Bethany Berger (University of Connecticut School of Law) has posted Kelo and the Constitutional Revolution that Wasn't (Connecticut Law Review, Vol. 48, No. 1429, 2016) on SSRN. Here is the abstract:
The constitutional revolution called for in response to Kelo v. New London didn't happen. The state political response was more show than substance, and political memory has faded to the extent that we have elected a president whose Trump Casino Hotel was behind an egregious attempted taking in New Jersey. In this response to an excellent article by Wesley Horton (who argued the case for New London) and Brendon Levesque, I reflect on the optics and reality of Kelo and its aftermath. Although New London was a struggling city trying to reclaim a flood-prone, largely abandoned brownfield next to an open sewage treatment plant, the specter of white, female, owners of detached single family homes subject to eminent domain overwhelmed these facts. Meanwhile, Susette Kelo remains a symbol of a state abuse of power, although she translated her legal claim into $442,000 compensation for her little pink house, more than eight times what she paid for it. Although litigation and its stigma derailed the planned development until the Great Recession brought it to a halt, Fort Trumbull today houses industry and public access in a way not possible before redevelopment.
This is not to say that eminent domain abuse is not real, but that there is a great divide between its real victims and those that resonate with property rights advocates. There was little outrage, for example, when Nebraska weakened eminent domain standards to make way for the Keystone Pipeline, or Louisiana did so to bulldoze a New Orleans neighborhood to create a privatized hospital system. Horton and Levesque respond to eminent domain abuse by proposing standards to measure pretext and the likelihood of success of eminent domain projects. But some of the standards they propose already exist, and others would undermine public-private partnerships and require inexpert judges to make decisions better left to planners subject to public vote. The kind of scrutiny we need is that which will allow governments to serve the public interest without unduly favoring the powerful. Kelo, by allowing troubled cities to try to bolster their economies through comprehensive public planning, struck that balance well.
