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Goldstein v. Pataki and the Shortcomings of Kelo:

The US Court of Appeals for the Second Circuit recently decided Goldstein v. Pataki, a case challenging the condemnation of homes and other property in Brooklyn for the purpose of transferring them to developer Bruce Ratner, owner of the New Jersey Nets. Ratner plans to use the land to build a new stadium for the Nets, as well as other facilities, including some 2250 new housing units.

Not surprisingly, the Second Circuit upheld the condemnations. Under Kelo v. City of New London, they had very little choice. As I discuss in great detail in this article, Kelo mandates very broad judicial deference to the government in determining whether a condemnation is a genuine "public use" under the Fifth Amendment. Any potential benefit to the general public is sufficient, even if it is greatly outweighed by the project's cost.

The case nonetheless reveals some of the serious shortcomings of Kelo and related precedents. Goldstein v. Pataki is a correct application of Kelo; it is also an example of the sort of abuse that more robust judicial protection of property rights could prevent.

First, the fact that much of the condemned land is to be used to build a sports stadium raises serious red flags about the true likelihood that the general public will benefit from the condemnation. Numerous studies by economists show that public subsidies for stadium construction create no economic benefits for the general public (see, e.g, this book published by the liberal Brookings Institution).

Second, the court claims that the creation of "affordable housing" for the poor is one of the public benefits to be expected from the project. The project will indeed create some new housing units (in addition to the stadium). However, as the Second Circuit opinion concedes (pg. 15), almost 70% of the new housing units will be "luxury" units for the wealthy, and the remainder is mostly not guaranteed to be ever built and is still intended for the "middle class" rather than the poor. Like the stadium, the housing portion of the project seems likely to be a straight redistribution of wealth from the current residents of the area to the very wealthy Mr. Ratner and the types of wealthy people who will be able to afford to buy the luxury housing he intends to build. To say the least, it is hard to discern any genuine public benefit here.

The Second Circuit also justifies the takings on the basis that they will serve to alleviate "blight." New York City has indeed designated much of the area condemned area as blighted. However, the validity of this designation is debatable at best (the plaintiffs pointed out that much of the land in the area is among the most valuable in Brooklyn). As I discuss in this article, New York is one of many states with a definition of "blight" so broad that it can encompass virtually any property. Even if the area really is "blighted," it doesn't necessarily follow that the current owners and residents should be expelled and their land transferred to a politically powerful developer. Cities have many other options for alleviating genuine blight that do not infringe so greatly on property rights. At the very least, there is no good reason to condemn the 50% of the project area that even the city acknowledges to be free of blight (see pg. 14).

In this case, as in Kelo itself, the court took account of the claimed benefits to the general public, but explicitly refused to consider the massive costs (pp. 13-15). Ignoring cost is a requirement under Kelo. But it is not a good way of determining whether a planned condemnation is actually likely to serve a "public use" - even if "public use" is defined broadly to include indirect public "benefits." Like those in Kelo, the Goldstein takings seem highly likely to create more costs than benefits for the general public. Ignoring costs is a blank check for local governments to undertake condemnations that benefit politically powerful interests while imposing the costs on taxpayers and the politically weak.

Finally, the Second Circuit notes that "Ratner was the impetus behind the [condemnation] Project, i.e., that he, not a state agency, first conceived of developing Atlantic Yards, that the Ratner Group proposed the geographic boundaries of the Project, and that it was his plan for the Project that the ESDC [government agency undertaking the condemnations] eventually adopted without significant modification." The court is probably right to conclude that this is not enough to prove that the taking was a "pretextual" one under Kelo. At the very least, however, such a pattern of events should trigger heightened judicial scrutiny of the government's true purposes in undertaking the condemnation. The fact that this kind of special interest-driven project receives only the most cursory possible judicial scrutiny is one of Kelo's many shortcomings.

Justin (mail):
You really think this is the sort of decision that a court should be making? The Brooklyn development project is controversial, and both sides have made strong arguments, and you think a court should just disagree with the legislature and go the other way?

What if the Supreme Court disagrees with you? Should they be the highest legislature in the land?

Clearly, the problem with the Brooklyn project wasn't a lack of public scrutiny.

I think your criticism shows Kelo's strength. Make your appeal to the people, and vote out the bastards, if you don't like them.
2.1.2008 11:54pm
CDU (mail) (www):
You really think this is the sort of decision that a court should be making? The Brooklyn development project is controversial, and both sides have made strong arguments, and you think a court should just disagree with the legislature and go the other way?

What if the Supreme Court disagrees with you? Should they be the highest legislature in the land?
Are you trying to restart last week's argument? It was interesting the first time, but I think that horse is dead.
2.2.2008 1:15am
Justin (mail):
CDU, this is fundamentally different than that argument. This is whether a court should make a decision, invalidating a federal act, based on findings that are legislative in nature. Otherwise, yeah, hardy har har.
2.2.2008 1:22am
CDU (mail) (www):
This is whether a court should make a decision, invalidating a federal act, based on findings that are legislative in nature.
That sounds like it boils down to, "how much deference do courts owe the legislature," which is exactly what last weeks argument was about.
2.2.2008 1:32am
Justin (mail):
You're wrong, and I started to write an explanation before I realized it's plain as pie, and I'm not going to convince you. So goodnight.
2.2.2008 1:35am
Ilya Somin:
You really think this is the sort of decision that a court should be making? The Brooklyn development project is controversial, and both sides have made strong arguments, and you think a court should just disagree with the legislature and go the other way?

Lots of "controversial" issues are decided by courts all the time if they involve constitutional rights. The Constitution requires that a taking be for a "public use." One approach, the one I favor, would be to take those words in their ordinary meaning and require taht a taking actually be for the use of the government or the general public. Another approach is that it require only the creation of a "public benefit." Even if you adopt the latter, however, the Constitution would still require proof that it really is for the benefit of the general public, and not merely a few well-connected interest groups. If you just leave it up to the government, the constitutional right in question would be gutted, because virtually any excuse would be enough to override it.
2.2.2008 1:41am
fishbane (mail):
A different interpretation of "government benefit" would be to conclude that the phrase involves benefit to government officials in direct opposition to the interests of the segment of the public impacted, but that would be cynical to assert.
2.2.2008 1:54am
Justin (mail):
Ilya, but wouldn't the proper review then be subjective. Courts could (though they shouldn't) perform subjective review of government action. They could even do an "objectively reasonable" review. But you're asking for what appears to be a de novo review of whether the legislation was, in fact, a good idea. This seems preposterous.

It's certainly a reasonable, although disputed position that sports stadiums do help economic redevelopment - certainly the Verizon Center is widely considered to have helped Chinatown in DC. And though I don't know enough to know if the net affordable housing is positive or negative, your response to "Second" seems like a nonsequitor - that luxury houses will also be built doesn't seem to be either here nor there about whether the project will create affordable housing.

The only way your argument could possibly succeed is a de novo review - if the Court looked between two perfectly plausible analyses and chose one. This is fundamentally different from, say, a court's factual findings in a search and seizure case.

And you missed the point about me saying controversial. I was simply pointing out that this was not the type of issue where the judiciary would need to intervene because the legislative system failed and this flew in under the radar. Indeed, there was serious public debate and lots of hearings, which you seem like you don't so much want to review, but ignore and start anew.
2.2.2008 2:00am
Mr. Liberal:

take those words in their ordinary meaning


A public benefit is a subset of public use. I mean, using the ordinary meaning of those words.

Something that is of benefit to the public, is of use to the public. People use that which benefits them. The two go hand and hand.

The idea that a public use must be a "net benefit" (as calculated by whom exactly?) is ridiculous. We hope that when government condemns private property to, say build a road, their is a net benefit. But we certainly do not require it.

There are many ways to calculate costs and benefits, based on the weight you put on various benefits and costs. Such considerations are best left to the People, not the courts.

Person X may think we should put significant weight on symbolic value of having the New Jersey Nets in a particular location. Person X may put a high value on the non-monetary benefits that result from less crime when blight is reduced. Person Y may think that only economic benefits should count. That the cost of crime should be measured completely in terms of lost income. Person Z may think that the "principle" of a taking means that the cost is much higher than someone else. (Z would be someone like Somin.)

Calculating costs and benefits is not an objective matter. It is certainly not something that courts would have any special insight into doing. The views of Judge A concerning costs and benefits are not necessarily superior to the views of Citizen B.

Different views of costs and benefits, values and principles, is precisely why we have democracy.

I believe that we should go with the plain language of the Constitution, and recognize that a public benefit is use to the public and is a public use.
2.2.2008 2:16am
CDU (mail) (www):
You're wrong, and I started to write an explanation before I realized it's plain as pie, and I'm not going to convince you. So goodnight.
Last week's debate involved how much deference the judiciary should give the legislature when it passes a law infringing people's free speech rights. You seem to want to debate how much deference the judiciary should give the legislature when it passes a law infringing people's property rights. How is this argument fundamentally different from last weeks? I would welcome an explanation of why you think these are different but you're certainly not going to convince me if you don't even try.
2.2.2008 2:44am
David M. Nieporent (www):
A public benefit is a subset of public use. I mean, using the ordinary meaning of those words.

Something that is of benefit to the public, is of use to the public. People use that which benefits them. The two go hand and hand.
False. The fact that someone benefits from something does not mean he's using it. Using the ordinary meanings of those words. If I own a coffee shop, putting up an office building next door may well benefit me -- but that doesn't mean I'm using the office building. No "ordinary meaning" of the word "use" would have me doing so. The tenants of the building are using it. I'm just a bystander who happens to get a benefit.

Benefit and use are different concepts, and no "plain meaning" can possibly hold them to be the same.


The idea that a public use must be a "net benefit" (as calculated by whom exactly?) is ridiculous. We hope that when government condemns private property to, say build a road, their is a net benefit. But we certainly do not require it.
That's right, we don't. Because the test is not public benefit. A "bridge to nowhere" is a public use, but not a public benefit. So a Taking for such a purpose would be constitutional, though bad policy.

There are many ways to calculate costs and benefits, based on the weight you put on various benefits and costs. Such considerations are best left to the People, not the courts.
Well, they're best left to the market, not the government. (The "People," of course, have nothing to do with it.)
2.2.2008 2:54am
Mr. Liberal:

The fact that someone benefits from something does not mean he's using it.


Yes it does. It is impossible to benefit from what one does not use.


If I own a coffee shop, putting up an office building next door may well benefit me -- but that doesn't mean I'm using the office building.


How does the office building benefit you? Does it benefit you by attracting customers? Then you are using the office building to attract customers.


Benefit and use are different concepts, and no "plain meaning" can possibly hold them to be the same.


I agree that they are different. Because one can use something that does not benefit them. But, one can never benefit from something but not use it.

Use is broader, benefit is narrower. Benefit is a subset of use. Use is a superset of benefit. One could never benefit from something that it would be improper to say is used.


A "bridge to nowhere" is a public use, but not a public benefit.


As I said in the original post, public use is broader than public benefit. But, things that benefit are used. That is, if you are into plain English.


Well, they're best left to the market, not the government. (The "People," of course, have nothing to do with it.)


Apparently, you are not familiar with the concept of externalities. Also, apparently you are not familiar with the concept of poverty. Also, apparently you are not familiar with the concept of non-monetary costs and benefits.

The market is a wonderful thing. For certain things. You need a little more nuance.
2.2.2008 4:10am
MDJD2B (mail):
I live near the proposed projet.

First, most of the land in question is blighted, and likely would have been constitutionally subject to condemnation before Kelo.

It is likely that the projet will have good and bad effects. The first good effect will be to attract jobs. The second is that the project will raise nearby property value. (This will also raise tax revenuesfor the city)

A rise in property value also is the bad effect. Most people in NY are renters, and community boards tend to oppose projects that will raise property values because theat raises rents. Furthermore, the Brooklyn street system is not a grid, but one whicch converges on downtown Brooklyn, and there is likely to be more ccongestion from the projecct. Of course, crumbling office buildings are being replaced there on a large scale by high rise luxury apartments, and congestionwill ensue anyway.

So the public benefits question is at least a wash.
2.2.2008 7:03am
David Schwartz (mail):
I think you really have to stretch "use" to make it broader than benefit. In ordinary parlance, I benefit from UPS trucks because they sometimes deliver packages to me. But I don't use them, someone else does.

The term "use", without any qualifiers, ordinarily means only direct use. I think it's reasonable to interpret "public use" as an application where the public actually *uses* the thing in question. A public benefit may or may not be a public use.

I may benefit from a McDonald's, even if I don't use it, because people who eat there don't eat at the place I eat, resulting in shorter lines. I may benefit from the McDonald's because taxes they pay may improve roads I drive on. But it would be very unusual to say that I "use" the McDonald's to do these things.

The Constitution requires public use, not merely public benefit. I think it fails to do this as clearly and explicitly for the same reason it doesn't make the private right to own a gun as clear as it might have -- the framers simply could never have imagined anyone would want do use eminent domain to give property to another private owner or ban private handgun ownership.

The "for public use" clause appears likely because the framers could not imagine anyone would be so evil as to attempt to use eminent domain for any other purpose. The second amendment is not clearer because the idea that a free society would try to heavily restrict gun ownership was unthinkable.
2.2.2008 7:15am
Jim at FSU (mail):
I would have thought that majority rule processes (vote the bastards out) would be especially unsuited to remedying situations where a relatively small group of people has their property taken. Unless the entire voting area is given wholesale to another party, I can't see any guarantee that there would be a serious electoral upset.

If I was one of those people ejected from my once valuable Brooklyn property for the benefit of Mr Ratner and I can't seek redress in the courts, where would I go? The court of Molotov?
2.2.2008 8:20am
Justin (mail):
" would have thought that majority rule processes (vote the bastards out) would be especially unsuited to remedying situations where a relatively small group of people has their property taken."

That's not the question. The compensation requirement of the Fifth Amendment is what protects them, and you are right that *that* is not subject to majority rule.

The question is whether its for *public use* - now as an originalist, there's no way the founders contemplated that this amendment would be used in this way, and its plain language says NOTHING about prohibiting anything, only compensation.* But let's just say, for this exercise, that Ilya is right and such takings can be absolutely prohibited under the takings clause (as opposed to the much stronger argument, the due process clause).

Then the question of what is for public benefit is a perfectly majoritarian question, no? All of a society, not some small group, form the public. Ilya's concern is that the land is taken not for public benefit, but to help a few lousy souls.

Finally, although I disagree with Ilya, at least he's internally consistent. I am amazed at the positively communist interpretations and sympathies that Kelo brings out in conservatives who are quite willing to claim the constitution permits torture, the death penalty to children and rapists, "non-faical discrimination," and the complete supremacy of executive decisionmaking. I know conservatives are not monolithic, but I recognize your handles.

I guess we're all relativists now.




* Funny though, all of a sudden the meaningless verbalige in this amendment matters to conservatives, but in the 2nd Amendment, it doesn't. I'm ambivalent on the 2nd Amendment question for reasons I won't get into here.
2.2.2008 9:35am
Doc W (mail):
Some of the responses here illustrate just how susceptible Constitutional restraints are to being interpreted out of existence. Given the slightest crack in the door, collectivists like Mr. Liberal are firing up their Mack trucks to drive through with the full panoply of collectivist depredation. The end game is all private property being treated as a political commons.

If, somewhere, sometime, wise individuals have the opportunity to devise a new constitution in a new land, they will have as much to learn from the American experience as our own Founders learned from previous attempts at limited government.
2.2.2008 10:30am
Anonymous Jim (mail):
Kelo and this case may be many things (e.g. wrong, immoral, unconstitutional) but "collectivist"? At most it is a trasnfer of wealth assuming that the owners are not adequately compensated. If any thing, the view supported by Prof. Somin may encourage more colletivism. If the we required a taking to actually be for the use of the government or the general public then certainly it would be acceptable if the local authority (rather than Ratner) was going to own the facilities. Maybe they should have just condemned it for their own use then leased it to Ratner for a long time.
2.2.2008 10:46am
Brett Bellmore:

and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings


I believe that the above quote from the Constitution is a fairly clear indication of what was contemplated in the way of "public use": Land that the government itself would be using for the furtherance of those few tasks the Constitution alotted it.
2.2.2008 10:55am
Doc W (mail):
Even taking land for direct use by the government--for a fort, say--would be collectivist, in that private property rights were usurped by collective institutions. Maybe there just has to be some of that, e.g. to maintain defenses against predation from the outside. But there are degrees. The constitutional problem has always been to restrain government while permitting it to function within a limited role. Collectivists reject limitations and take us in the direction of viewing everything as a commons subject to appropriation by the legislature.
2.2.2008 11:10am
Dave Hardy (mail) (www):
James Madison is given credit (tho he was not the only one to understand this, just the one who best worded it) for the understanding that in a monarchy the danger to rights came from a ruler acting contrary to the majority, whereas in a republic it came from a majority acting against a minority.

I should think a case like this involves both of the above, A powerful, wealthy fellow wants to have private homesteads so he can make bucks. (My view: he's a businessman, right? Let him buy them and turn a profit in the normal way). He has influence that would enable him to get his way, whether a majority of the community backs the move or not. Further, a majority may back the other side of the confiscation. We'll have a sports stadium! It's not OUR houses that are being taken, so we lose nothing.

To illustrate the former: in my time at Interior, Jack Kent Cooke wanted to expand the Redskins stadium. It would have involved acquiring some federal land -- no takings issue there. The Sec of Interior, Manny Lujan, was a nice guy, and knew that Cooke was a first rate SOB. He told the legal staff "take CARE of this man," with the inflection indicating that he wanted him to receive anything but care. OK, all I could ever ask from a client was clear instructions.

Instead, the political appointees trembled at the thought of actually crossing this millionaire, whatever their client's instructions had been.
2.2.2008 11:21am
Gideon Kanner (mail):
Early cases recognized that a major reason for having federal courts was that states with their local, parochial rivalries and concerns could not be trusted to interpret the Constitution. Those old dudes had it right, and that idea has pretty much animated modern constitutional inrerpretation especially where the Bill of Rights is concerned. Case in point: post-Brown v. Board of Education school desegregation cases. Obviously, local city councils and school boards have a better understanding of school management problems and budget constraints than judges sitting in remote federal courts. So what? That has not inhibited the courts from decreeing how schools should be run, or telling prison wardens what their constitutional obligations with regard to prison conditions are, etc., etc.

Even more telling are the recent cases in which the Supreme Court has stressed that normal judicial deference to legislative determinations must be relaxed in cases where the local entity acts in its own economic self-interest. Why not do that when the local entity happens to be using eminent domain as the vehicle for pursuit of economic self-interest?

To the best of my knowledge the US Supreme Court has never explained why only in the field of eminent domain that reasoning is not applied. Why is the decision of an unelected redevelopment agency of Podunk of such overarching force that it need not even be rational -- that merely being "rationally related to the conceivable" is enough?

David Schwartz has it right. This isn't a problem of interpreting law; it's a problem concerning the meaning of words. "Public" does not mean "private" and "use" doen not mean "purpose." "Purpose" goes to the object or motivation of the actor, while "use" goes to his act whatever its purpose may be. So it would be correct to say that in Berman the purpose of the redevelopment was slum elimination, but the use to be made of the taken land was to allow redevelopers to build apartments, condos, and commercial facilities -- none of them any different than similar facilities built privately without use of eminent domain. To call that "public" is a distortion of the English language that requires no fancy legal theories to understand.

American history teaches that in the context of eminent domain, judges have always been handmaidens of the Robber Barons du jour. At least in the 19th century those Robber Barons built railways -- usable by all and thus quintessentially public uses. Today's Robber Barons build car manufacturing facilities, to take an egregious example. If those can be said to be "public" then everything is "public," and any contrary suggestion -- even on its own premise -- only raises the inquiry of when does a judicially-proclaimed doctrinal principle cross the reductio ad absurdum line.

Probably the best comment of all time on this subject was made by Justice Musmanno of the Pennsylavnia Supreme Court, appropriately, in a condemnation case:

"The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders, commands or directives are not subject to review." Winger v. Aires, 89 A.2d 521, 522 (Pa. 1952).

The Kelo-style law of eminent domain goes astray by ignoring that sensible principle and conferring an unreviewable power on petty, and often corrupt local urban politicians -- the lowest form of political life. That is bad policy, but it is also bad constitutional law because is permits those who are supposedly bound by constitutional limitations to determine for themselves whether they are or not, with the courts acting only as a de facto rubber stamp.
2.2.2008 2:37pm
Mr. Liberal:

I think you really have to stretch "use" to make it broader than benefit. In ordinary parlance, I benefit from UPS trucks because they sometimes deliver packages to me. But I don't use them, someone else does.

The term "use", without any qualifiers, ordinarily means only direct use. I think it's reasonable to interpret "public use" as an application where the public actually *uses* the thing in question. A public benefit may or may not be a public use.


The word use without any qualifiers does not mean direct use. That is why the phrase, "direct use" has any meaning.

If talking about direct and indirect use, one does say, "use and indirect use," rather, what one says is "direct use and indirect use." The qualifier "direct" does in fact have an effect on the word "use."

The idea that all that, as a matter of plain English, all that counts as a use are "direct" uses is absurd.

The public does not get to directly use a military base. Typically, only military personal and other individuals with business are authorized to directly use them. However, it is clear that the public does "benefit" from military bases, in that they provide for our defense. (I guess if Ilya Somin had his way, courts would consider whether any particular military base was a net benefit or not.)

Nonetheless, everyone agrees that a taking to build a military base is a public use, even though the public does not directly use these installations.
2.2.2008 2:37pm
David M. Nieporent (www):
Then you are using the office building to attract customers.
No, I'm not. I'm not doing anything. The owners of the building are. I'm just sitting there passively and getting a benefit.

Nonetheless, everyone agrees that a taking to build a military base is a public use, even though the public does not directly use these installations.
The government directly uses it.

The word use without any qualifiers does not mean direct use. That is why the phrase, "direct use" has any meaning.
The word "use" requires active employment of the item in question. If someone else does something and you benefit from it, you did not use it. No honest person ever uses the word that way.

If most of the public gets vaccinated for smallpox, and I don't, then I "benefit" from it through herd immunity, but I definitely did not "use" the vaccine, "directly" or "indirectly." Other people did. I explicitly chose not to use it. Use is by definition active, not passive. Plain meaning.
2.2.2008 4:13pm
Gideon Kanner (mail):
Mr. Liberal has invented a new fuzzy-wuzzy term, "direct use," which I confess, I have never heard in this context in decades of involvement in eminent domain law. There is a distinction between "public use" and "use by the public." Thus, to take an obvious example, the White House is incontestibly a "public use" because it serves the public by providing a place from which the President can govern. But the fact that you can't stroll into the White House mess and order a meal, does not make it any less a public use.

The courts have evaded the problem of dealing with post-taking use by asserting that it is the elimination of blight, for example, not the reuse of the taken land that is the "public use." See Condemnation in rem by Redevelopment Autority of Philadelphia, 2007 Pa. LEXIS 2894 holding that reuse of taken property for a religious school (in plain violation of the Establishment Clause) was no defense to taking because it was the elimination of blight not the property's reuse that was the "public use" justifying the taking. So when it comes to eminent domain not even the First Amendment can stand in the way. Thus the question remains: why?
2.2.2008 5:55pm
Justin (mail):
"The Constitution requires public use, not merely public benefit."

It does no such thing. It doesn't require public anything. It only says that when land is taken for public use, there must be compensation. Either we interpret public use as verbolige, or we end up with a situation where the government does not have to compensate at all when the land is turned over to private development.
2.2.2008 7:36pm
David M. Nieporent (www):
Justin, your "either/or" makes no sense.

The constitution requires just compensation when private property (not merely land) is taken for public use. There's no "verbolige" (or "verbalige") -- both of which I assume are misspellings of verbiage -- in there. One could argue that under the language, just compensation is not required for non-public-use, but if we deny that, that doesn't make the "public use" provision "verbiage."

The answer to that oddity is simple: government is given no power to take land for private use at all, so it would make no sense to state a requirement of compensation, any more than it would make sense to state that Congress can't censor people without compensation.
2.2.2008 9:33pm
Justin (mail):
No, it means that the founders didn't consider the legality of private-private takings, since it wasn't an issue in the 18th century. Just because they didn't consider the constitutionality of something doesn't mean it was intended to be banned. Under that logic, the entire administrative state would be unconstitutional - and yet it's not.

And since the Second Amendment is merely for the purposes of militias . . . (oh wait).

Once again, the hypocrisy is amazing. Or did I misspell amusing?
2.2.2008 10:49pm
David M. Nieporent (www):
Under that logic, the entire administrative state would be unconstitutional - and yet it's not.
Sez you.
2.2.2008 11:02pm
brokeland (mail):
With Goldstein, it is impossible for the court to defer to the legislature because the legislature did not make the public use designation and is not involved with the decision to take the properties. Thus no deference should or can be afforded to the legislature. There is nobody to defer to in this case. That is where the court erred.
2.4.2008 6:40pm
David Schwartz (mail):
I agree that the term "direct use" is normally silly. Normally, "use" means "direct use". The only time you need to say "direct use" is when there's some reason it might be confusing.

There are any number of terms that exclude things that normally are excluded anyway. This is simply extra verbiage to prevent misunderstanding. It does not mean that the meaning is different without the qualifiers.

A good example is the phrase "at all". This is very commonly used to clearly exclude things that would be excluded anyway. For example, "this is no fun at all" means precisely the same thing as "this is no fun".

Similarly, use of other phrases can change the meaning of previous phrases outside their normal meaning. If you talk about "direct use and indirect use", then it's clear that the word "use" can mean direct or indirect, but it does not follow that the word "use" when unqualified has both meanings.

For example, "Walking is no fun, but walking in the snow is not fun at all". In this case, the "at all" in the second one changes the meaning of the word "no fun" in the first part. If there can be "no fun at all", then "no fun" might allow a bit of fun even though it normally doesn't.

The situation with "use" is analogous. Unqualified, it means to directly employ the thing used. Not every benefit is a use. I benefit from the fryer at my local Burger King even though I don't use it.

As for "public use", I think it's quite clear that it means directly employed by either the general public or its direct representatives.
2.4.2008 8:06pm