« O'Connor's dissent | Main | Kelo and federalism »
Saturday, June 25, 2005
Bob Ellickson on Kelo
Kelo | Posted by Marty Lederman at 07:36 PM
Professor Robert Ellickson writes:
Contrary to all the Kelo-inspired popular talk about the demise of property rights, the trend over the past 40 years has been otherwise (thanks in significant part to Jane Jacobs). Following the Court's decision in Berman in 1954, cities were profligate in their use of eminent domain. In New Haven (my city, and admittedly an extreme case), about 15% of the population was forcibly displaced during the 1960's and 1970's. Today this sort of dislocation would be both politically and legally impossible. The popular reaction to Kelo is one indication of how sentiment has changed. Another is that the designers of the huge Big Dig highway project in central Boston deliberately bent over backwards to avoid having to displace a single resident. In short, the Institute for Justice should be delighted that popular opinion has moved so sharply its way. I actually worry that political opposition to eminent domain may go too far, as it has in Japan, where completion of the second runway at Tokyo's Narita Airport has proved to be impossible.
I largely agree with Tom Merrill's sentiments about the opinions in Kelo. The IJ has helped shift the Court's discussion toward greater respect for property owners' interests. Even Justice Stevens's opinion for the majority is a far cry from the undemanding rational-basis approaches adopted in both Berman and Midkiff. According to statistics gathered by Tom Merrill and (later) Corey Wilk, between 1953 and 2003, landowners prevailed on the public use question in just one out the 31 reported federal cases on the issue. (They prevailed about 17% of the time in the state courts.) After Kelo, this may well change. In sharp contrast to Berman and Midkiff, all four Kelo opinions are rich with ammunition for opponents of government projects.
I happen to strongly oppose, on policy grounds, virtually all economic-development initiatives of the New London stripe. They tend to be boondoggles that waste taxpayer money, coerce the politically weak, and corrupt the political process. But unlike the IJ, I do not favor strong national constitutional constraints in policy arenas where state policies would not have significant interstate consequences. On issues such as the use of eminent domain for economic development (as well as issues such as abortion, same-sex marriage, and euthanasia), isn't it better to let states develop independent policies? I'd prefer that the main battlegrounds on eminent domain issues be city halls, state capitals, and state supreme courts, not the federal courts. On that important structural question, I agree in this instance with Justice Stevens, not Justice O'Connor.
Trackback Pings
TrackBack URL for this entry:
http://www.scotusblog.com/movabletype/mt-tb.cgi/554
Listed below are links to weblogs that reference Bob Ellickson on Kelo:
» Waxing Libertarian On Eminent Domain from Joe's Dartblog
A comment at SCOTUS blog: "I actually worry that political opposition to eminent domain may go too far, as it has in Japan, where completion of the second runway at Tokyo's Narita Airport has proved to be impossible." I wonder... [Read More]
Tracked on June 26, 2005 01:23 AM
» Disappointment and Dismay cried the needles and pins from Crescat Sententia
Kaimi Wenger is "disappointed" and surprised by the outrage that Kelo has engendered in the blogosphere. and Marty Lederman asks similar questions. The answer, which I hope is obvious, is that a lot of people think the court's decision was... [Read More]
Tracked on June 26, 2005 06:28 PM
» Disappointment and Dismay cried the needles and pins from Crescat Sententia
Kaimi Wenger is "disappointed" and surprised by the outrage that Kelo has engendered in the blogosphere. and Marty Lederman asks similar questions. The answer, which I hope is obvious, is that a lot of people think the court's decision was... [Read More]
Tracked on June 26, 2005 06:28 PM
» A thoughtful pro-Kelo comment from City Comforts Blog
Prof. Robert Ellickson opines here: I happen to strongly oppose, on policy grounds, virtually all economic-development initiatives of the New London stripe. [Read More]
Tracked on June 28, 2005 02:00 PM
» free online texas hold em poker from free online texas hold em poker
Take your time to visit some relevant information dedicated to Play Poker Online for Free on multiple tables [Read More]
Tracked on August 8, 2005 03:11 PM
» airports from airports
airports [Read More]
Tracked on August 10, 2005 10:16 AM
» airports from airports
airports [Read More]
Tracked on August 10, 2005 10:16 AM
» airports from all airports
best airports of the world [Read More]
Tracked on August 12, 2005 05:59 PM
» airports from all airports
best airports of the world [Read More]
Tracked on August 12, 2005 05:59 PM
» tetrabat from bookcase bubbles bugspray bulbs cleans
tetrabat [Read More]
Tracked on August 16, 2005 02:28 AM
» Rape pics preeteen from Shemale fuck horse
Anime lesbian video Free daily milking movie Free samplemature Sex movie rm [Read More]
Tracked on August 18, 2005 02:44 PM
» Dominance stories free from Japan sex bdsm
Free clip porno trailers Porno pictures dad Free free voilent porn Hot sex rape with w... [Read More]
Tracked on August 18, 2005 03:40 PM
» Torture man sex from Porno xxx piss
Wife & woman sex gallery Indonesian gay male Japan porn movie clip Fuck father daughter little free pics [Read More]
Tracked on August 19, 2005 12:09 AM
» Origin of Texas Holdem from Origin of Texas Holdem
Please check the sites in the field of free online no limit texas holdem [Read More]
Tracked on August 22, 2005 01:32 AM
» gay boys in boxers from
gay black gay twins free gay sex free gay pictures gay anime gay ass [Read More]
Tracked on August 24, 2005 03:00 AM
» givstack from alzheimer antiage babysleep bully calo
givstack [Read More]
Tracked on August 30, 2005 02:58 PM
» algerema from armoires balloon basket battery bench
algerema [Read More]
Tracked on September 1, 2005 10:08 PM
» gay interracial male sex from gay interracial male sex
watch free gay porn, boys mastubation, gay ass licking cocks gay... [Read More]
Tracked on September 3, 2005 02:49 AM
» free live online poker strip from free live online poker strip
Take your time to check out the sites on Free Sex Strip Poker Games [Read More]
Tracked on September 3, 2005 02:53 PM
» buy viagra from buy viagra
Take your time to visit some helpful info about buy phentermine cheap phentermine [Read More]
Tracked on September 8, 2005 02:25 PM
» dating from dating
dating [Read More]
Tracked on September 9, 2005 04:55 AM
» dbz hentai from
whipping bizarre anime babes shemale housewife close up of a pussy gang violence [Read More]
Tracked on September 15, 2005 08:26 AM
» black and white from
rape fantasy mardi gras girls free public records mature babes beastiality bang boat [Read More]
Tracked on September 15, 2005 08:26 AM
» animals from
rape fantasy horse cock free rape stories dog fucking brutal sex humiliation [Read More]
Tracked on September 15, 2005 08:26 AM
» 5 chip star poker from 5 chip star poker
You are invited to check out the pages about SCAN PARTY POKER IP [Read More]
Tracked on September 23, 2005 08:30 PM
» am 300 diet pill from am 300 diet pill
Take your time to check the sites on diet pills diet pills [Read More]
Tracked on September 26, 2005 01:10 AM
» casino gambling from casino gambling
casino gambling I sepa sorry to reship what you wiste me of your over-subtlety, but legs are not so street-vending to many [Read More]
Tracked on September 27, 2005 04:46 AM
» freeroll online poker tournments from freeroll online poker tournments
In your free time, check the pages dedicated to texas holden strategy guides for online poker [Read More]
Tracked on September 30, 2005 06:48 AM
» buy tamiflu from buy tamiflu
buy tamiflu [Read More]
Tracked on November 11, 2005 02:39 AM
» Flash Casino from Flash Casino
Thank you for your interest in Flash Casino. You will need to have JavaScript and cookies turned on in order to download the trials. The trials are accessed via a pop-up window, so you may need to turn off your pop-up blocker temporarily. Visit [Read More]
Tracked on March 20, 2006 10:30 PM
» Nancy Thomas from Paul Jackson
New interesting theme
[Read More]
Tracked on April 12, 2006 11:40 PM
» Nancy Thomas from Paul Jackson
New interesting theme
[Read More]
Tracked on April 14, 2006 04:49 AM
» casinos en ligne from casinos en ligne
casinos en ligne est la plus large organisation de casinos en ligne de l'Oregon et l'une des plus grandes organisations d'écrivains des Etats-Unis. Cherchez ce symbole de ressources de casinos en ligne. Ce... [Read More]
Tracked on April 19, 2006 06:09 PM
» roulette en ligne from roulette en ligne
Le répertoire de roulette en ligne comporte 41 catégories et 1400 sous catégories spécifiques au roulette en ligne. Merci de votre intérêt pour le roulette en ligne. Le matériel ci-joint va vous apporter ... [Read More]
Tracked on April 20, 2006 08:47 AM
» hotel rooms from
[Read More]
Tracked on April 28, 2006 01:51 PM
» barbados hotel from
[Read More]
Tracked on April 29, 2006 12:57 AM
» hotel luxemburg from
[Read More]
Tracked on April 29, 2006 09:58 AM
» miramar hotel from
[Read More]
Tracked on April 29, 2006 09:59 AM
» buy cheap viagra from buy cheap viagra
[Read More]
Tracked on June 5, 2006 11:46 PM
» buy carisoprodol from buy carisoprodol
[Read More]
Tracked on June 16, 2006 11:06 AM
» Nancy Thomas from Paul Jackson
Animal pics
[Read More]
Tracked on June 17, 2006 06:52 PM
» Nancy Thomas from Paul Jackson
Gay incest
[Read More]
Tracked on July 7, 2006 11:50 AM
» flash casino from flash casino
Thank you for your interest in flash casino. In order to serve you best, please fill out the flash casino following information. A representative will contact you shortly. flash casino goal is to provide and enc... [Read More]
Tracked on July 17, 2006 10:47 AM
» Nancy Thomas from Paul Jackson
Pissing sex
[Read More]
Tracked on July 27, 2006 03:08 PM
» Nancy Thomas from Paul Jackson
Shemale sex
[Read More]
Tracked on August 4, 2006 11:07 PM
» Nancy Thomas from Paul Jackson
Gay dating
[Read More]
Tracked on August 9, 2006 03:37 PM
» nodules in the thyroid from nodules in the thyroid
[Read More]
Tracked on December 17, 2006 05:31 PM
» rape victims from rape victims
rape victims [Read More]
Tracked on December 19, 2006 12:31 AM
» incest orgy from incest orgy
incest orgy [Read More]
Tracked on December 20, 2006 01:35 PM
» sample bankruptcy form from sample bankruptcy form
[Read More]
Tracked on January 22, 2007 08:20 AM
» casa vendita roma from casa vendita roma
casa vendita roma [Read More]
Tracked on January 26, 2007 02:46 PM
» over from our
better [Read More]
Tracked on February 8, 2007 01:32 PM
» rape sex from rape sex
rape sex [Read More]
Tracked on March 27, 2007 11:53 AM
» easter clipart from easter clipart
easter clipart [Read More]
Tracked on April 1, 2007 03:04 AM
» prodotti biologici from prodotti biologici
prodotti biologici [Read More]
Tracked on April 2, 2007 12:20 AM
» says from will
try and do [Read More]
Tracked on April 5, 2007 09:56 PM
» Rape sex from Rape sex
Rape sex [Read More]
Tracked on April 8, 2007 02:22 AM
» Incest porn from Incest porn
Incest porn [Read More]
Tracked on April 8, 2007 08:13 AM
» Incest porn from Incest porn
Incest porn [Read More]
Tracked on April 12, 2007 04:20 AM
» Rape from Rape
Rape [Read More]
Tracked on April 14, 2007 02:43 PM
» Incest from Incest
Incest [Read More]
Tracked on April 15, 2007 02:58 PM
» Incest from Incest
Incest [Read More]
Tracked on April 18, 2007 12:49 AM
» Incest Porn from Incest Porn
Incest Porn [Read More]
Tracked on April 21, 2007 05:13 PM
» Incest Porn from Incest Porn
Incest Porn [Read More]
Tracked on April 21, 2007 09:03 PM
» Incest Porn from Incest Porn
Incest Porn [Read More]
Tracked on April 27, 2007 03:06 PM
» sports handicapping from sports handicapping
shit-happens 2245331 News about sports handicapping. [Read More]
Tracked on June 17, 2007 09:09 PM
» confession dashboard from confession dashboard
shit-happens 2245331 Search results for 'confession dashboard'. [Read More]
Tracked on June 21, 2007 09:15 AM
» facial monster from facial monster
shit-happens 2245331 The best of facial monster. [Read More]
Tracked on June 26, 2007 05:59 PM
» jaci burton from jaci burton
shit-happens 2245331 Fresh news on jaci burton. [Read More]
Tracked on June 27, 2007 04:14 PM