ABA Journal: Eagle and Somin on Eminent Domain After Kelo

Despite the fact that the Supreme Court's 5-4 vote in Kelo v. City of New London provoked a significant public backlash, Professors Steven Eagle and Ilya Somin maintain that most land use laws adopted since the court's decision fail to provide significant protection for private ownership of property.

Since the Court's 2005 decision in Kelo upheld that the actions of the City of New London did not violate the takings clause of the Fifth Amendment, 43 states have passed laws restricting use of eminent domain. In addition, several state supreme courts, Congress, and the executive branch have all acted to limit Kelo-type takings.

Eagle says that in spite of those actions, most of the legislation really does not do much to protect from eminent domain abuse because state and local governments are still permitted to use eminent domain to condemn private property in "blighted" areas. "In many states, the definition of blight is so open-ended that almost any parcel can be considered blighted," says Eagle.

Analyzing the statutes, Somin has determined that some 20 states have adopted laws that effectively restrict Kelo-type takings by narrowing the definition of blight. New Mexico and Florida, with a history of takings designed to further economic development, have joined Utah to become the states with the most restrictive legislation against takings, abolishing both Kelo-type takings and condemnations to reduce blight.

Where's the Revolution? ABA Journal, April 2009. By Steven Seidenburg.

"Even with the flurry of actions by legislatures and courts, eminent domain powers may be restricted more by public opinion than by law.

"In that sense, Kelo seemed to wake a sleeping giant. While the Supreme Court was following long-standing precedent rather than carving out new government powers when it decided the case, Kelo caught the public’s attention—and triggered its anger—in a way that previous decisions on eminent domain did not. Even though the decision upheld government condemnation powers, the close vote of the justices seemed to reflect rising public fears that the cherished right of private property ownership was subject to growing incursions by government with little to show in return.

"'Berman licensed massive "urban renewal" and blight condemnations that ended up displacing hundreds of thousands of people,' says Somin. 'At the time, most jurists and others thought that this was acceptable. Since then, serious doubts have arisen about whether we forcibly displaced huge numbers of people for little or no gain.'

"The public’s hostility to Kelo led many government officials to reconsider how they use their powers.

"'Municipalities are doing this less than they used to because opposition to eminent domain has become much more frequent and well-organized,' says Berliner of the Institute for Justice. 'A lot of the proposals get hit with overwhelming public opposition, so cities find a way to do without eminent domain, which is what they should have been doing all along.'"

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