Somin on Progress of Property Rights Reform

The political response to Kelo has led to reforms, but it also has led to enactment of ineffective or meaningless laws says Professor Ilya Somin, blaming the problem in part on public ignorance of eminent domain issues.

Referendum initiatives drafted by activists who do not have to appease special interest groups tend to be more effective than most legislative reforms, Somin comments, citing various initiatives across the United States as evidence that political backlash to Kelo has not been as effective as might be expected.

Post-Kelo America: Assessing the progress of property rights reform, reasononline, April 20, 2007. By Ilya Somin.

"Nearly every state legislature has either adopted or considered legislation to curb eminent domain, but only 14 have enacted laws that actually provide significantly increased protection for property rights. Seventeen states have passed laws that purport to restrict eminent domain but actually accomplish very little. Texas, for example, banned 'economic development' takings, but it continues to permit them under other names, such as 'community development.' The most common tactic—used in some 15 states— post-Kelo laws—is to allow economic development condemnations to continue under the guise of alleviating 'blight.' While it may sometimes be desirable to use eminent domain to transform severely dilapidated areas, many states define 'blight' so broadly that almost any neighborhood qualifies. A 2003 Nevada Supreme Court decision, for example, concluded that downtown Las Vegas is blighted. Similarly, a 2001 New York appellate decision held that Times Square is blighted, paving the way for the condemnation of property to build a new headquarters for The New York Times.

"What's more, the states in most need of reform tend to be the least willing to adopt it. Consider the 20 states that have the largest numbers of Kelo-like condemnations, according to data compiled by the Institute for Justice, the public interest law firm that represented the property owners in Kelo. Thirteen of them have enacted either ineffective legislation or none at all. Moreover, two of the states with otherwise effective reforms exempted the parts of those states where most condemnations occur. Pennsylvania's reform includes a five-year exemption for Philadelphia and Pittsburgh, and Minnesota's exempts the Twin Cities area, also for five years. By then, the political uproar over Kelo will likely have subsided, making it easier to extend the exemptions without much public scrutiny.

"Similar shortcomings have bedeviled reform efforts at the federal level. President Bush's June 23, 2006, executive order on Kelo, for example, banned the use of eminent domain for 'private development,' but allowed takings for private owners who promise to use the land for both private and 'public' development. This is the exact argument accepted by the Supreme Court in Kelo, and therefore does little to mitigate the decision's reach. Legislation enacted by Congress in 2005 has been similarly ineffective."

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