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Friday, June 24, 2005
Commentary by Kelo's lawyers
Kelo | Posted by Ilya Somin at 12:26 PM
Dana Berliner and Scott Bullock, the Institute for Justice lawyers who represented Kelo in the case have been following our discussion, and have asked me to post the following commentary, which criticizes some of our posts and also makes some good points about the case as a whole. I agree with many, though not all, of their contentions.
Dana and Scott litigated Kelo all the way from the state trial court to the US Supreme Court and are also the key architects of IJ's extremely well thought out legal strategy for changing the law of public use. Agree or disagree, their thoughts on Kelo are certainly required reading for anyone interested in the case:
_______________________________________________________
Kelo was the right case to bring to the Supreme Court
We have noticed a number of comments on this site suggesting that Kelo was somehow not the right case to bring and that a case more like the 99 Cents case would have been better. We believe Kelo was in fact the perfect case to bring, because it presented the issue as most people face it.
The Court did suggest that projects that don't go through a planning process might still be subject to challenge. The problem is that virtually every project in the country has a plan and goes through a planning process. There are a few outliers where the local government was too stupid or careless to do that, but they are few and far between. Instead, most projects are just like the project in Kelo. There was no outright corruption, although the process miraculously resulted in a project that exactly met the desires of a private party (in this case Pfizer). The result of the process, while purporting to have community input, was a foregone conclusion even before any of the hearings started.
Yes, Kennedy's concurrence hinted that maybe if there was outright evidence of collusion he would have voted for property owners. One out of a hundred cases, if that many, has some kind of direct evidence of corruption (and that would be illegal anyway under statute). That's not the problem. The problem is that you don't even need corruption or bribery. Why bribe your city officials if all you need to do is come up with a "plan" that shows you can make more money than someone else on a piece of property? And if we had brought 99 Cents and got a decision that told us that eminent domain when there is corruption is bad, we wouldn't have anything and that decision would be of use to almost no one.
Kelo had one element that, again, many people experience but that was not present in 99 Cents: the city doesn't even know what it was going to do with the property. That should be struck down as a speculative taking, but instead the Supreme Court is actively encouraging speculation. There is a gaping hole in Steven's opinion where he says that we don't know if there are private beneficiarcies here because WE DON'T KNOW WHO THOSE BENEFICIARIES ARE! How perverse! It is an open invitation to cities to do speculative takings. Condemn now, don't name the beneficiary, and then cut the sweetheart deals later on. A fiasco in the making!
Unlike the speculative takings in Kelo, in 99 Cents, the taking actually was going to result in "economic development." Costco was set to build on the site. It definitely was going to produce more taxes than the 99 Cents store. Costco was one of the largest tax payers in Lancaster, and if it had left, the loss of Costco would have had a very real and direct impact on the public. That was all part of the record. The Lancaster government actually had a stronger claim than New London that the taking would result in "public benefit."
The majority and the Kennedy concurrence offer some tiny room for future legal challenge. Those few condemnees in cities that don't bother to do plans or who actually engage in corruption may still be able to bring federal constitutional challenges. But the vast majority of individuals are left entirely without federal constitutional protection. If the majority thinks they offered any meaningful protection, they are completely disconnected from reality.
Dana Berliner and Scott Bullock
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