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Thursday, June 23, 2005
Agreeing with Tom Merrill
Kelo | Posted by Ilya Somin at 04:07 PM
I would like to note my agreement with most of Tom Merrill's excellent post on the meaning of Kelo (see below). Given that Prof. Merrill and I wrote amicus briefs supporting opposing sides in the case, it is significant that we both agree that Justice Kennedy's concurrence raises the bar the government has to meet to show that a condemnation serves a public use. At the very least, it is no longer the case that a taking serves a public use so long as it is "rationally related to a conceivable public purpose" - the ultra-deferential language often cited from the 1984 Midkiff case.
Obviously, I am much less satisfied with Justice Kennedy's approach than Prof. Merrill seems to be (I agree with the dissenters' arguments in favor of banning economic development takings entirely), but it is still noteworthy that academics with such different perspectives have interpreted Kelo and Kennedy's opinion in much the same way.
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