The Volokh Conspiracy

I agree with the Kelo decision.

But that is not what I want to write about here.

The statements:

"drew relatively little attention"

is factually correct, depending on what "relative" refers to.

First, amicus briefs by advocacy organizations that are in the business of writing such briefs may not be the sort of attention Tobin is referring to.

Second, their is no denying that the amount of press coverage and legislative attention that Kelo got after it came out massively dwarfed the amount of attention it got before the decision was issued.

The statement:
"hardly seemed like the stuff of high drama"

Is an opinion, not a fact. As a Yale Law graduate, I would expect you to be able to differentiate the two.

Toobin is even more wrong to attribute the immense public backlash against Kelo solely (or even primarily) to the machinations of "the conservative movement."

Can you support this assertion that Toobin said that with appropriate quotes?

It seems pretty clear that the loudest and most heated objections came from conservatives. On the other hand, obviously, if Toobin said they were the sole objectors, this would be a factual error. But, I would like to see an actual quote.

A legal journalist gets a legal story completely wrong? Next thing you know, Charlie Savage will get a Pulitzer for falsely reporting on Bush 43's signing statements (and in the process, incorrectly reporting on Bush 41 and Clinton's signing statements), despite widely blogged corrections!

No, wait. That already happened. [http://boston.com/news/specials/savage_signing_statements/]

I may have to abandon my belief in the good faith and near-infallibility of the mainstream media.

The statement:
"hardly seemed like the stuff of high drama"

Is an opinion, not a fact. As a Yale Law graduate, I would expect you to be able to differentiate the two.

This is a technically correct, but misleading point. In context, "hardly semed like the stuff of high drama," was simply another way of saying that Kelo was an unimportant case that (in Toobin's view) attracted little attention until "conservatives" hyped it up after the decision came down. That is a factual claim, and a false one.

I'm hardly a conservative, but I very much dislike the Kelo decision.

This is a technically correct, but misleading point. In context, "hardly semed like the stuff of high drama," was simply another way of saying that Kelo was an unimportant case that (in Toobin's view) attracted little attention until "conservatives" hyped it up after the decision came down. That is a factual claim, and a false one.

Makes sense.

I do not want to make this more than it is. Take this as a stylistic critique.

We both agree that you cannot really say that an opinion is factually inaccurate, and so it doesn't add anything unless it somehow helps us eliminate ambiguities in a statement that is a factual claim. An opinion is certainly capable of shedding light on how to interpret a statement that is a factual claim. But, I wouldn't put the opinion out there without the factual claim also.

In this case, the factual claim you say Toobin is making is contained is paraphrased, but not quoted. For me, when discussions go to whether someone is factually incorrect, I tend to gravitate towards quotes, rather than summaries, because there is often issues going to interpretation.

To me, when you put the opinion statement in quotes, which is secondary, while the main factual claim whose accuracy is in question is merely paraphrased, that throws me off. Because I tend to give quotes more deference as actually reflecting what was said, I tend to gravitate towards them. (Of course, quotes can be taken out of context, so quotes are not perfect either. And, obviously, accurate paraphrasing is superior to misleading quoting.)

I am sure reasonable people can disagree with me on this stylistic point, but that is how I see it.

2. Even before the decision was handed down, it got much more press and public attention than, probably, 99% of other Supreme court cases.

This very much goes to one of the factual claims you are critiquing, that the decision "drew relatively little attention," before the opinion was issued and criticism from conservatives brought it into the public's consciousness.

Compared to the typical Supreme Court case, I have no doubt that Kelo got more attention before the decision was issued. But, relative to the attention it got after the decision was issued and started to be widely condemned, that attention was not high.

So, again, it depends on what you are saying that Kelo before issuance got attention relative to. If Toobin means little attention relative to other cases before issuance, that would be inaccurate. If he means that it got little attention compared to what it got later, when Kelo got an extraordinary amount of attention even compared to well publicized decisions, that would be accurate.

The latter interpretation is consistent to the extent that Toobin wants to emphasize the role of conservatives in drumming up attention to Kelo.

I don't think there were many conservative objections that were "louder" and "more heated" than the statements by Dean, Waters, and Clinton, among others, that I cited in my article. For example, Waters called it the “the most un-American thing that can be done."

I agree that there were isolated incidents of passionate criticism on the left. I wouldn't give much weight to Maxine Waters though, since I am sure you will agree, she seems to be excessively hyperbolic in general.

Overall, I would think it is fair to say, that based on repetition of strong of condemnation and loudness of voice in the public mind, conservatives more than liberals drove the immense press coverage in the aftermath of Kelo. That obviously does not mean that their were not liberal critics. But I think passionate statements by liberals was both less common, and repeated less often.

Thanks for the particular page cites. When I get the chance, I will look at the book and see if I concur in your overall opinion.

Based on your summaries so far, I would say the verdict is still out until I get the chance to review it for myself.

Mr. Liberal- Kelo drew very little attention? Compared to Brittany's latest legal woes maybe... but it drew far far more attention than your average Supreme Court case. I suppose it's just your opinion that many liberals weren't against Kelo, since "conservatives more than liberals drove the immense press coverage in the aftermath of Kelo" is a conclusion in need of factual support.

Personally I don't see how you can think its unusual for a liberal who doesn't like it when the government wants to invade his privacy would then think its okay for the government to take his property (in order to give it to a corporation on the cheap no less!). Speaking as one liberal, I'm not too keen on the idea.

The anarcho-capitalist libertarian Stephan Kinsella defends the SC's Kelo decision here as did Ron Paul here.

There is a matter that emerges from this controversy that I find astounding. How did it happen that people who label themselves liberals and profess to oppose the abusive power of large corporations acting alone or in concert with compliant government officials, and who profess to be on the side of the "little guys" in any controversy that pits them agains corporate power, nonetheless in this context come down squarely and vociferously on the side of General Motors, Daimler-Chrysler, Nissan, AM General (makers of Hummer), the New York Stock Exchange, Otis Elevators, Pfizer pharmaceuticals, the Bank of America, the New York Times, Donald Trump, casinos, large car dealers and countless large chain and department stores (notably but not exclusively Costco, Target and Wal Mart), and against the vital interests of homeowners, residential tenants and small business owners who are summarily evicted from their properties (the latter two usually without any "just compensation" because the tenants are usually month-to-month and lack leasehold bonus value, and the business people are told that their businesses, though clearly property that is getting destroyed in the condemnation of their premises, are deemed by the courts to be non-compensable)?

Care to explain that one, Mr Liberal?

I think Mr Liberal has the better of the argument that the concerns at issue in this post are matters of opinion rather than fact. The VC does a great job of fact checking the MSM, and that reputation gets diluted when disagreements are mislabeled as errors. Relatively is the key term.
Without IJ, there would have been no Kelo. IJ, a conservative and libertarian organization, carefully picks its cases to appeal to liberal fairness and justice concerns, and the media relations machinations are an essential part of its strategy.
I've attended IJ's activist training CLE, and highly recommend it.
Gideon's Trumpet is an excellent blog on an important topic, and I would agree with Gideon that Toobin was factually wrong in saying the local government tried to "buy" the land (although I have not read Toobin to know the context.)

I am a reaal estate attorney in a large (600+) Midwestern firm. Our department has a sizeable development practice in several cities. We are in universal agreement that Kelo was (i) a terrible decision and a complete distortion of the public use doctrine, and (ii) great for business.

Gideon,

I would have to disagree with you. As a (relatively) well-informed member of the community, I remember being outraged at Kelo as portrayed by the press after the ruling was handed down. Only after attending law school did I understand that Kelo was in line with precedent, and the surprise was that it was decided as closely as it was, and, moreover, that it was the product of an effort by conservative/libertarian activists to change the ED law.

None of this relates to a normative judgment about whether Kelo was correctly decided from a given constitutional perspective. But it is disingenuous of you to discount the efforts of special interest groups (such as IJ) that happen to be property rights/conservative in propelling the issue forward.

Adam,

No, not a pissing match. A question of fairness. ED/property rights is a conservative and libertarian cause celebre with a concerted legal and philosophical effort behind it. It so happens that some liberals supported it. I think it is a fair statement that few libertarians/conservatives opposed it.

If someone, in a book about the Supreme Court, wrote an aside that Roe was spearheaded by liberals, would the existence of some conservatives who supported the right to choose make that statement 'dishonest'? This is simply a case of protesting (or nitpicking) too much. If you would like to credit liberals for being the vanguard of protecting our property rights, go right ahead.

The problem in this discussion is that too many posts have bought into the post-Kelo liberal "party line" (that Kelo decided nothing new and that it was merely an application of the settled Berman-Midkiff line of authority). Not so. Both Berman and Midkiff were explicit that the justification for the private-to-private property transfer was the elimination of of social harms (i.e., slums in Berman and a supposed land "oligopoly" in Midkiff). The court later reaffirmed that rationale and made it clear again in the Boston &Maine Railroad case. Kelo, on the other hand, simply proceeded on the premise that the city needs no harm elimination justification and can take private property to make money, in this case by by giving Pfizer whatever it wanted and hoping for the best on a trickle-down theory. In fact, the city had no real plans and no financing (which it still does not have), and in the time after Kelo came down, NOTHING has been done on the taken land which is sitting there vacant, after the city and the state blew over $70 million on it. Your tax money at work.

All that BS about New London going to hell in a handbasket was just that -- BS. Why? Because New London expressly eschewed use of blight elimination statutes and -- more important -- the Fitch bond rating service noted New London's stable tax cash flow and rated its GO bonds AA- (a solid investment grade rating).

The non-legal reason for the uproar was that this was a mass taking of middle class homes in one of the nation's leading NIMBY states, and resistance to such takings has been buildingfor some time. In Berman, the victims who lost their dwellings were the powerless African-American poor so they couldn't do anything as they were herded from the slums of Southwest DC into the slums of Northeast DC where they had to pay more for worse housing. There is much literature (written from a left-of-center perspective) on that point and you should read some of it. In Midkiff, the affluent, influential land lessees were the BENEFICIARIES of the private-to-privare transfer, and the landlord, the Bishop Estate, was successfully depicted in the press as a "trust" that abused its tenants, rather than the charitable institution it was. In fact, the benefitted tenats were affluent haole suburbanites in the best neighborhoods on Oahu. In Kelo, on the other hand, the victims were lower middle class folks and they had national support mobilized by IJ which did an admirable job of bringing eminent domain abuses to the public consciousness. In any event, by eliminating the justification of harm-elimination, Kelo was quite novel.

Loki 13:

Yeah. Law school will do that to you.

loki13:

Lots of precedents in eminent domain are wrong, either per se in the sense that they contradict what are supposed to be doctrinal principles, or in the sense that they are directly contradicted by other "precedents." In 1953 Lew Orgel aptly characterized the field in his treatise as "The dark corner of the law." When I wrote my first law review article in 1969, the field was already overflowing with scholarly invective (see collected quotes in 6 Cal. Western L. Rev. at 58), and things have only grown worse with the passage of time (see 36 Urban Lawyer at 702-703). Enjoy.

The best characterization of eminent domain law is unwritten. It came from the late Bert Burgoyne, a great condemnatuion lawyer in Detroit, who said: "The problem with this field is that liberal judges don't believe in private property, and conservative judges don't believe in making the government pay. So between them you've got a hard row to hoe." If you think that's hyperbole, be advised that the California Supreme Court has opined explicitly that it is its duty to keep condemnation awards down, lest "an embargo" on public works be declared. In contrast, in tort law, the voicing of such iseas at trial is deemed to be misconduct of counsel requiring reversal.

So yes, Thomas was right in Kelo. So what? The chances of getting the Magnificent Nine to sit down and reflect on this field of law in any kind of coherent way that is respectful of prevailing legal doctrine are about the same as the chances of me flying to Washington by flapping my arms. They don't know the field, they don't know that they don't know -- and above all, they don't much care about anything other than the outcome of the case before them at the moment. My favorite is the juxtaposition of Rehnquist's majority opinion in Fuller and his dissent in Almota -- both filed on the same day. There is some evil magic about this field of law that causes otherwise brilliant people to say silly things, and causes uninformed people to don the mantle of mavenhood. But hey man, all that makes condemnation lawyers prosperous, so why should I complain?

I have a law review article coming out presently, that deals with the disparity of treatment of condemnees (direct and inverse) as opposed to the treatment of other litigants. It's entitled "[Un]equal Justice Under Law." Please read it when it comes out, or let me have your mailing address and I will send you a reprint when it becomes available.

Last but not least, I stick to my guns. The core of the Berman and Midkiff holdings WAS the elimination of social harms, not the reuse of the taken land which was manifestly private. I didn't say it -- the Court did (I'll have to dig up the citation for you if you want). To that extent Kelo WAS novel. Further your affiant sayeth naught.

Let us read then. This is not I that is speaking; their Lordships are:

"In Midkiff we upheld land reform legislation which authorized condemnations for the specific purpose of transferring ownership to another private party, in order to eliminate a land oligopoly. In Berman we permitted land condemnations which contemplated reselling the land to redevelopers, as part of a plan to restore dilapidated sections of the District of Columbia. In both Midkiff and Berman, as in the present case, condemnation resulted in the transfer of ownership from one private party to another, with the basic use of the property by the government remaining unchanged." National R.R. Passenger Corp. v. Boston &Maine Corp, 503 U.S. 407, 422 (1992)

This time for sure FYASN.

Loki:

You have taken your nom de plume from the Norse god of mischief and true to that name you are inciting me to riot, and causing me to break my promise to say no more.

By bringing railroads etc. into the discussion you are committing the most fundamntal (and alas, very common) gaffe in this field. Railroads etc. are as public a use as it can get. They are common carriers so EVERYBODY can ride or ship stuff on them. They and public utilities are a lot more public that some government facilities (e.g. military installations). Also, they dedicate their facilities to public use and are highly regulated. Their status as private investor owned has nothing to do with the "public use" problem, because under the constitutional language it is the use not the user that has to be public. Got it? You yourself can condemn land for legislatively specified uses, such as an access road to your land, to take the most common example.

Nobody -- that's right, nobody, at least no informed person (which leaves out a lot of law professors) -- contends that modern redevelopment involves public use. Surprised? It's true. To stuff the redevelopment square peg into the round hole of the "public use" limitation, Wild Bill Douglas had to perform the linguistic feat of saying that "public use" doesn't mean public use; that it means "public purpose" or "public benefit" etc. If you want to see the doctrinal havoc that created, read my article, Kelo v. New London: Bad Law, Bad Policy and Bad Judgment, 38 Urban Lawyer 201 (2006), particularly the discussion at pp. 210-212, and also check out the discussion in Ellen Frankel Paul's book cited there.

In Kelo, Stevens went Douglas one better and asserted that "public purpose" is a "more natural" meaning of "public use." Gimme a break! Can you imagine Stevens dropping in on his neighbor and saying. "Hi. Can I purpose your lawnmower?" See id. at 202. Do read that article. If nothing else, I don't write like the typical law review author so you'll find it readable -- I hope.

Finally, as I also point out in that article, if all the fuzzy "public benefit" etc. terms were the proper basis for allowable takings, there would be no distinction between the exercise of the eminent domain power and the police power -- which is exactly what Douglas was forced to say in Berman to reach the result he wanted. But that doesn't pass the straight-face test (even though O'Connor repeated it in Midkiff).

And speaking of O'Connor, though ahe was right in Kelo, in light of her Midkiff performance her overall position was consistent with the bon mot of that great American legal scholar, Yogi Berra, when he said "I didn't actually say everything I said." See generally, The Jurisprudence of Yogi Berra, 46 Emory L. J. 697 (1997). But in fairness to O'Connor, she inserted qualifying language into Midkiff that left a door open to judicial inderdiction of takings for plainly private purposes. Whivch Kelo was.