Last week, on June 23, was the 20th anniversary of Kelo v. City of New London, perhaps the most controversial property rights decisions in the history of the Supreme Court. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution.
The Federalist Society organized a webinar on the occasion. The participants were Peter Byrne (Georgetown), Wesley Horton (counsel for New London in the case), Timothy Sandefur (Goldwater Institute), and myself. My George Mason University colleague Prof. Eric Claeys – a leading property law scholar – moderated. Peter Byrne and Wesley Horton are generally sympathetic to the result the Court reached, while Tim Sandefur and I are opposed to it. Below is the video of the event:
Last week, I also an article at the Brennan Center State Court Report website asssessing the massive state response to Kelo, which saw 45 states enact eminent domain reform laws, and several state supreme courts repudiate Kelo as a guide to the interpretation of their state constitutions’ public use clauses.
I also have a new article entitled “Public Use, Exclusionary Zoning, and Democracy,” available for free download on SSRN. It is part of a forthcoming Yale Journal on Regulation symposium on the 20th anniversary of the case.
The article builds in part on my book about Kelo and its aftermath, The Grasping Hand, and also on my recent article “The Constitutional Case Against Exclusionary Zoning,” 103 Texas Law Review 1 (2024) (with Joshua Braver). It has already secured a much-coveted “highly recommended” rating on Prof. Larry Solum’s Legal Theory Blog.
