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Thursday, June 23, 2005
Privatization, Justice Thomas and the little guy
Kelo | Posted by Nicole Garnett at 08:03 PM
First, thanks to Ilya for posting Eugene's provocative question. The real problem with private/economic development takings is that they are an invitation to rent seeking. Why bargain if you can get the government to bypass the market for you? The FMV standard virtually guarantees that you will pay less than the bargained-for price. (If you pay anything at all; the government gives away the land in many cases.) That said, if the government is permitted to take land and give it away, isn't some kind of "planning requirement" potentially problematic? After all, private property owners are much more likely to make wise and efficient decisions about land use than the government. Elaborate planning requirements frequently are cited as one of the reasons that Urban Renewal failed so miserably. And, the many thousands of "public-private partnerships" are rarely commended for their efficiency.
Second, Thomas distinguishes himself, yet again, from the rest of the Court's conservatives -- especially for his repeated focus on the little guy. See also, e.g., Morales, Zelman, etc. I was not surprised by Justice Thomas's dissent. But I hope that others take note of it, especially his point (also made in Ilya's amicus brief) that the Court's "upscaling-as-public-use" regime could have the effect of empowering the powerful at the expense of the weak.
As Thomas notes, urban renewal wreaked havoc on urban communities populated by the political powerless (particularly those populated by African-Americans). It is my sense that most people recoil in horror when presented with classic "public use" facts. (My colleague Julian Velasco reports that his non-lawyer brother called to express his outrage within minutes of the Kelo decision). Unfortunately, these takings frequently occur at the local level, where cities use "desperation" as an excuse for abuse. Perhaps some state legislative reform -- motivated by concern for the "little guy" -- could help address this problem.
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Comments
Legislative reform...I almost chuckled.
Posted by: JMOORE at June 23, 2005 09:09 PM
One of the problems with equating this with the difficulties seen in urban renewal is that difference in planning schemes. Urban renewals failed for a myriad of reasons, but one significant recurring theme was that when an area was evaluated it was done on such a micro level that there was no lasting change. If a particular block was blighted and surrounded by several blocks that were in disrepair, the blighted block was given attention while the surrounding area was ignored. We had an attempt to treat symptoms without treating the cause for lack of a better term.
IMHO, a full scale planning situation such as the one in this case is distinguishable from the problems with planning/scaling that we saw with urban renewal previously. It is, in fact, exactly the kind of planning most civil engineers and city planners wanted to see done but were not allowed to do.Posted by: Joel at June 24, 2005 10:03 AM