Main | Kelo: O'Connor Surprise »
Thursday, June 23, 2005
Kelo Group-Blog
Kelo | Posted by Marty Lederman at 11:36 AM
We're hosting here a group blog on the Kelo decision. Unfortunately, some of our participants are out of town today, and may not be able to post until later, but we nonetheless should have a lively discussion.
I'll begin simply by noting that Justice Kennedy's critical fifth-vote concurrence, with its process-based emphasis on whether the local government decision was made pursuant to an ordinary and democratic planning regime, is obviously influenced by the fantastic amicus brief that Tom Merrill of Columbia filed on behalf of the American Planning Association (see especially pages 25-27). The same theme is also sounded in a recent, very prescient article by Gerald Frug and David Barron in the Spring/Summer issue of Harvard Design Magazine.
I think it's fair to say that Lingle/San Remo/Kelo is a serious triple setback for what might be deemed the property-rights crowd, many of whom were very optimistic about finally getting all three issues up to the Court, only to encounter a Court much more hostile than they might have expected. If there was such overconfidence, it probably was unwarranted after Tahoe-Sierra, Palazzolo and Brown. Indeed, after seeing his landmark decision in Keystone threatened by the Justice-Scalia led "takings revolution" in cases such as Lucas/Nollan/Dolan/Phillips/Eastern Enterprises, etc., it appears that, for the time being at least, Justice Stevens has completely won the day, beginning with his opinion in Tahoe-Sierra -- which wisely incorporated a large portion of Justice O'Connor's concurrence in Palazzolo -- and then continuing through Brown, Lingle, San Remo, Kelo, etc. After Lingle and Kelo, it's clear that the multi-factored Penn Central test will almost always govern takings cases. Most of the remaining unresolved issues involve questions about when, if ever, monetary transfers and obligations are takings, and whether monetary assessments are subject to the heightened requirements of Nollan and Dolan.
Is anyone surprised that Justices Kennedy and O'Connor have, to varying degrees (and on different issues), declined to go all the way to what some saw as the logical endpoints of the movement begun in Lucas/Nollan/etc.?
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Comments
Were there property rights advocates who actually believed that the government would lose all three of Lingle, Kelo, and San Remo? Or even 2? I obviously can't talk about the prevailing sentiments at IJ, but before I got here I thought the consensus was that Lingle was no chance and Kelo and San Remo would be very very tough. C.f. Nicole Garnett's post supra.
Posted by: Will Baude at June 23, 2005 12:39 PM
Why is the fact that New London delegated its takings power to a private, unelected development corporation, instead of the Midkiff method of the government transfering the property itself, a bigger issue in this case? A.L.A Schechter Poultry, 295 U.S. 495, 537, and Carter Coal, 298 U.S. 238, 310-312, appear to provide authority for a private nondelegation doctrine.
Posted by: Jeff at June 23, 2005 01:01 PM
I think it's fair to say that Lingle/San Remo/Kelo is a serious triple setback for what might be deemed the property-rights crowd,
Yes. Where I'm from, they're called individual homeowners.
Honestly, I don't know how you people can sleep at night if you agree with this type of theft.
Posted by: bryan at June 23, 2005 09:07 PM