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Abstract

No eminent domain taking case in the last twenty-five years has excited the level of interest, attention, and debate as has Kelo v. City of New London. The Supreme Court’s decision has not quelled that debate. If anything the stridency, the emotional tenor, of the debate has increased. And in the few months since the decision came down, several dozen states (in the absence of any meaningful federal limitation on what constitutes “public use”) have proposed statutes or constitutional amendments that would limit their exercise of eminent domain (taking) powers. There is even talk of federal legislation to temper, to modify, if not overrule, the holding in Kelo. Whether, and/or which of these state proposals will be enacted—whether federal legislation will come to pass is, of course, problematic at this point. But these conjectures and possible state or federal legislative responses to Kelo are not the purpose of this Article. What seems more useful is a delineation of the Kelo case itself, and in particular, the root cases Kelo relied upon; Berman v. Parker, Hawaii Housing Authority v. Midkiff, and to a somewhat lesser extent, Ruckelshaus v. Monsanto. Part I of this Article will argue that Kelo was wrongly decided in at least three important respects: the facts in Kelo are fundamentally different from the facts in the cases purportedly relied upon by the Kelo majority; the Kelo Court misunderstands or misstates the doctrine of “deference”; and finally, the sequencing of reasoning undertaken by the Kelo Court is both at odds with the cases relied upon, and is little more than an “ends justifies means” approach that puts a wide range of constitutionally protected rights at risk (not just the property rights of the Kelo homeowners)—a dangerous precedent. Part II of the Article would recognize, and suggests ending, an unfortunate dichotomy between the Supreme Court’s handling of “regulatory taking” cases, and those “taking” cases that arise in eminent domain settings such as Kelo, Berman, and Midkiff. The argument is made that this dichotomy ought at long last to be bridged—it is inexplicable, it cannot be justified, and it produces unfair (dangerous even) results. The opportunity to harmonize these two strands of our takings jurisprudence was missed in Kelo. But there will be other cases, and hopefully a Supreme Court better prepared to tackle this essential task.

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