Archive | Kelo

Upcoming Speech on Virginia Eminent Domain Reform – With Virginia Attorney General Ken Cuccinelli

This Thursday at 6:30 PM, I will be speaking on property rights and eminent domain reform in Virginia at the Old Dominion Boat Club in Alexandria. I will be joined by Virginia Attorney General Ken Cuccinelli, or perhaps it is more correct to say that I will be joining the AG. The event is open to the public.

I expect that much of the discussion will focus on Question 1, the eminent domain reform constitutional amendment that Virginians will vote on this November. Although Question 1 is far from perfect, I believe it is an improvement over Virginia’s present constitution. I defended Question 1 here and here. […]

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A Dubious Attack On Virginia Eminent Domain Reform Referendum Question 1

In Friday’s Washington Post, state legislators Scott Surovell and Linda Puller published an op ed attacking Question 1, the eminent domain reform referendum question that Virginians will vote on in November. Unfortunately, their arguments are off-base, and some are seriously misleading.

Question 1 would amend Virginia’s Constitution to forbid economic development takings of the kind the US Supreme Court allowed in Kelo v. City of New London. Such takings often enable powerful interest groups to use the power of eminent domain to transfer property to themselves at the expense of the politically weak; they also tend to destroy more economic value than they create. If adopted by the voters, Question 1 would provide some important protection against such abuses.

Surovell and Puller’s critique of Question 1 completely ignores the fact that Virginia’s present constitution is one of the worst in the country when it comes to protecting property rights. Article 1 Section 11 states that the “public uses” for which property can be taken by the government are to be “defined by the General Assembly” – the state legislature. This gives the legislators a blank check to authorize the taking of property for any reason they wish, including benefiting powerful interest groups at the expense of the poor and weak.

Surovell and Puller claim that “[t]he language in the Fifth Amendment [of the federal Constitution] is virtually identical to existing language in Article I of the Virginia constitution because James Madison borrowed the concept from George Mason, who had written it into the Declaration of Rights in 1776. It has stood virtually unchanged for 236 years.” They accuse supporters of Question 1 of seeking to “change language in the Virginia constitution that dates to George Mason.”

In reality, neither the Fifth Amendment nor Virginia’s original 1776 Constitution […]

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Thoughts on the Virginia Eminent Domain Reform Referendum Question

Various people have asked me what I think of Virginia Question 1, the eminent domain reform referendum question that will be on the ballot in November. Question 1 is one of many eminent domain reform referendum questions developed as part of the political backlash against the Supreme Court’s decision in Kelo v. City of New London (2005), which ruled that the Constitution allows government to take property from one private owner to another on the grounds that doing so might promote “economic development.”

Virginia is one of 44 states that have enacted eminent domain reform legislation since Kelo. The most recent is Mississippi, where voters passed Measure 31 last year. Restrictions on eminent domain were long overdue because economic development and blight takings often victimize property owners for the benefit of powerful interest groups, and actually destroy more economic value than they create.

My bottom-line take on Question 1 is that it is a clear improvement over the status quo, but still has some flaws. As I discussed here, Virginia’s present Constitution is one of the worst in the country when it comes to property rights. Article 1, Section 11 allows government to condemn property for virtually any reason authorized by the legislature. If the voters pass Question 1, that will change.

Unlike many states that have enacted post-Kelo “reform” legislation that doesn’t really constrain eminent domain, Virginia’s state legislature has already enacted a fairly strong reform law through the legislative process, which I briefly described in my article surveying post-Kelo reform in all the states. But a constitutional amendment constraining eminent domain is still valuable because statutory reforms could easily be eroded over time as public attention shifts to other issues, and powerful interest groups lobby the legislature to allow takings that […]

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Using Eminent Domain to Take Property For Universities

The Chronicle of Higher Education has an interesting article on the use of eminent domain to forcibly acquire land for universities. It quotes various scholars and commentators on the subject, including yours truly:

At a time when public university leaders regularly point to the advantages that private institutions have enjoyed over them in recent years – such as freedom from most state regulations, freedom to raise tuition, and often significant financial resources — it’s easy to forget that the public universities still have one significant advantage. They are parts of the state, and that comes with a lot of powers.

Earlier this month, Ball State University’s board of trustees authorized the use of eminent domain – the power of the state to seize private property without the owner’s consent so long as the owner is compensated – to take a piece of property on which it plans to construct a hotel, conference center, restaurants, and dormitory for hospitality students.

If the university does follow through with the plan – and administrators stress that they are trying to reach an agreement with property owners to avoid actually using the power – it will be a rare example of a public university invoking eminent domain, and it could generate controversy, particularly given that the property wouldn’t be used for “traditional” educational purposes….

Ilya Somin, a law professor at George Mason University who said he doesn’t think the 2005 Kelo case was decided correctly, has argued that even if the law permits states to condemn land for the purposes of private university development, the policy rationale for doing so is dubious…..

“Condemnation of property is rarely if ever actually useful for the purposes of advancing research or educating poor students. In general, research can be undertaken and students educated just as well on

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Eminent Domain Abuse in Virginia

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

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Eminent Domain and the Keystone Pipeline Project

The New York Times has an article describing how the TransCanada corporation is using eminent domain to forcibly acquire property to build the Keystone oil pipeline:

When the TransCanada men first came, Julia Trigg Crawford said, they were polite. They offered money. Seven thousand dollars to let the Keystone XL pipeline cross her family’s 600-acre farm on its way from the Alberta tar sands to the refineries on the Gulf Coast….

Ms. Crawford, 52, who serves as the farm’s manager, called the rest of the family. They agreed to sign. “We thought that at least if we signed we’d have some say in what happened,” she said.

They called the TransCanada representative. “He told us that if we could come up with a contract that worked for both parties, they wouldn’t condemn the land,” Ms. Crawford said…..

“I fully expected them to counter,” she said. “There were about five or six things we wanted, and we would have been happy to take one or two.”

Then, she said, TransCanada “went full radio silence.” The Crawfords never heard back from them — until October, when they got a letter saying their land had been condemned and a lease awarded to TransCanada.

But as the Crawfords discovered, when voluntary compensation agreements are not reached, Texas law allows certain private pipeline companies to use the right of eminent domain to force landowners to let pipelines through. This was true even for TransCanada, which has yet to get State Department permission to bring the Keystone XL across the Alberta border.

The article notes TransCanada’s claim that it has acquired the overwhelming majority of the property they needed for the pipeline through voluntary land sales. This may be true, but it is misleading. Like the Crawfords, these owners agreed to sell their land under the […]

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Libertarianism and Absolute Property Rights

Although I’m a strong advocate of property rights, I agree with most of what Georgetown political philosopher Jason Brennan says on the subject at the Bleeding Heart Libertarian blog:

The left believes that libertarians believe:

Property Rights No Matter What: People are self-owners. Respecting their self-ownership requires a particular kind of laissez-faire property-rights regime. We should have that regime no matter what, even if it immiserates the poor and systematically leads to widespread poverty.

In fact, hardly any self-described libertarians believe this. Instead, in one way or another, most believe that a system of property rights is supposed to solve real human problems and make our lives better. Most libertarians advocate free markets and property right in large part because they think this will tend to make people’s lives go better.

The left wants us to have a debate over whether “property rights no matter what” is true. They’ll win that debate.

What we’re trying to say in this blog is that if you look carefully at what the (smart) left means by “social justice”, almost all us classical liberals and self-described libertarians count as caring about social justice.

At least as a matter of moral theory, it’s a bad idea for libertarians to defend absolute property rights regardless of consequences. Doing so is both intellectually weak and unlikely to persuade anyone not already strongly sympathetic to libertarianism. The defender of absolute property rights will have to face painful hypotheticals such as the following:

What if redistributing a tiny fraction of George Soros or Rupert Murdoch’s fortune is the only way to save 1000 innocent people from starvation through no fault of their own? What if the only way to save the world from an asteroid strike is to violate the property rights of some misanthropic individual who […]

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My Upcoming Talk at Tulane on Property Rights Since Kelo

This Thursday at 4 PM, I will be speaking on “Property Rights Since Kelo” at Tulane Law School. Thanks to the Tulane Federalist Society for inviting me.

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. I intend to give the audience a bird’s-eye survey of the good, the bad, and the ugly alike! […]

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University of North Carolina Talk on Property Rights Since Kelo

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! […]

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The Green Costs of Kelo Revisited

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 […]

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What if Kelo v. City of New London Had Gone the Other Way?

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

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Justice Stevens on Kelo

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 […]

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Justice Stevens Defends Kelo

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 […]

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Scalia Predicts that Kelo Will be Overruled

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 […]

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My US Commission on Civil Rights Testimony on the Impact of Eminent Domain Abuse on Minority Groups

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

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