Mississippi, recent condemnations have transferred land to big auto firms such as Nissan and Toyota. Mississippi Governor Haley Barbour and others claim that these takings are needed to promote economic growth. In reality, economic development condemnations often destroy far more economic value than they create, by wiping out homes, small businesses and schools.

Many of the post-Kelo reform laws enacted in other states fail to impose genuinely effective restrictions on economic development condemnations. Legislators have found various ways to produce bills that have major loopholes. The most common tactic is that of allowing economic development condemnations to continue under the guise of alleviating “blight.” Many states define “blight” so broadly that almost any neighborhood qualifies and is therefore subject to condemnation. Such unlikely areas as downtown Las Vegas and New York’s Times Square have been declared “blighted” for the purpose of justifying condemnations. The New York Court of Appeals recently upheld blight takings justified by a combination of virtually limitless definitions of blight and biased studies conducted by a firm with a severe conflict of interest. Fortunately, Measure 31 avoids this pitfall by forbidding blight takings except in cases where the land in question is severely dilapidated or poses a direct threat to public health and safety.

Politicians enact ineffective reform laws in part because it is difficult for voters to tell the difference between a real “anti-Kelo” bill and one just for show. A 2007 Saint Index survey found that only about 13% of Americans knew whether or not their state had passed an effective post-Kelo reform law. As I explain in this article, referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians. Measure 31 was submitted by the Mississippi Farm Bureau Federation (small farmers are often victims of eminent domain in the state). The vast majority of post-Kelo referenda adopted by voters impose tough restrictions on takings.

Unlike state legislators, the property rights activists who wrote most of the citizen-initiated anti-Kelo ballot initiatives had no need to appease powerful pro-condemnation interest groups in order to improve their reelection chances.

Measure 31 isn’t perfect. It still leaves the door open to abusive takings in genuinely blighted areas, and possibly to dubious condemnations on behalf of common carriers and public utilities. But it’s still a huge improvement over the status quo in Mississippi, which includes both an extremely broad definition of blight and a statute authorizing large-scale economic development takings.

In a recent public appearance, Justice Antonin Scalia predicted that Kelo v. City of New London will eventually be overruled, perhaps soon [HT: George Mason law student Michael Mortorano]:

Scalia predicted the court’s 2005 “Kelo” decision saying local governments can take take property from one owner to give to a developer will be reversed someday.

“I do not think that the Kelo opinion is long for this world,” Scalia said. “My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence. But it has made very few mistakes of political judgment, of estimating how far … it could stretch beyond the text of the constitution without provoking overwhelming public criticism and resistance. Dred Scott [legalizing slavery [note: Dred Scott did not actually "legalize" slavery, which was already legal in many states; it prevented Congress from forbidding it in federal territories, though states were still permitted to ban it - IS]] was one mistake of that sort. Roe v Wade [legalizing abortion] was another … And Kelo, I think, was a third.”

I am somewhat less certain than Scalia that Kelo will be overruled. However, I still think there’s a good chance. If anything, the controversy generated by Kelo makes it more likely that the Court will rethink its highly permissive Public Use jurisprudence than if the Supreme Court had never taken the case. Before Kelo, most experts thought that the Fifth Amendment’s Public Use Clause was virtually a dead letter because two unanimous Supreme Court decisions had declared that almost any “public purpose” endorsed by the legislature counts as a public use. Kelo, however, was a close 5-4 decision that generated widespread controversy far beyond the small group of experts who normally follow takings decisions. Even many defenders of Kelo had to admit that the meaning of “public use” was now once again open to serious debate.

Kelo also got a hostile reception from many state courts, who repudiated it as a guide to the interpretation of their state constitutional public use clauses. More broadly, both legal elites and the general public have become more sympathetic to property rights over the last twenty to thirty years. This trend, especially if it continues, makes it more likely that Scalia’s prediction will turn out to be prescient.

On Monday, October 10, I will be speaking at the University of Mississippi School of Law on a Mississippi eminent domain reform referendum initiative, Measure 31 (which is on the ballot this November). The talk is sponsored by the University of Mississippi Federalist Society, and will begun at 12:30 PM in Room 2094.

Mississippi is one of only a handful of states that have not enacted any eminent domain reforms at all since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, which ruled that the Constitution allows government to forcibly transfer private property to other private entities for purposes of “economic development.” Forty-three other states have enacted new laws, though many of them are likely to be ineffective.

Mississippi has a considerable history of dubious takings. Republican Governor Haley Barbour is a prominent advocate of massive condemnations that transfer property to big business interests such as auto manufacturers. In 2009, he vetoed a legislative eminent domain reform billIn this article, I explained why the kinds of economic development takings Barbour supports generally create more economic harm than benefit.

Although Measure 31 is not perfect, it would be a major improvement over current Mississippi law, which allows a wide range of economic development takings for big development projects, and also defines “blight” so broadly that virtually any area can be declared blighted and condemned. The initiative precludes economic development takings almost entirely by forbidding the transfer of condemned property to private interests for at least 10 years after the taking. It does create an exemption to this rule for property that is unfit for human habitation or poses a “direct threat” to public health or safety. But that is much more restrictive than the state’s current blight law. Broad definitions of blight that license abusive takings are a serious problem in many other states, including New York.

I will have more to say about Measure 31 at my presentation, and probably in a follow-up post that I will write after the talk for readers interested in the issue who are unable to attend.

Reason TV has a short but interesting video about the urban renewal era of the 1950s and 60s, when hundreds of thousands of people – mostly poor minorities – were forcibly displaced from their homes by eminent domain. As the video notes, often the land was transferred to politically connected developers and other influential interest groups.

I discuss this period in greater detail in my recent testimony on the civil rights implications of eminent domain abuse before the US Commission on Civil Rights. As I point out there, today’s abuses are not on as large a scale as those of fifty years ago. But it is still common for “blight” condemnations to be used against the minority poor and other politically weak groups in order to transfer their land to politically powerful groups. And nowhere more so than in New York City, the focus of the Reason video. The recent Columbia University and Atlantic Yards cases are particularly egregious examples, which I described in this article.

Urban renewal and blight takings are also a good example of how, contrary to stereotype, protecting property rights often benefits the poor more than the wealthy. Indeed, government is far more likely to threaten the rights of the former, because they usually have less political influence with which to protect themselves.

On August 12, I testified at a US Commission on Civil Rights hearing on the “Civil Rights Implications of Eminent Domain Abuse.” The video of the oral testimony is available here. I have now made my more detailed written testimony available online here. Here is the Introduction, which includes a summary of the rest [footnotes omitted]:

I am grateful for the opportunity to address the important issue of the impact of eminent domain on racial and ethnic minorities. I would like to thank Chairman Castro, Vice Chair Thernstrom, and the other commissioners for their interest in this vital question. As President Barack Obama aptly put it, “[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.” The protection of property rights was one of the main purposes for which the Constitution was originally adopted. Unfortunately, the Supreme Court has often relegated property rights to second class status, giving them far less protection than that accorded to other constitutional rights. And state and local governments have often violated those rights when it seemed politically advantageous to do so.

Americans of all racial and ethnic backgrounds have suffered from government violations of constitutional property rights. But minority groups have often been disproportionately victimized, sometimes out of racial prejudice and at other times because of their relative political weakness. Minorities are especially likely to be victimized by private to private condemnations that test the limits of the Public Use Clause of the Fifth Amendment, which requires that property can only be condemned for a “public use.” These include takings allegedly justified by the need to alleviate “blight” and promote “economic development.”

Part I of my testimony briefly surveys the constitutional law of eminent domain and public use. It documents the extent to which the Supreme Court has given condemning authorities a near-blank check to take property for whatever purposes they want.

Part II examines the impact of blight and economic development condemnations on minority groups. Both types of takings often victimize racial and ethnic minorities. Although such condemnations are defended on the grounds that they are needed to promote economic growth in poor communities, they often destroy far more wealth than they create. Economic development can be better promoted by other, less destructive means. African-Americans and Hispanics are targeted more often than other groups in large part because of their relative political weakness and comparatively high poverty rates. While, certainly, not all members of these groups are poor or politically weak, a disproportionately large number are.

Finally, in Part III I explain why the problem of abusive takings persists despite the wave of state reform laws adopted in response to the Supreme Court’s unpopular decision upholding economic development takings in Kelo v. City of New London. Many of the new laws actually impose little or no constraint on economic development takings. Even those that do impose meaningful restrictions usually still allow private-to-private condemnations in the types of “blighted” areas where many poor minorities live. Although post-Kelo reforms are a step in the right direction, much remains to be done before the property rights of poor minorities are anywhere close to fully protected.

UPDATE: Various commenters ask why this should be considered a “civil rights” issue and why it should matter whether there is a disproportionate impact on minorities. My answer is that property rights are in fact a major part of the “civil rights” that the framers and ratifiers of the Fourteenth Amendment sought to protect. And they particularly wanted to ensure their protection for African-Americans, whose property rights were at the time threatened by southern state governments. The disproportionate impact on minorities also matters because it is in part the result of past and (to a lesser extent) present racism, as is also the political weakness that makes it easier for even unbiased local governments to target the poor minority neighborhoods. It is not my view that the disproportionate impact on minorities is the only or even the most important aspect of this issue. But it’s certainly worth considering, and well within the mandate of the Commission on Civil Rights.

In the Hartford Courant, journalist Jeff Benedict, author of a major account of the Kelo case, reports on an interesting encounter last year, where Connecticut Supreme Court Justice Richard Palmer apologized to Susette Kelo for voting to uphold the the taking of her home for “economic development” [HT: Cory Andrews]:

If a state Supreme Court judge approaches a journalist at a private dinner and says something newsworthy about an important decision, is the journalist free to publish the statement?

I faced that situation at a dinner honoring the Connecticut Supreme Court at the New Haven Lawn Club on May 11, 2010. That night I had delivered the keynote address on the U.S. Supreme Court’s infamous 5-4 decision in Kelo v. New London. Susette Kelo was in the audience and I used the occasion to tell her personal story, as documented in my book “Little Pink House.”

Afterward, Susette and I were talking in a small circle of people when we were approached by Justice Richard N. Palmer. Tall and imposing, he is one of the four justices who voted with the 4-3 majority against Susette and her neighbors. Facing me, he said: “Had I known all of what you just told us, I would have voted differently.”

I was speechless. So was Susette. One more vote in her favor by the Connecticut Supreme Court would have changed history. The case probably would not have advanced to the U.S. Supreme Court, and Susette and her neighbors might still be in their homes.

Then Justice Palmer turned to Susette, took her hand and offered a heartfelt apology. Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words “I’m sorry.”

It was all she could do to whisper the words: “Thank you.”

Then Justice Palmer let go of her hand and walked off.

Justice Palmer’s statement is yet another indication that, at least at the state level, many judges have become more skeptical about economic development takings since Kelo was decided by the Connecticut Supreme Court in 2004 and the US Supreme Court in 2005. I document that skepticism more systematically in this article on the judicial reaction to Kelo.

In a later interview with Benedict, Justice Palmer partially retracted his apology:

Justice Palmer sent me a “personal and confidential” letter dated Nov. 8, 2010. In it he didn’t dispute my account. Nor did he ask me not to publish. Rather, he provided some important context.

“Those comments,” he wrote, “were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city’s development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped.” He later added that he could not know of those facts “because they were not yet in existence….”

Q: Looking back at the Kelo decision (by the Connecticut Supreme Court), how do you see it now? In other words, has it led to good law?

A: I think that our court ultimately made the right decision insofar as it followed governing U.S. Supreme Court precedent. Whether the Kelo case has led to good statutory law is not a question for me or my court; so long as that law is constitutional, its merits are beyond the scope of our authority. Of course, judges are also citizens and, therefore, we may hold a view on the merits, but that view should not interfere with or affect our legal judgment concerning the law’s constitutionality.

Justice Palmer lets himself off the hook too easily. It is true that the justices could not have known for certain that the Kelo condemnations would fail to produce the economic development that supposedly justified the use of eminent domain in the first place. But they could and should have known that such results have often occurred in similar cases, that the New London development plan justifying these particular condemnations was flimsy, and that there was no legal requirement compelling either the city of New London or the new private owners of the condemned property to produce enough development to offset the destruction caused by the takings. Some of these points were in fact noted in Justice Zarella’s dissenting opinion in the Connecticut Supreme Court. As he put it:

In my view, the development plan as a whole cannot be considered apart from the condemnations because the constitutionality of condemnations undertaken for the purpose of private economic development depends not only on the professed goals of the development plan, but also on the prospect of their achievement. Accordingly, the taking party must assume the burden of proving, by clear and convincing evidence, that the anticipated public benefit will be realized. The determination of whether the taking party has met this burden of proof involves an independent evaluation of the evidence by the court, with no deference granted to the local legislative authority. In the present case, the evidence fails to establish that the foregoing burden has been met….

The record contains scant evidence to suggest that the predicted public benefit will be realized with any reasonable certainty. To the contrary, the evidence establishes that, at the time of the takings, there was no signed agreement to develop the properties, the economic climate was poor and the development plan contained no conditions pertaining to future development agreements that would ensure achievement of the intended public benefit if development were to occur.

The evidence Justice Zarella relied on was also available to the majority justices. In fact, the latter did not dispute that evidence, but concluded that most of it was irrelevant to the question of whether the taking really promoted a “public use,” as required by the state and federal constitutions. They held that courts should not consider the actual economic costs and benefits of takings. This despite the logical point that even if “economic development” qualifies as a public use, it surely cannot justify a taking that doesn’t actually produce any economic development or is not likely to do so.

Justice Palmer is right that previous US Supreme Court precedent probably justified the takings under the federal constitution. Only the federal Supreme Court could reverse or narrow those earlier decisions. However, the Connecticut Supreme Court was applying not only the federal Public Use Clause but also that of the Connecticut state constitution. The latter is not controlled by federal Supreme Court precedent. Indeed, long before Kelo, many state supreme courts interpreted their state public use clauses more restrictively than the federal Supreme Court interpreted the Public Use Clause of the Fifth Amendment. The Connecticut Supreme Court could and should have done the same thing in Kelo.

UPDATE: It is not entirely clear whether Justice Palmer now believes that the court was justified in upholding the taking under the Connecticut state Public Use Clause. His statement that he and the other majority justices “made the right decision insofar as [they] followed governing U.S. Supreme Court precedent” could be interpreted to mean that they were wrong on those aspects of the case that were not governed by US Supreme Court precedent, including the question of whether the New London takings were justifiable under the Connecticut Constitution.

The Hartford Courant reports that Brooke Shields will star as Susette Kelo in a TV movie based on the notorious Kelo v. City of New London property rights case [HT: Cory Andrews]. The movie will be based on Jeff Benedict’s excellent journalistic account of the case, Little Pink House: A True Story of Defiance and Courage, which I reviewed here.

UPDATE: Timothy Sandefur notes that the really important question is who will play the amici. Also, who is going to play the authors of amicus briefs cited by the Court, such as this one? We all know that these characters should be the real heroes of the story! I’m holding out for Brad Pitt to play me.

My new article, “Let There Be Blight: Blight Condemnations in New York after Goldstein and Kaur” is now available on SSRN. It critiques the New York Court of Appeals’ recent controversial blight takings decisions in the Atlantic Yards and Columbia University eminent domain cases. It was part of a Fordham Urban Law Journal symposium on Eminent Domain in New York. Here is the abstract:

The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.

Part I briefly describes the background of the two cases. Goldstein arose as a result of an effort by influential developer Bruce Ratner to acquire land in Brooklyn for his Atlantic Yards development project, which includes a stadium for the New Jersey Nets basketball franchise and mostly market rate and high-income housing. Kaur resulted from Columbia University’s attempts to expand into the Manhattanville neighborhood of West Harlem. When some of the landowners refused to sell, Ratner and the University successfully lobbied the government to declare the land they sought to be blighted and use eminent domain to transfer it to them.

Part II addresses the issue of blight condemnation. Goldstein and Kaur both applied an extraordinarily broad definition of “blight” that included any area where there is “economic underdevelopment” or “stagnation.” In addition, the court opened the door for future abuses in three other, more novel, respects. First, it chose to uphold the condemnations despite evidence suggesting that the studies the government relied on to prove the presence of “blight” were deliberately rigged to produce a predetermined result. Second, it dismissed as unimportant the fact that the firm which conducted the blight studies had previously been on the payroll of the private parties that stood to benefit from the blight condemnations. Finally, the court refused to give any weight to extensive evidence indicating that Ratner and Columbia had themselves created or allowed to develop most of the “blight” used to justify the condemnations. The court’s approach opens the door to future abusive condemnations and violates the text and original meaning of the New York State Constitution.

Part III discusses Goldstein and Kaur’s treatment of the federal constitutional standard for “pretextual” takings. In Kelo and earlier decisions, federal courts made clear that “pretextual” takings remain unconstitutional despite the Supreme Court’s otherwise highly deferential posture on “public use.” Unfortunately, the Supreme Court has been extremely unclear as to what constitutes a pretextual taking. As a result, courts have taken widely differing approaches to the issue. Nevertheless, Kaur and Goldstein are outliers in this area, deferring to the government more than almost any other court that has addressed the question since Kelo. They virtually read the concept of pretext out of existence.

In a potentially important recent decision, Texas Rice Land Partners v. Denbury Green Pipeline the Texas Supreme Court has invalidated the use of eminent domain for a private pipeline to be owned by an oil company. Gideon Kanner has some good commentary on the decision here.

In Texas and many other states, public utilities and other “common carriers” have the power to use eminent domain to acquire land for their operations. In this case, however, Denbury, an oil company, sought to use eminent domain for a pipeline that would only transport carbon dioxide to and from its own facilities, without providing any service to the general public. In theory, the public would have the right to use the pipeline, but in practice no one but Denbury would have any reason to do so. The Texas Supreme Court quite rightly concluded that a “common carrier” taking must actually serve the general public, not just the carrier itself:

To qualify as a common carrier with the power of eminent domain, the pipeline must serve the public…. [E]xtending the power of eminent domain to the taking of property for a private use cannot survive constitutional scrutiny. The Denbury Green pipeline would not serve a public purpose if it were built and maintained only to transport gas belonging to Denbury from one Denbury site to another. As a constitutional matter, we can see no purpose other than a purely private one in such circumstances….

We accordingly hold that to qualify as a common carrier of CO2 under Chapter 111 [of Texas law], a reasonable probability must exist, at or before the time common-carrier status is challenged, that the pipeline will serve the public by transporting gas for customers who will either retain ownership of their gas or sell it to parties other than the carrier.

The case has been remanded for the trial court. In order to prevail there, Denbury would have to prove that its pipeline will transport carbon dioxide for the general public and not just its own use.

Some press commentary suggests that this decision will have a major impact on future pipeline takings in Texas. That may be so. But Texas eminent domain law contains several other loopholes that make it easy for private interest groups to get government to condemn property for their own benefit. As I discuss in this article and here, Texas’ post-Kelo eminent domain reform law includes a very broad definition of “blight” that enables almost any property to be declared blighted and transferred to private parties. Oil companies and others seeking to use eminent domain for private pipelines might be able to get the land they want by having it declared blighted. This might require greater political clout than the direct private exercise of eminent domain under Chapter 111. The oil company in question would have to lobby the local government or redevelopment agency. However, Texas oil companies certainly have plenty of political influence.

UPDATE: I have not been able to find a link to the decision online. It is, however, available on Westlaw and Lexis.

UPDATE #2: I have corrected some minor errors in the initial version of this post. Because I made the corrections within a few minutes of the original posting, I am not going to describe them in detail, since I don’t think there was any time for the mistakes to influence public discourse on the case.

Earlier today, I testified before the US Commission on Civil Rights at a hearing on the “Civil Rights Implications of Eminent Domain Abuse.” The other panelists were Georgetown law professor Peter Byrne, Hilary Shelton of the NAACP, and David Beito, a prominent historian and chair of the Alabama State Advisory Committee to the USSCR. A C-SPAN video of the event is available here.

I have previously written about the negative impact of blight and economic development takings on the minority poor here. I also discuss the issue in my recent article on “Federalism and Property Rights.”, where I point out that the political weakness of the minority poor who are the most common victims of eminent domain weakens the case for leaving property rights issues to the discretion of local political processes.

My recently published article “Federalism and Property Rights” is now available on SSRN. It’s part of the University of Chicago Legal Forum Symposium on Governance and Power. Here is the abstract:

Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.

This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.

Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.

Blogosphere mavens might be interested to learn that this is the first major article I wrote that was inspired by a blog post, specifically this exchange with NYU law professor Rick Hills (who is one of the “leading legal scholars” mentioned in the abstract). Although we continue to disagree on this issue, I’m grateful to Rick for the inspiration, and for his very helpful comments on the paper.

My article “The Judicial Reaction to Kelo” is now available on SSRN. It is the Introduction to the Albany Government Law Review Symposium on Eminent Domain in the United States, which includes contributions by several well-known eminent domain scholars including my colleague Steve Eagle, Amy Lavine, and David Schultz, among others.

Here is the abstract:

Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.

Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.

Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.

This article is a companion piece to my previous work assessing the much better-known political reaction to Kelo.