On Tuesday, the U.S. Supreme Court heard arguments in the eagerly-anticipated Kelo vs. New London eminent domain case. By most accounts, the tone of the hearing left the impression that the Court was unlikely to step in and overturn precedent, much to the delight of those backing the city’s pro-eminent domain position. Property-rights advocates will likely have to regroup and fight another day. According to the New York Times:
Reason’s own Sam Staley offered this response:
Sam also notes that the Institute for Justice (the law firm representing the property owners) asked the Court for what seems like a very reasonable restraint on the power of eminent domain: requiring that the benefits from economic development projects be “reasonably foreseeable.” This would require cities to establish some baseline standards to demonstrate that the economic benefits are likely to come about. This would be far from the victory that property-rights advocates are seeking, but it would at least place some boundaries around the eminent domain power and likely stave off the most egregious condemnation cases. We’ll have to wait and see what happens this summer when the Court’s decision is rendered. In the meantime, the blog world has been weighing in on the Kelo hearing. Here’s a sampling:
- New London = Old Moscow from Professor Bainbridge (more from the Prof here).
- JurisPundit doesn’t think things look as bad for the Kelo plantiffs as reports would suggest.
- One of the writers at Ex Post takes the temperature of the Court and opines that the Court probably wouldn’t have taken the case had there not been a potential to narrow the boundaries established in previous eminent domain cases.
- Marty Lederman at SCOTUSBlog isn’t betting on the homeowners’ side, but finds a silver lining: that this case may open the door to reconsidering the traditional measures of just compensation under the Fifth Amendment.
- Orin Kerr at the Volokh Conspiracy poses a “simple” question about the Takings Clause, though judging by the comments the answer isn’t that clear cut.
- Pejman Yousefzadeh weighs in on Kelo and outlines a framework for legislation to curb the abuse of eminent domain.
UPDATE: David Sucher at City Comforts Blog makes an interesting suggestion:
That last thought is powerful and one to savor.