My article on Post-Kelo eminent domain reform from the August print issue of Reason magazine is now available online. Here's a brief excerpt:
In Kelo v. City of New London (2005), the U.S. Supreme Court allowed the government to condemn property and transfer it to other private owners in the name of "economic development." Upholding the forced transfer of land in New London, Connecticut, to private developers, the Court ruled that virtually any potential public benefit satisfies the Fifth Amendment's requirement that the authorities can take property only for a "public use." ...
The ruling generated more and broader opposition than any other Supreme Court decision of the last several decades. A 2005 survey . . . showed that 81 percent of Americans opposed Kelo, a backlash that cut across traditional partisan, ideological, and racial lines. Eighty-five percent of Republicans opposed Kelo, but so did 79 percent of Democrats and 83 percent of independents. The decision was likewise opposed by 82 percent of whites, 72 percent of blacks, and 80 percent of Hispanics....
Many observers expected the backlash to prompt legislation that would make judicial protection against economic development takings unnecessary.....
Although important progress in protecting property rights has been made in some states, such predictions turned out to be seriously overstated. The Kelo backlash has not been as effective as many expected. Too often, cosmetic changes have taken the place of real reform.
The Reason article draws on my far more detailed academic paper on post-Kelo reform.
As to the substance of "little progress on reform,", my take is that not enough people (relatively speaking) own what they perceive as developable property to create strong political push to reform eminent domain. So many people nowadays are employees and don't relate to the means of production personally and are not scared of govt taking.
That's possible. But both the polls and anecdotal evidence suggests that people are more likely to overestimate than underestimate the chance that they'll get nailed by a Kelo-style taking. Moreover, lots of evidence shows that people's voting decisions are not primarily self-interested in nature (at least not in the narrow sense of the word).
On the other hand, self-interest probably does explain why so many more of our readers are commenting on the RAP than on this post. Many of the readers are lawyers, lawprofs, or law students and have to suffer teaching or studying the RAP.
If I were asked if I supported a decision to avoid complicated one-size-fits all constitutional restrictions on property development and allow local property use decisions to remain in the hands of local government, perhaps I'd answer otherwise.
Or just be annoyed by a long, awkward question.
As to why no one posted yet, I think you're right, professor, for another self-interested reason -- It's a lot easier for us law students to gripe about RAP. You're post actually came with homework.
Although it is beyond the scope of the article, I was struck by how sophisticated CA's governments have become at preemptive damage control.
Immediately after Prop. 13 passed, cities, counties and the state went into overdrive to recover their briefly derailed gravy train. To do so they had to take transparently craven actions, such as cutting libraries' budgets first and most, to show the voting peasants who was boss. Now, the sugar coated CLC initiative shows they learned their lesson well and are on the offensive.
People who have a direct stake in a matter and who benefit directly are always on guard. People with a diffused generalized sense (that they might someday be victims of condemnation) don't have the incentive to do something now. Local govt &certain developers have immediate needs for the power of unjust (i.e Kelo) condemnation. I think it is that simple. Now versus maybe.
But if you pose the majority as being "politically ignorant" I think that begs the question. Why are they "politically ignorant"? Why no motivation to get educated?
I think the majority simply don't see that they have a stake which is immediately at risk; and they have lots of other things to worry about so this issue gets lost.
This is a part of a broader problem whereby American property owners (including, surprisingly, some very sophisticated ones) have persuaded themselves after a half-century of propaganda that was elevated to government policy during the New Deal, that curtailment of "property rights" is not a bad thing because it is "good for the environment." They see it as someone else's problem ("greedy developers"), not theirs, until -- as the expression goes -- their own roof starts smoldering. Then they demand justice. For themselves.
Also, historically, the press has presented urban redevelopment in a falsely positive light, as "slum clearance" or "blight elimination." The New York Times, to take an obvious example, is a positive cheering squad for redevelopment. In fact, truly slummy, blighted urban areas are not being redeveloped because they lack a profit potential for the redevelopers -- e.g., if you build an urban mall in a poor part of town, the customers won't come.
Before Kelo, nothing much was said in the press about the mass displacement of urban populations (hundreds of thousands per year) and the hardship that produced. The coverage typically consisted of boosterism for the latest downtown redevelopment project, with sporadic human interest stories about a li'l ol' landy or a stubborn loner resisting the "march of progress." When Dean Starkman of the Wall Street Journal wrote an expose of modern redevelopment in 1998 it was a front-page, above-the-fold sensation.
It will take time and more than one case, as well as a change in reportage to bring about widespread popular understanding of what the process is really like, particularly an understanding that billions in public funds are being frittered away lining the pockets of redevelopers (that part, the financing of redevelopment, is still widely misunderstood by the people). In California, for example, redevelopment bonded indebtedness has gone from $5 billion in 1985 to $61 billion in 2004. But you don't read about that in the papers either.
In the meantime, the bad guys who know how to play the PR/lobbying game and have ample funds to do so, are doing their thing, trying to mislead the public with "Trojan Horse" legislation and misleading arguments ("We are opposed to Kelo, but blight eimnation is just hunky dory"). They successfuly killed the Uniform Eminent Domain Act in the 1970s, and de-fanged the Uniform Relocation Assistance Act. They think they can do it again, thereby giving voice to the line of Mencken(?) that no one has gone broke underestimating the intelligence of the American public. I hope they are wrong, but I'm not holding my breath.