by Robin Paul Malloy (ed). Burlington, VT: Ashgate, 2008. 230pp. Hardback. $99.95/£55.00. ISBN: 9780754672111.
Reviewed by Andrew P. Morriss, College of Law, University of Illinois, Urbana-Champaign. Email: morriss [at] illinois.edu.
This volume provides eight chapters addressing some of the important issues raised by the controversy over the Supreme Court’s decision in KELO v. CITY OF NEW LONDON. As is inevitable in such a collection, the chapters are uneven and different audiences will find different chapters more or less useful. In addition to the substantive chapters, the book includes the KELO opinions, a table of cases and a consolidated bibliography. The inclusion of the KELO opinions would be useful mostly if the book were used as the basis for a seminar on eminent domain. However, the book’s high price and relatively short length (just 164 pages are devoted to the substantive chapters) make it less likely to be adopted for such purposes than if it were priced less expensively. This is unfortunate, as the book could readily serve as the core readings for such a course.
The first chapter, by Syracuse University law professor Robin Paul Malloy and University of Georgia law professor James Charles Smith, is a brief overview of the issues raised by the use of eminent domain to promote development and how different legal systems attempt to cope with them. The framework developed is then applied to the majority and dissenting opinions in KELO. Like most of the chapters in the book, this one has a strong point of view on the merits in KELO, arguing that the widespread criticism of the majority opinion was unwarranted. Malloy and Smith are important figures in property law, and learning their views on the case is useful. Unfortunately, their point of view is shared by almost all of the book’s authors, providing a less than complete picture of the legal academy’s assessment of KELO and its context. In addition, their account of the overall context of eminent domain’s use for economic development is one that is hotly contested in the academy, and including more material by critics of the process would have made the book a more useful teaching tool. The chapter is also too short, leaving the reader with a desire to hear more about what Malloy and Smith think about the issues they raise.
In the second chapter, University of Florida law professor Michael Allan Wolf compares the media’s responses to KELO and to the two other key post-World War II eminent domain cases, BERMAN v. PARKER and HAWAII HOUSING AUTHORITY v. MIDKIFF. The chapter performs a useful service by collecting media accounts of the three decisions from a wide range of sources. To explain why BERMAN and MIDKIFF produced almost no public controversy or media attention while KELO produced a firestorm, Wolf provides a list of five key differences, [*235] ranging from the influence of the Reagan years on property rights thinking to the rise of conservative talk radio. The chapter is less useful than it could have been, however, because Wolf lets his distaste for conservative points of view on property rights color his analysis. He also fails to give sufficient attention to the role of the Institute for Justice, a Washington, D.C. libertarian public interest law firm that not only represented Susette Kelo but also spearheaded the post-decision campaign for state laws restricting the use of eminent domain. As with the first chapter, Wolf’s essay would have been better if it was balanced by an analysis of the media from an opposing view point. (Readers seeking such an account should read Nadler, Diamond, and Patton (2008), and Somin (2009).
Chapter three, by George Mason University law professor Eric Claeys, examines the natural law maxim that “a man’s home is his castle” in light of the KELO decision, finding that the aphorism is more complex than is often acknowledged, providing protection not just for a homeowner faced with a proposed economic development eminent domain action, but also for a developer, business, or low income tenant resisting middle class efforts to zone them out. He concludes by noting that “the castle metaphor challenges home owners whether they are prepared to take the bitter with the sweet” (p.55). I have long been a fan of Claeys’ work on property rights precisely because he finds such interesting questions lurking beneath the surface, and this chapter is among the most interesting in the book because it challenges the easy reading of the issues posed by eminent domain as solely between the individual homeowner and the state.
One of the puzzles in KELO is how Justice Sandra Day O’Connor moved from author of the majority opinion in MIDKIFF in 1984 to the author of a stinging dissent in KELO in 2005, providing one of the most quoted lines from the KELO opinions that “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carleton, any home with a shopping mall, or any farm with a factory.” In chapter four, Widener law professor Ben Barros examines the Supreme Court’s conference notes from MIDKIFF and BERMAN to determine whether Justice O’Connor’s effort to explain away this seeming inconsistency is successful. He concludes that her account of MIDKIFF is not supported by the conference notes and that the stronger position would have been for her to argue that BERMAN and MIDKIFF were incorrect and should be overruled. This is a fabulous use of the historical material, and this chapter ought to be required reading for any student, professor, or lawyer contemplating the BERMAN-MIDKIFF-KELO trilogy and scratching his or her head over O’Connor’s changing position.
Chapter five, authored by University of Durham law professor Tom Allen, offers a comparative view, describing the legal framework for eminent domain in Britain. The chapter’s account of how the differences in institutions produce totally different public debates is an excellent example of the impact of the law on framing policy questions. Perhaps most crucial is the difference in how local governments raise funds. British localities are not dependent on [*236] local real estate taxes, thus losing an important incentive to use eminent domain to lure new tax payers to their jurisdictions. And the British state exercises considerable control over local governments’ ability to compete for economic development, effectively cartelizing what is a highly competitive marketplace in the United States. The chapter develops these points in a thorough examination of several development projects. Any course examining economic development and eminent domain would benefit from including this chapter among its readings.
In the sixth chapter, Seton Hall law professor Marc Poirer puts KELO into the context of another 2005 Takings Clause case, SAN REMO HOTEL v. CITY AND COUNTY OF SAN FRANCISCO. Poirer, an important voice in property law on the left, sees these two cases as part of the Court’s overall deference on land use issues to “state and local fora and processes” and away from “inflexible federal standards” applied by the federal courts. Poirer mounts a more articulate policy defense of the KELO outcome than does Justice Stevens’ majority opinion. However, Poirer’s reading of the contours of the dispute in KELO is hardly the only possible account of the transaction at issue in that case. In particular, there is considerable evidence of rent-seeking in which a large corporation and local political class used the political process to expropriate property for their own benefit. Indeed, the vagueness of the planning process in KELO, which showed Ms. Kelo’s home being used only for “park support” purposes, raised important questions about the fairness and purpose of the local government’s actions. Here the weakness of the book is not internal to the chapter – Poirer presents an interesting and thoughtful defense of KELO – but that the chapter is not presented within a continuum of interpretations.
Chapter seven, by Seton Hall law professor Rachel Godsil and law student David Simunovich, explores the issue of just compensation for a taking in the context of several proposed reforms designed to elicit truthful reporting of property owners’ self-valuations. These are important issues, and the chapter provides a careful examination of many of the current policy options. It does not discuss the post- KELO state law reforms designed to limit eminent domain abuse by increasing compensation, a curious omission from the book as a whole.
The final chapter, by University of North Carolina law professor Carole Necole Brown, places eminent domain in the context of post-natural disaster development. Unfortunately, the chapter’s valiant attempts to do this within the context of KELO, so as to fit within the book’s overall themes are distracting, as KELO has no direct relevance to the post-natural disaster context. The chapter also examines Michigan’s back-and-forth on state constitutional issues relating to economic development eminent domain in POLETOWN NEIGHBORHOOD COUNCIL v. CITY OF DETROIT and COUNTY OF WAYNE v. HATHCOCK. As with KELO, the fit between the issues in the two Michigan cases and the post-natural disaster context is rough at best, making it difficult to connect the legal issues in the cases to the policy questions raised in [*237] the chapter. The reader is left wishing that Brown had been told to forget KELO and the Michigan opinions and develop her analysis of the post-natural disaster context as a distinct area of Takings jurisprudence.
Overall, this book presents a series of interesting analyses of issues (mostly) arising out of KELO, written by a largely left-leaning group of law professors. While individual chapters would be extremely useful in seminars on takings, community development, or property, the collection as a whole suffers from the lack of multiple view points on issues where there are unrepresented, well-articulated positions that would add valuable context. Moreover, considerable time is devoted to summarizing KELO repeatedly – an initial chapter providing a broad overview of the case could have eliminated considerable repetition in what is already a slender volume. The publisher’s unfortunate pricing decision, particularly for such a slim collection, also hinders its potential to serve as a course text. Despite these complaints, there is considerable value in this too short volume, and anyone working on scholarship on takings and economic development, KELO, or related topics will want to consult it.
Nadler, Janice, Shari Seidman Diamond, and Matthew M. Patton. 2008. “Government Takings of Private Property: Kelo and the Perfect Storm.” In PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY. Nathaniel Persily, Jack Citrin, and Patrick Egan (eds). New York: Oxford University Press.
Somin, Ilya. 2009 (forthcoming). “The Limits of Backlash: Assessing the Political Response to Kelo.” 17 SUPREME COURT ECONOMIC REVIEW.
BERMAN v. PARKER, 348 U.S. 26 (1954).
COUNTY OF WAYNE v. HATHCOCK, 471 Mich. 445 (2004).
HAWAII HOUSING AUTHORITY v. MIDKIFF, 467 U.S. 229 (1984).
KELO v. CITY OF NEW LONDON, 545 U.S. 469 (2005).
POLETOWN NEIGHBORHOOD COUNCIL v. CITY OF DETROIT, 410 Mich. 616 (1981).
SAN REMO HOTEL v. CITY AND COUNTY OF SAN FRANCISCO, 545 U.S. 323 (2005).
© Copyright 2009 by the author, Andrew P. Morriss.