Post-KeloReform: Is the Glass Half Full or Half Empty?

Abstract

This paper examines the legislative and judicial response to the controversial Supreme Court decision in Kelo v. City of New London, which sustained the exercise of eminent domain for economic development purposes by private parties. It maintains that Kelo amounted to an expansive reading of the “public use” requirement that moved beyond existing doctrine. The paper finds little prospect for action at the national level to curb economic development takings. Much of the paper is devoted to an analysis of events at the state level. It takes a close look at the outpouring of state legislation and constitutional amendments adopted in reaction to Kelo, concluding that the efficacy of such measures varies widely from jurisdiction to jurisdiction. A common problem is an open-ended exception for “blight” takings. State courts have provided a more promising avenue to limit the free-wheeling exercise of eminent domain. Even before Kelo several state supreme courts barred economic development takings. Moreover, two state supreme courts have expressly rejected the reasoning in Kelo. Others have demonstrated greater skepticism about condemnations for economic development or to combat “blight.” To date most post-Kelo reform efforts have not totally shut the door on economic development takings. But Supreme Court decisions sometimes highlight long-ignored issues. One result of Kelo has been heightened public awareness of the need to reign in eminent domain and safeguard the rights of property owners.