• 91. An Act to Establish a Moratorium on Eminent Domain, S.B. 167 § 2, Ohio Gen. Assem. (Ohio 2005) [codified at Ohio Rev. Code Ann. § 1426 (Lexis-Nexis 2005 Bulletin #5)].

• 92. Ibid.

• 93. Ibid.

• 94. Ohio Rev. Code Ann. § 303.26(E) (LexisNexis 2003) (defining blight to include deteriorating structures or where the site “substantially impairs or arrests the sound growth of a county, retards the provision of housing accommodations, or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare”).

• 95. An Act to Establish a Moratorium on Eminent Domain, S.B. 167 § 3, Ohio Gen. Assem. (Ohio 2005) (codified at Ohio Rev. Code Ann. 1426 (Lexis-Nexis 2005 Bulletin #5)).

• 96. For a detailed analysis of the commission’s composition, see Somin, “Controlling the Grasping Hand,” 249.

• 97. Final Report of the Task Force to Study Eminent Domain 12, Aug. 1, 2006 (on file with author). The new definition of blight advocated by the commission would allow the designation of an area as “blighted” so long as it was characterized by any two of seventeen different conditions. Ibid., attachment 2. Many of these are vaguely defined and could apply to almost any property. For example, one of the seventeen conditions is “[f]aulty lot layout in relation to size, adequacy, accessibility, or usefulness.” Ibid. Others include “[e]xcessive dwelling unit density” (without defining what constitutes “excessive”), and “[a]ge and obsolescence” (also undefined). Ibid. Like the old definition, the new one would still permit virtually any property to be designated as “blighted.”

• 98. Ohio Rev. Code Ann. §§ 1.08, 303.26 (LexisNexis 2008).

• 99. Tex. Gov’t Code Ann. § 2206.001(b) (Vernon 2008).

• 100. Ibid.

• 101. Ibid.

• 102. See discussions in chapter 4 and chapter 7.

• 103. Tex. Gov’t Code Ann. § 2206.001(b)(3) (Vernons 2008).

• 104. Tex. Loc. Gov’t Code Ann. § 373.005(b)(1)(A) (Vernons 2005).

• 105. Ibid.

• 106. Ibid., § 2206.001(e).

• 107. Ibid., § 2206.001(b)(3) (referencing other Texas laws allowing takings for community development or improving blighted areas). These statutes are listed as the only broad exceptions to the bill’s ban on takings “for economic development purposes.” Ibid., § 2206.001(b).

• 108. Ibid., § 373.005(b)(1)(A).

• 109. Sandefur is more optimistic about these two provisions, calling them “significant improvements.” Sandefur, “The ‘Backlash’ So Far,” at 734. He does not, however, consider the possibility that they can be circumvented by means of the “community development” exception.

• 110. Act of Apr. 17, 2007, ch. 68, 2007 Wash. Sess. Laws 268 (codified in scattered sections of Wash. Rev. Code ch. 8 (2007)).

• 111. Central Puget Sound Regional Transit Authority v. Miller, 128 P.3d 588 (Wash. 2006). The state’s Senate Committee on the Judiciary cited this decision as the reason for passing the new Washington law. S. Report, Substitute H.B. 1458, 60th Leg. (Wash. 2007), available at http://www.leg.wa.gov/pub/billinfo/2007-08 /Pdf/Bill%20Reports/Senate/1458-S.SBR.pdf.

• 112. See Hogue v. Port of Seattle, 341 P.2d 171, 187 (Wash. 1959), which forbids condemnation of private property so that an agency could “devote it to what it consider[ed] a higher and better economic use.”

• 113. Wash. Rev. Code § 35.80A.010 (2008) (defining blight narrowly for purposes of condemnation).

• 114. Act of May 11, 2006, ch. 2006-11, 2006 Fla. Laws 214 (codified in scattered sections of Fla. Stat.); Act of Apr. 3, 2007, 2007 N.M. Laws 3873, ch. 330 (codified in scattered sections of N.M. Stat.). The New Mexico bill does still permit the condemnation of property that is characterized by “obsolete or impractical planning and platting” and “(a) was platted prior to 1971; (b) has remained vacant and unimproved; and (c) threatens the health, safety and welfare of persons or property due to erosion, flooding and inadequate drainage.” Act of Apr. 3, 2007, 2007 N.M. Laws 3873, ch. 330, § 3-18-10(B)(3) (codified in scattered sections of N.M. Stat.).

• 115. See discussion above. However, Utah partially rescinded its ban on blight condemnations in a more recent bill. Act of Mar. 21, 2007, ch. 379, 2007 Utah Laws 2326 (codified in scattered sections of Utah Code Ann. §17C) (permitting blight condemnations if approved by a supermajority of property owners in the affected area).

• 116. A report prepared by the Institute for Justice, the libertarian public interest law firm that represented the property owners in Kelo, does not list a single private-to-private condemnation in Utah during the entire five-year period from 1998 to 2002. Berliner, Public Power, Private Gain, 196. The Institute for Justice report concluded (two years before the enactment of the 2005 reform law) that

“Utah has done fairly well in avoiding the use of eminent domain for private parties.” Ibid. New Mexico did not have any private-to-private condemnations during the 1998-2002 period. Ibid., 143.

• 117. Ibid., 52-58.

• 118. S.D. Codified Laws § 11-7-22.1(1)) (Supp. 2008).

• 119. Act of May 18, 2006, ch. 192, 2006 Kan. Sess. Laws 1345, §§ 1-2 (codified at Kan. Stat. Ann. §§ 26-501a, 26-501b (Supp. 2008)).

• 120. Kan. Stat. Ann. § 26-501a(b) (Supp. 2008).

• 121. Ibid., § 26-501b(e).

• 122. Ala. Code § 24-2-2(c) (2008) (limiting definition of blight to a relatively narrow range of situations, such as property that is “unfit for human habitation,” poses a public health risk, or has major tax delinquencies); Ibid., § 11-47-170(b) (forbidding condemnations that “transfer” nonblighted property to private parties); Del. Sen. Bill 7 (signed into law Apr. 9, 2009), available at http://legis.dela-ware.gov/LIS/LIS145.NSF/vwLegislation/SB+7?Opendocument; Ga. Code Ann. § 22-1-1(1), (10) (Supp. 2008) (forbidding economic development takings, and defining blight to include primarily risks to health, the environment, and safety, while excluding “esthetic” considerations); Ind. Code § 32-24-4.5-7 (Supp. 2008) (forbidding most private-to-private condemnations and defining blight as an area that “constitutes a public nuisance,” is unfit for habitation, does not meet the building code, is a fire hazard, or is “otherwise dangerous”); Mich. Comp. Laws § 213.23(1), (3), (8) (Supp. 2008) (banning condemnations for “general economic development” and limiting the definition of “blight” to property that is a “public nuisance,” an “attractive nuisance,” poses a threat to public safety, such as a fire hazard, or is abandoned). The law does have a potential loophole insofar as it permits the condemnation of property as “blighted” if it “is not maintained in accordance with applicable local housing or property maintenance codes or ordinances.” Ibid., § 213.23(8)(g); N.H. Rev. Stat. Ann. § 205:3-b (Supp. 2008) (defining public use as “exclusively” limited to government ownership, public utilities and common carriers, and blight-like condemnations needed to “remove structures beyond repair, public nuisances, structures unfit for human habitation or use, and abandoned property when such structures or property constitute a menace to health and safety”); Va. Code Ann. § 1-219.1 (2008) (permitting condemnation of private property only if “(i) the property is taken for the possession, ownership, occupation, and enjoyment of property by the public or a public corporation; (ii) the property is taken for construction, maintenance, or operation of public facilities by public corporations or by private entities provided that there is a written agreement with a public corporation providing for use of the facility by the public; (iii) the property is taken for the creation or functioning of any public service corporation, public service company, or railroad; (iv) the property is taken for the provision of any authorized utility service by a government utility corporation; (v) the property is taken for the elimination of blight provided that the property itself is a blighted property; or (vi) the property taken is in a redevelopment or conservation area and is abandoned or the acquisition is needed to clear title where one of the owners agrees to such acquisition or the acquisition is by agreement of all the owners”). The new law also narrows the definition of “blight” to include only “property that endangers the public health or safety in its condition at the time of the filing of the petition for condemnation and is (i) a public nuisance or (ii) an individual commercial, industrial, or residential structure or improvement that is beyond repair or unfit for human occupancy or use.” Ibid., § 1-219.1(B); Wyo. Stat. Ann. § 1-26-801(c) (2007) (“As used in and for purposes of this section only, ‘public purpose’ means the possession, occupation and enjoyment of the land by a public entity. ‘Public purpose’ shall not include the taking of private property by a public entity for the purpose of transferring the property to another private individual or private entity except in the case of condemnation for the purpose of protecting the public health and safety . . .”.). Technically, this law seems to forbid blight condemnations. However, the provision permitting condemnations for the purpose of protecting “public health and safety” is functionally equivalent to allowing condemnation under an extremely narrow definition of blight.

Delaware previously enacted a highly ineffective reform law in 2006. For a discussion of that earlier Delaware law, see Somin, “Limits of Backlash,” 2133.

• 123. See John Ross, “Alabama Brings Back Eminent Domain for Private Gain,” Reason, Mar. 31, 2013, available at http://reason.com/blog/2013/03/31/ala bama-brings-back-eminent-domain-for-p.

• 124. Ala. Senate Bill 96 (enacted Mar. 30, 2013). I discussed the issue in Ilya Somin, “Don’t Believe the Denials—Alabama Really Did Undermine It’s Post-Kelo Eminent Domain Reform Law,” Volokh Conspiracy, Apr. 7, 2013, available at http://www.volokh.com/2013/04/07/dont-believe-the-denials-alabama-really-did -undermine-its-post-kelo-eminent-domain-reform-law/.

• 125. PKO Ventures, LLC v. Norfolk Redevelopment and Housing Authority, 747 S.E.2d 826, 830 (Va. 2013) (holding that “The plain meaning of Code § 1219.1 makes it clear that redevelopment and housing authorities no longer have the authority to condemn individual properties within a redevelopment area determined to be a blighted area when the properties are not themselves blighted”).

• 126. 26 Pa. Cons. Stat. § 204(a) (Supp. 2008).

• 127. Ibid., § 203(4) (excluding areas designated as blighted within “a city of the first or second class,” which under law turns out to be Pittsburgh and Philadelphia).

• 128. Berliner, Public Power, Private Gain, 173, 179-81 (describing major condemnation projects in the two cities).

• 129. See Nick Sibilla, “Philadelphia Wants to Use Eminent Domain to Turn an Artist’s Studio into a Parking Lot and Supermarket,” Forbes, Dec. 3, 2013, available at http://www.forbes.com/sites/instituteforjustice/2013/12/03/philadelphia -wants-to-use-eminent-domain-to-turn-an-artists-studio-into-a-parking-lot-and -supermarket/. In December 2014, the city abandoned its efforts to condemn the studio after a prolonged legal and political battle in which the artist was represented by the Institute for Justice. See Ilya Somin, “Philadelphia Abandons Misguided Effort to Condemn Successful Artist’s Studio,” Volokh Conspiracy, Washington Post, Dec. 23, 2014, available at http://www.washingtonpost .com/news/volokh-conspiracy/wp/2014/12/23/philadelphia-abandons-effort-to -condemn-successful-artists-studio/.

• 130. Ibid.

• 131. Minn. Stat. § 117.025 (2008) (defining “public use” to mean exclusively direct public use, or mitigation of blight, or a public nuisance, and not “the public benefits of economic development,” and defining a “blighted area” as an urban area where more than half of the buildings are “structurally substandard” in the sense of having two or more building code violations).

• 132. Ibid., § 117.011 (2006) (setting out exceptions for tax increment financing districts), repealed by Minn. Stat. § 117.012 (West 2009 Electronic Update). A survey by the pro- Kelo League of Minnesota Cities found that twenty-seven of the thirty-four Minnesota cities that had used private-to-private takings for economic development purposes between 1999 and 2005 are located in the Twin Cities area, which was exempt from the state’s 2006 post- Kelo reform law. League of Minnesota Cities, Research on Cities’ Use of Eminent Domain (2005); Eric Willette, “LMC Study Finds Cities Use Eminent Domain Judiciously,” League of Minnesota Cities Bulletin, Nov. 30, 2005, 1.

• 133. Minn. Stat. § 117.011 (2008).

• 134. Minn. Stat. § 117.012 (West 2009 Electronic Update).

• 135. Wis. Stat. § 32-03(6)(a) (2007-08).

• 136. Ibid.

• 137. See Berliner, Public Power, Private Gain, 10-11, which notes that Alabama “has mostly refrained from abusing the power of eminent domain in recent years” and had only one documented private-to-private condemnation in 2002; Ibid., 59 (noting that Georgia is “one of a handful of states with no reported instances” of such condemnations between 1998 and 2002); Ibid., 189 (discussing South Dakota).

• 138. These are the seven states that did so despite ranking in the top twenty on the Institute for Justice’s survey of private-to-private condemnations between 1998 and 2002. See table 5.5.

• 139. For a complete list and other details, see National Conference of State Legislatures, Property Rights Issues on the 2006 Ballot, Nov. 12, 2006, available at http://www.ncsl.org/statevote/prop_rights_06.htm.

• 140. Ibid. Only two post- Kelo ballot initiatives were defeated—one in Idaho and one in California. Id. Both lost primarily because they were tied to controversial measures limiting “regulatory takings.” See, e.g., Timothy Sandefur, “The

California Crack-up,” Liberty, Feb. 2007, available at http://liberty unbound. com/archive/2007_02/sandefur-california.html. No stand-alone post- Kelo public use referendum initiative was defeated anywhere in the country.

• 141. Ga. Amendment 1 (enacted on Nov. 7, 2006, and amending Ga. Const. art. IX, § 2); N.H. Question 1 (enacted on Nov. 7, 2006, and amending N.H. Const. art. 12-a).

• 142. S.C. Amendment 5 (amending S.C. Const. art. I, § 13 ); Tex. Amendment 11 (enacted Nov. 3, 2009).

• 143. La. Amendment 5 (amending La. Const. art. I, § 4(B), art. VI, § 21(A) and adding art. VI, § 21(D)).

• 144. Ariz. Proposition 207 (enacted on Nov. 7, 2006, and codified at Ariz. Rev. Stat. Ann. §§ 12-1131 to -1138) (forbidding condemnations for “economic development” and limiting blight-like condemnations to cases where there is “a direct threat to public health or safety caused by the property in its current condition”); La. Amendment 5 (enacted on Sept. 30, 2006, and amending La. Const. art. I, § 4(B), art. VI, § 21(A) and adding art. VI, § 21(D)) (forbidding condemnations for “economic development” and tax revenue purposes, and confining blight condemnations to cases where there is a threat to public health or safety); Miss. Measure 31 (enacted Nov. 8, 2011) (forbidding economic development takings and limiting blight takings to areas that are seriously dilapidated or pose a threat to public safety). For a more detailed discussion of Measure 31, see Ilya Somin, “Referendum Initiatives Prevent Eminent Domain Abuse, “ Daily Caller, Nov. 9, 2011, available at http://dailycaller.com/2011/11/09/referendum -initiatives-prevent-eminent-domain-abuse/; Or. Measure 39 (enacted on Nov. 7, 2006, and codified at Or. Rev. Stat. § 35.015) (forbidding most private-to-private condemnations and limiting blight-like condemnations to cases where they are needed to eliminate dangers to public health or safety).

• 145. New Orleans Redevelopment Authority v. Johnson, 16 So. 3d 569, 578-84 (La. Ct. App. 2009).

• 146. Miss. Measure 31 (enacted Nov. 8, 2011).

• 147. Nev. Ballot Question 2 (enacted on Nov. 7, 2006, reenacted on Nov. 4, 2008, and amending Nev. Const. art. I, § 22) (forbidding the “direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party”); N.D. Measure 2 (amending N.D. Const. art. I, § 16) (mandating that “public use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health. Private property shall not be taken for the use of, or ownership by, any private individual or entity, unless that property is necessary for conducting a common carrier or utility business”). The Nevada law did not take effect until it was approved by the voters a second time in November 2008. Nev. Ballot Question 2 (enacted on Nov. 7, 2006, reenacted on Nov. 4, 2008).

• 148. See discussion of Florida’s reform earlier.

• 149. Fla. Amendment 8 (enacted on Nov. 7, 2006, and amending Fla. Const. art. X, § 6).

• 150. Va. Question 1 (enacted Nov. 7, 2012). For an account of the political struggle over Question 1 by a supporter of the initiative, see Jeremy P. Hopkins, “Obtaining Eminent Domain Reform: A View through the Lens of Virginia’s Constitutional Amendment,” American Law Institute Continuing Legal Education Program, Jan. 23-25, 2014.

• 151. Va. Question 1.

• 152. See the discussion of that law earlier in this chapter.

• 153. Va. Question 1.

• 154. Ga. Amendment 1 (enacted on Nov. 7, 2006, and amending Ga. Const. art. IX, § 2).

• 155. N.H. Question 1 (enacted on Nov. 7, 2006, and amending N.H. Const. art. 12-a).

• 156. Ibid.

• 157. S.C. Amendment 5 (enacted Nov. 7, 2006).

• 158. Karesh v. City Council of Charleston, 247 S.E.2d 342, 345 (S.C. 1978).

• 159. S.C. Amendment 5 (amending S.C. Const. art. I, § 13(B)).

• 160. Cal. Proposition 99 (enacted on June 3, 2008, and amending Cal. Const. art. I, § 19).

• 161. Ilya Somin, “Prop. 99’s False Promise of Reform,” Los Angeles Times, May 19, 2008, at A15. Proposition 99 includes a provision that would negate any conflicting eminent domain reform passed the same day, so long as Proposition 99 got more votes than its competitor. Cal. Proposition 99, § 9 (enacted June 3, 2008). Samantha Young, “Voters Reject Prop. 98, Endorse Prop. 99,” Long Beach Press- Telegram, June 4, 2008, (noting that the California League of Cities placed Proposition 99 on the ballot and spent eleven million dollars on promoting it and working to defeat Proposition 98).

• 162. Cal. Proposition 99 § 2, (enacted on June 3, 2008, and amending Cal. Const. art. I, § 19(b), (e)(3)) (exempting from protection owner-occupied residences where the owner has resided for less than one year).

• 163. Somin, “Prop. 99’s False Promise of Reform.”

• 164. Ibid.

• 165. Cal. Proposition 99 (enacted on June 3, 2008, and amending Cal. Const. art. I, § 19(e)(5)) (exempting takings of homes that are “incidental” to a variety of “public work[s] or improvement[s]”). The text of this section reads as follows:

Public work or improvement” means facilities or infrastructure for the delivery of public services such as education, police, fire protection, parks, recreation, emergency medical, public health, libraries, flood protection, streets or highways, public transit, railroad, airports and seaports; utility, common carrier or other similar projects such as energy-related, communication-related, water-related and wastewater-related facilities or infrastructure;

projects identified by a State or local government for recovery from natural disasters; and private uses incidental to, or necessary for, the public work or improvement.

• 166. Mich. Ballot Proposal 06-04 (enacted on Nov. 7, 2006, and amending Mich. Const. art. X, § 2).

• 167. 684 N.W.2d 765, 779-86 (Mich. 2004); the status of blight condemnations under Hathcock is analyzed in Ilya Somin, “Overcoming Poletown: County of Wayne v. Hathcock, Economic Development Takings, and the Future of Public Use,” 2004 Michigan State Law Review 1005 (2004).

• 168. See discussion earlier in this chapter.

• 169. The five are Arizona, Mississippi, Nevada, North Dakota, and Oregon.

• 170. The four are Georgia, New Hampshire, South Carolina, and Texas.

• 171. Ibid.

• 172. H.R. 4128, 109th Cong. (enacted Nov. 4, 2005).

• 173. Scott Bullock, “The Specter of Condemnation,” Wall Street Journal, June 24, 2006.

• 174. The PRPA was renamed as the “Strengthening the Ownership of Private Property Act of 2007,” available at http://thomas.loc.gov/home/gpoxmlc110/h926 _ih.xml.

• 175. See Christina Walsh, “Congress Can Halt Eminent Domain Abuse,” Washington Times, Feb. 15, 2012, available at http://www.washingtontimes.com /news/2012/feb/15/congress-can-halt-eminent-domain-abuse/;See H.R. 1433, Bill Summary and Status, available at http://thomas.loc.gov/cgi-bin/bdquery/z?d112 :HR01433:@@@X.

• 176. Ibid.

• 177. See H.R. 1944, Bill Summary and Status, available at http://thomas.loc .gov/cgi-bin/bdquery/D?d113:1:./temp/~bdUTss:@@@X|/home/LegislativeData .php?n=BSS;c=113|.

• 178. H.R. 4128, 109th Cong. § 2(a) (2005).

• 179. Ibid., § 2(b).

• 180. Ibid., § 8(1). The Act goes on to establish several exemptions, but these are relatively narrow. Ibid., § 8(1)(A-G) (exempting condemnations that transfer property to public ownership and several other traditional public uses).

• 181. Ibid., § 2(b).

• 182. Ibid., § 8(2).

• 183. Ibid.

• 184. Robert Meltz, Condemnation of Private Property for Economic Development: Legal Comments on the House- Passed Bill (H.R. 4128) and Bond Amendment (Congressional Research Service, 2005), 4. The report bases this conclusion on section 5(a)(2) of the PRPA, which requires the attorney general to compile a list of economic development grants but does not explicitly state that the list should be used as a guide for determining which funds to cut off in the event of PRPA violations. Ibid., 4 & n.7 (citing H.R. 4128, 109th Cong. § 5(a)(2) (2005)). Section 11 of the Act does require that the Act “be construed in favor of a broad protection of private property rights.” H.R. 4128, § 11. However, it is unclear whether this requirement would bind the attorney general in his determination of the range of programs covered by the Act’s funding cutoff.

• 185. For a detailed calculation, see Somin, “Limits of Backlash,” 2150-51.

• 186. Act of Nov. 30, 2005, Pub. L. No. 109-115, § 726, 119 Stat. 2396, 2494-95 (2005).

• 187. Ibid., 2495.

• 188. Ibid.

• 189. See discussion in chapter 4.

• 190. § 726, 119 Stat. at 2495, reprinted in Meltz, Condemnation of Private Property for Economic Development, at 12.

• 191. Ibid.

• 192. Exec. Order No. 13,406, 71 Fed. Reg. 36,973 (June 23, 2006).

• 193. Ibid.

• 194. Such claims were made by the New London authorities in Kelo itself, and accepted by virtually all the justices, including the dissenters. See Kelo v. City of New London, 545 U.S. 469, 484-85 (2005); ibid., 501 (O’Connor, J., dissenting).

Chapter Six

• 1. See table 6.1 on page 168.

• 2. See discussion in chapter 5.

• 3. See, e.g., Timothy Sandefur, “The ‘Backlash’ So Far: Will Americans Get Meaningful Eminent Domain Reform?,” 2006 Michigan State Law Review 709, 769-72.

• 4. See Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter (Stanford, CA: Stanford University Press, 2013), chap. 3.

• 5. Center for Economic & Civic Opinion at University of Mass./Lowell, The Saint Index Poll, question 9 (2007) (on file with author) [hereinafter Saint Index 2007]. The survey included one thousand respondents in a nationwide random sample.

• 6. See table 6.1.

• 7. For the exact wording of the two questions involved, see appendix B.

• 8. Saint Index 2007, question 9.

• 9. See discussion of the difficulty of classifying the effectiveness of these two states’ reforms in chapter 5; 28 of the 36 respondents in Idaho and Wisconsin were simply unaware of the existence of post- Kelo reform laws in their states. Changing the classification of those of the remaining eight who gave answers on effectiveness would have no statistically significant effect on the national results.

• 10. Saint Index 2007, question 10.

• 11. Only 17 percent of respondents expressed any opinion at all about the effectiveness of post- Kelo reform in their states. Saint Index 2007, question 10.

• 12. Question 10 on the Saint Index survey has four possible answers in addition to “don’t know.” See appendix B. However, as described in appendix B, in each case I coded two different answers as “correct” for purposes of table 6.1. Respondents living in states that had passed effective laws could get a “correct” answer by choosing either A or B, while those in states with ineffective reforms could pick either C or D.

• 13. For the classic survey result showing that many respondents will express opinions even about completely fictitious legislation invented by researchers rather than admit ignorance, see Stanley Payne’s famous finding that 70 percent of respondents expressed opinions regarding the nonexistent “Metallic Metals Act.” Stanley Payne, The Art of Asking Questions (Princeton, NJ: Princeton University Press,1951), 18.

• 14. Michael X. Delli Carpini and Scott Keeter, What Americans Know about Politics and Why It Matters (New Haven, CT: Yale University Press, 1996), 157.

• 15. See Martin P. Wattenberg, Is Voting for Young People? (New York: Pearson, 2007), 79-91.

• 16. Somin, Democracy and Political Ignorance, 22, tbl. 1.1.

• 17. Saint Index 2007.

• 18. Ibid.

• 19. Ibid., question 9. Standard tests showed that the difference between the 26 percent and 20 percent figures is not statistically significant; the relevant data is available from the author.

• 20. Ibid., questions 9, 10.

• 21. For a defense of the theory, see Vincent L. Hutchings, Public Opinion and Democratic Accountability (Princeton, NJ: Princeton University Press, 2003).

• 22. Saint Index 2007.

• 23. See discussion earlier in this chapter.

• 24. Saint Index 2006; Ilya Somin, “Is Post- Kelo Eminent Domain Reform Bad for the Poor?” 101 Northwestern University Law Review 1931, 1940 (2007).

• 25. Saint Index 2007.

• 26. See, e.g., Philip E. Converse, “Popular Representation and the Distribution of Information,” in Information and Democratic Processes, ed. John A. Ferejohn and James Kuklinski (Urbana: University of Illinois Press, 1990); Donald A. Wittman, The Myth of Democratic Failure (Chicago: University of Chicago Press, 1995). For criticism of the theory, see, e.g., Somin, Democracy and Political Ignorance, 110-17.

• 27. Saint Index 2007.

• 28. Ibid.

• 29. The 43 percent figure is based on data from Saint Index 2006. The 1.3 percent figure is calculated by taking 10 percent of the 13 percent who could correctly identify the status of post- Kelo reform in their state. Saint Index 2007.

• 30. For the argument that reliance on opinion leaders can alleviate the problem of political ignorance, see, e.g., Arthur Lupia and Mathew D. McCubbins, The Democratic Dilemma: Can Citizens Learn What They Need to Know? (Cambridge: Cambridge University Press, 1998), 206-08.

• 31. See Somin, Democracy and Political Ignorance, 97-100; Ilya Somin, “Resolving the Democratic Dilemma?,” 16 Yale Journal on Regulation 401, 408-11 (1999).

• 32. On the utility of such cues, see, e.g., Lupia and McCubbins, The Democratic Dilemma, 206.

• 33. Quoted in Michael Gardner, “Lawmakers Rethink Land-Seizure Laws,” San Diego Union- Tribune, Aug. 17, 2005, at A1.

• 34. Saint Index 2007, question 9.

• 35. David R. Mayhew, Congress: The Electoral Connection (New Haven, CT: Yale University Press, 1974), 61-73, 114-15, 121-25.

• 36. Dan Walters, “Eminent Domain Bills Are Stalled—Except One for Casino Tribe,” Sacramento Bee, Sept. 16, 2005, at A3.

• 37. Ibid.

• 38. Ibid.

• 39. See discussion of California’s reforms in chapter 5.

• 40. Interview with Steven Miller, Vice President for Policy, Nev. Policy Research Institute, (Mar. 14, 2007) (on file with author). Nevada eventually passed effective eminent domain reform by referendum. See discussion of Nevada’s reform law in chapter 5.

• 41. See discussion of Proposition 99 in chapter 5.

• 42. See ibid.

• 43. See table 5.3.

• 44. Ibid.

• 45. See discussion in chapter 5.

• 46. The Arizona initiative was undertaken by an activist group known as the Arizona HomeOwners’ Protection Effort. Arizona Secretary of State, Proposition 207, available at http://www.azsos.gov/election/2006/Info/PubPamphlet /english/Prop207.htm (last visited Mar. 5, 2009). The Nevada law was put on the ballot by the People’s Initiative to Stop the Taking of Our Land (PISTOL), along with other individuals. See Nevadans for the Protection of Property Rights, Inc. v. Heller, 141 P.3d 1235, 1238-39 (Nev. 2006) (listing the respondents to the initiative petition of “Nevada Property Owners’ Bill of Rights,” which sought to amend the Nevada Constitution with respect to eminent domain). In North

Dakota, the ballot initiative was sponsored by a group known as Citizens to Restrict Eminent Domain) (C-RED). National Institute on Money in State Politics, 2006 Ballot Measure Overview 37, 48 (2007), available at http://www.policyarchive.org/bitstream/handle/10207/5780/2007110512006BallotReport_Overview .pdf?sequence-1 (demonstrating that C-RED raised all of the contributions in support of Measure 2, which prohibits government takings of private property for economic development). In Oregon, the post- Kelo initiative was filed by the Oregonians in Action Political Action Committee. Measure Argument for State Voters’ Pamphlet for Measure 39 (on file with author). Oregonians in Action is a property rights activist group. Oregonians in Action, Background Information, available at http://www.oia.org/index.php/about-us (last visited Mar. 13, 2009).

• 47. See discussion of Proposition 99 earlier in this chapter.

• 48. Samantha Young, “Voters Reject Prop. 98, Endorse Prop. 99,” Long Beach Press- Telegram, June 4, 2008.

• 49. Ibid.

• 50. For defenses of the interest group explanation, see Martin E. Gold and Lynne B. Sagalyn, “The Use and Abuse of Blight in Eminent Domain, “ 38 Fordham Urban Law Journal 1119, 1159-63 (2011); ); Elaine B. Sharp and Donald Haider-Markel, “At the Invitation of the Court: Eminent Domain Reform in State Legislatures in the Wake of the Kelo Decision,” 38 Publius: The Journal of Federalism 556 (2008); and Sandefur, “The ‘Backlash’ So Far,” 768-72.

• 51. Jeremy P. Hopkins, “Obtaining Eminent Domain Reform: A View through the Lens of Virginia’s Constitutional Amendment,” American Law Institute Continuing Legal Education Program, Jan. 23-25, 2014.

• 52. Sandefur, “The ‘Backlash’ So Far,” 768-72.

• 53. Interview with Brooke Rollins, President & CEO, Tex. Pub. Policy Found. (Mar. 17, 2007) (on file with author).

• 54. See Edward J. Lopez et al., “Pass a Law, Any Law: State Legislative Responses to the Kelo Backlash,” 5 Review of Law and Economics 101 (2009); Andrew Morriss, “Symbol or Substance? An Empirical Assessment of State Responses to Kelo,” 17 Supreme Court Economic Review 237 (2009); see also Thomas J. Miceli, The Economic Theory of Eminent Domain: Private Property, Public Use (Cambridge: Cambridge University Press, 2011), 54-55.

• 55. The National Association of Homebuilders filed an amicus brief supporting the property owners in Kelo. See Patricia Salkin et al., “The Friends of the Court: The Role of Amicus Curiae in Kelo v. City of New London,” in Eminent Domain Use and Abuse: Kelo in Context, ed. Dwight H. Merriam and Mary Massaron Ross (Chicago: American Bar Association, 2006), 179.

• 56. See chapter 4.

• 57. See discussion in chapter 5.

• 58. Somin, “Is Post- Kelo Eminent Domain Reform Bad for the Poor?,” 1940, tbl. 2.

• 59. See Lopez et al., “Pass a Law, Any Law”; Morris, “Symbol or Substance.” On the greater propensity of Republicans and conservatives to oppose Kelo, see table 5.1.

• 60. For example, growth rates and urbanization are relatively crude measures of the extent to which developers and other interest groups have an incentive to try to use eminent domain to acquire property.

• 61. James Madison, “Federalist 10,” in Alexander Hamilton et al., The Federalist Papers, ed. Clinton Rossiter, (New York: Mentor, 1961), 75.

• 62. Ibid.

• 63. This issue is discussed in more detail in the conclusion.

• 64. Stephen Ansolabahere and Nathaniel Persily, Field Report: Constitutional Attitudes Survey 61 (Knowledge Networks, July 2010). For a more detailed breakdown of this data, see table 5.1.

• 65. See data in table 5.1.

• 66. Ansolabahere and Persily, Constitutional Attitudes Survey, 66.

• 67. The states are Delaware, Mississippi, New Jersey, Texas, and Virginia. See discussion of their reform laws in chapter 5. Three of the five (Delaware, Texas, and Virginia) were following up or revising earlier post- Kelo reform laws.

• 68. Interview with Richard Beyer, July 13, 2013.

• 69. Ibid.

• 70. On the Illinois law, see 65 Ill. Comp. Stat. § 5/11-74.3-1 et seq.; On the Alabama rollback, see the discussion in chapter 5. See also Dana Berliner, “Trends in Eminent Domain Legislation and Use,” American Law Institute-CLE (Jan. 24, 2013); Dana Berliner, “Eminent Domain Abuse Is Making a Comeback,” Wall Street Journal, May 16, 2014. The Illinois rollback is probably less significant than the others because that state never enacted a genuinely effective post- Kelo reform law to begin. See discussion of the Illinois law in chapter 5.

• 71. See Minn. Stat. § 473J.09 (2012). Subdivision 5 of this law allows the use of eminent domain for private as well as publicly owned stadiums. Ibid., subd. 5.

• 72. See discussion of Poletown in chapter 2.

Chapter Seven

• 1. Kelo, 545 U.S. at 478 (noting that government is not “allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”).

• 2. See works cited in chapter 5.

• 3. The most thorough discussion is my own 2011 article on the subject, which this chapter revises and updates. See Ilya Somin, “The Judicial Reaction to

Kelo,” 4 Albany Government Law Review 1 (2011) (Introduction to the Symposium on Eminent Domain in the United States). Daniel B. Kelly has published an excellent analysis of judicial interpretations of Kelo’s anti-pretextual taking rule. Kelly, however, does not consider the other issues raised in post- Kelo litigation. Daniel Kelly, “Pretextual Takings: Of Private Developers, Local Governments, and Impermissible Favoritism,” 17 Supreme Court Economic Review 173 (2009).

• 4. City of Norwood v. Horney, 853 N.E.2d 1115, 1136 (Ohio 2006) (holding that “economic development” alone does not justify condemnation); Board of County Commissioners of Muskogee County v. Lowery, 136 P.3d 639, 650-51 (Okla. 2006) (holding that “economic development” is not a “public purpose” under the Oklahoma state constitution and rejecting Kelo as a guide to interpretation of Oklahoma’s state constitution); Benson v. State, 710 N.W.2d 131, 146 (S.D. 2006) (concluding that the South Dakota constitution gives property owners broader protection than Kelo).

• 5. Mayor of Baltimore v. Valsamaki, 916 A.2d 324, 356 (Md. 2007); Sapero v. Mayor of Baltimore, 920 A.2d 1061, 1079-80 (Md. 2007); Rhode Island Economic Development Corp. v. The Parking Co., 892 A.2d 87, 102 (R.I. 2006).

• 6. Kaur v. New York State Urban Development Corp., 933 N.E.2d 721, 731-32 (N.Y. 2010); Goldstein v. New York State Urban Development Corp., 921 N.E.2d 164, 170-72 (N.Y. 2009).

• 7. City of Norwood v. Horney, 853 N.E.2d 1115, 1141 (Ohio 2006); Board of County Commissioners of Muskogee County v. Lowery, 136 P.3d 639, 653-54 (Okla. 2006).

• 8. Norwood, 853 N.E.2d at 1136. For a more detailed analysis of Norwood, see Ilya Somin, “Blight Sweet Blight,” Legal Times, Aug. 14, 2006, 42-44, available at http://www.law.gmu.edu/assets/files/faculty/Somin_LegalTimesBlight_8 -14-06.pdf.

• 9. Ibid., 1137 (O’Connor, J., dissenting) [quoting Kelo v. City of New London, 545 U.S. 469, 498 (2005)].

• 10. Ibid., 1141.

• 11. Lowery, 136 P.3d at 651.

• 12. 710 N.W.2d 131, 146 (S.D. 2006).

• 13. The court wrote that “[t]he reasons which incline us to this view are, first, that it accords with the primary and more commonly understood meaning of the words; second, it accords with the general practice in regard to taking private property for public use in vogue when the phrase was first brought into use in the earlier Constitutions; third, it is the only view which gives the words any force as a limitation or renders them capable of any definite and practical application” Ibid.

• 14. Kelo, 545 U.S. at 489.

• 15. See discussion of this issue in chapter 4.

• 16. City of Norwood v. Horney, 853 N.E.2d 1115, 1136-47 (Ohio 2006); Benson, 710 N.W.2d at 146.

• 17. Board of County Commissioners of Muskogee County v. Lowery, 136 P.3d 639, 652 (Okla. 2006) (quoting Oklahoma Const. art. 2, § 23).

• 18. Mayor of Baltimore v. Valsamaki, 916 A.2d 324, 356 (Md. 2007); Sapero v. Mayor of Baltimore, 920 A.2d 1061, 1080 (Md. 2007); Rhode Island Economic Development Corp. v. The Parking Co., 892 A.2d 87, 107-08 (R.I. 2006).

• 19. Valsamaki, 916 A.2d at 336, 356; Sapero, 920 A.2d at 1080; Parking Co., 892 A.2d at 104.

• 20. Parking Co., 892 A.2d at 99.

• 21. Valsamaki, 916 A.2d at 327 n.1 (quoting Black’s Law Dictionary 310 (8th ed. 2004)).

• 22. Parking Co., 892 A.2d at 107.

• 23. Ibid., 105-06.

• 24. Ibid., 106.

• 25. Ibid., 92-94.

• 26. Kelo v. City of New London, 545 U.S. 469, 488-89 (2005).

• 27. Parking Co., 892 A.2d at 101 (quoting In re Rhode Island Suburban Railway Co. 48 A. 590, 591 (R.I. 1901)).

• 28. Ibid.

• 29. 348 U.S. 26, 32 (1954).

• 30. See, e.g., Kelo, 545 U.S. at 480-81.

• 31. See discussion of pretextual takings later in this chapter.

• 32. Mayor of Baltimore v. Valsamaki, 916 A.2d 324, 356 (Md. 2007) (emphasis in original).

• 33. Ibid.

• 34. Sapero v. Mayor of Baltimore City, 920 A.2d 1061, 1072 (Md. 2007).

• 35. Valsamaki, 916 A.2d at 352.

• 36. Ibid., 328-30.

• 37. See discussion in chapter 4.

• 38. City of Norwood v. Horney, 853 N.E. 2d 1115, 1146-47 (Ohio 2006).

• 39. Ibid., 1146.

• 40. 924 A.2d 447, 460 (N. J. 2007).

• 41. Ibid.

• 42. For a discussion of this problem, see Ilya Somin and Jonathan Adler, “The Green Costs of Kelo: Economic Development Takings and Environmental Protection,” 84 Washington University Law Review 623, 641-52 (2006).

• 43. In re Condemnation by Redevelopment Authority, 962 A.2d 1257, 1263 (Pa. Commw. Ct. 2008). These cases were litigated under Pennsylvania’s broader pre- Kelo definition of blight, which has since been displaced by a narrower one enacted in its post- Kelo reform law. See the discussion of the new law in chapter 5.

• 44. In re Redevelopment Authority, 962 A.2d at 1263.

• 45. Ibid.

• 46. Kaur v. New York State Urban Development Corp., 933 N.E.2d 721 (N.Y. 2010); Goldstein v. New York State Urban Development Corp., 921 N.E.2d 164 (N.Y. 2009). For a more detailed discussions of Kaur and Goldstein, see Ilya Somin, “Let There Be Blight: Blight Condemnations in New York After Goldstein and Kaur,” 38 Fordham Urban Law Journal 1193 (2011) (symposium on eminent domain in New York). Some of the material in this section is adopted from that article, as is a portion of the discussion of these cases later in the chapter. For other academic commentary on the two cases, see Amy Lavine and Norman Oder, “Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project,” 42 Urban Lawyer 287 (2010); Keith Hirokawa and Patricia Salkin, “Can Urban University Expansion and Sustainable Development Co-Exist? A Case Study in Progress on Columbia University,” 37 Fordham Urban Law Journal 637, 684-89 (2010).

• 47. Kaur, 933 N.E.2d at 724, 731-32; Goldstein, 921 N.E.2d at 170-71.

• 48. Only about one-third of the over 5,300 housing units to be constructed would be affordable for middle- or low-income residents. Goldstein, 921 N.E.2d at 166. See also In re Develop Don’t Destroy (Brooklyn), 874 N.Y.S.2d 414, 424 (App. Div. 2009) (holding the construction of the basketball stadium was a permissible “public purpose”).

• 49. New York Const. art. XVIII, § 1; Goldstein, 921 N.E.2d at 170-71.

• 50. For accounts of the area and its characteristics, see Neil deMause and Joanna Cagan, Field of Schemes: How the Great Stadium Swindle Turns Public Money into Private Profi t (London: University of Nebraska Press, 2008) 27980, which notes that the area in question was “prime Brooklyn real estate” at the nexus of several “booming neighborhoods”; see also Damon Root, “When Public Power Is Used for Private Gain,” Reason, Oct. 8, 2009, available at http:// reason.com/archives/2009/ 10/08/when-public-power-is-used-for.

• 51. Goldstein, 921 N.E.2d at 189-90 (Smith, J., dissenting).

• 52. Ibid., 171.

• 53. Ibid., 172 [quoting Yonkers v. Community Development Agency v. Morris, 335 N.E.2d 327, 331 (N.Y. 1975)].

• 54. Ibid.

• 55. N.Y. Const. art. XVIII, § 1 (this is the provision of the constitution that authorizes blight condemnations). For a discussion of the original meaning of Article XVIII, see Somin, “Let There be Blight.”

• 56. Goldstein, 921 N.E.2d at 189 (Smith, J., dissenting).

• 57. Ibid.

• 58. Ibid., 166.

• 59. Root, “When Public Power Is Used for Private Gain” (quoting the firm’s report): Lavine and Oder, “Urban Redevelopment Policy,” at 298-99.

• 60. Ibid.; Goldstein, 921 N.E.2d at 189 (Smith, J., dissenting).

• 61. Root, “Urban Redevelopment Policy.”

• 62. Goldstein, 921 N.E.2d at 190 (Smith, J., dissenting).

• 63. See Brief for Respondent at 25-34, Goldstein v. New York State Urban Development Corp., 921 N.E.2d 164 (N.Y. 2009), 2009 WL 3810844.

• 64. Goldstein, 921 N.E.2d at 172.

• 65. Ibid.

• 66. Kaur v. New York State Urban Development Corp., 933 N.E.2d 721, 724 (N.Y. 2010).

• 67. Kaur v. New York State Urban Development Corp., 892 N.Y.S.2d 8, 28 (App. Div. 2009), rev’d, 933 N.E.2d 721 (N.Y. 2010).

• 68. Ibid., 20.

• 69. Ibid.

• 70. Ibid., 19-21.

• 71. Kaur, 933 N.E.2d at 726 n.6; Goldstein v. New York State Urban Development Corp., 921 N.E. 164, 166-67 (N.Y. 2009).

• 72. Kaur, 892 N.Y.S.2d at 22. Later, another firm was hired to conduct an independent blight study, but it was required to use “the same flawed methodology.” Ibid.; Damon Root, “Holding Justice Kennedy to His Word: Why the Supreme Court Must Put a Stop to Columbia University’s Eminent Domain Abuse,” Reason, Sept. 29, 2010, available at http://reason.com/archives/2010/09/29/holding-justice -kennedy-to-his (providing more details on the biases and flaws in the blight study); see also Damon Root, “College Cheats,” New York Post, Feb. 16, 2009 available at http://www.nypost.com/p/news/opinion/opedcolumnists/item_oZsTv770 SurlH I5f5BJlQO;jsessionid=DD25B89035A1B3D03970A76560585183.

• 73. Kaur, 892 N.Y.S.2d at 22.

• 74. Columbia already owned 76 percent of the land in the area at the time of the study and “the university refused to perform basic and necessary repairs— thereby both pushing tenants out of Columbia-owned buildings and manufacturing the ugly conditions that later advanced the school’s real-estate interests” See Root, “College Cheats.”

• 75. Kaur, 892 N.Y.S.2d at 30, 32 (Richter, J., concurring).

• 76. Kaur, 933 N.E.2d at 733. Judge Smith, the sole dissenter in Goldstein, concurred in Kaur only because of the force of the earlier precedent. Ibid., 737 (Smith, J., concurring).

• 77. Ibid., 732.

• 78. Ibid.

• 79. Ibid., 733.

• 80. Kaur, 892 N.Y.S.2d at 12-13, 21. The New York Court of Appeals incorrectly stated that the First Department had ignored the Urbitran study. Kaur, 933 N.E.2d at 733.

• 81. Uptown Holdings, LLC v. City of New York, 908 N.Y.S.2d 657, 660-61 (App. Div. 2010).

• 82. Presumably, New York courts would still invalidate a condemnation where the authorities openly admit that the purpose was to benefit a well-connected private interest.

• 83. See, e.g., Barry Friedman, The Will of the People: How Public Opinion Has Infl uenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus and Giroux, 2009).

• 84. Thomas W. Merrill and Henry E. Smith, Property (New York: Oxford University Press, 2010), 248.

• 85. See discussion of these cases in chapter 2.

• 86. Matthew J. Streb, “The Study of Judicial Elections,” in Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, ed., Matthew J. Streb (New York: New York University Press, 2007), 5-6.

• 87. See discussion in chapter 6.

• 88. Kelo v. City of New London, 545 U.S. 469, 477-78 (2005) (noting that government is not “allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit”).

• 89. Goldstein v. Pataki, 488 F. Supp. 2d 254, 288 (E.D.N.Y. 2007), aff’d, 516 F.3d 50 (2d Cir. 2008).

• 90. Kelo, 545 U.S. at 487.

• 91. See discussion of this point in chapter 4.

• 92. Kelo, 545 U.S. at 491 (Kennedy, J., concurring).

• 93. Ibid.

• 94. Kelly, “Pretextual Takings,” at 184-99. Kelly finds fault with the three tests, and proposes an alternative approach of his own. Ibid., 215-20.

• 95. Middletown Township v. Lands of Stone, 939 A.2d 331, 337 (Pa. 2007).

• 96. In re O’Reilly, 5 A.3d 246, 258 (Pa. 2010).

• 97. 198 P.3d 615, 642 (Haw. 2008).

• 98. County of Hawai’i v. C&J Coupe Family Ltd. Partnership, 242 P.3d 1136, 1148 (Haw. 2010).

• 99. Ibid., 1148-58.

• 100. New England Estates v. Town of Branford, 988 A.2d 229, 253 n.28 (Conn. 2010)

• 101. Kaur v. New York State Urban Development Corp., 892 N.Y.S. 2d 8, 18, 20 (App. Div. 2009), rev’d, 933 N.E.2d 721 (N.Y. 2010).

• 102. 49 WB, LLC v. Village of Haverstraw, 839 N.Y.S. 2d 127, 141 (App. Div. 2007).

• 103. See discussion of Kaur’s implications for pretext doctrine later in this chapter.

• 104. Lior Strahilevitz and Eduardo Penalver, “Judicial Takings or Due Process,” 97 Cornell Law Review 305, 322 (2012).

• 105. Armendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir. 1996) (en banc) (invalidating a taking because the official rationale of blight alleviation was a mere pretext for “[a] scheme . . . to deprive the plaintiffs of their property . . . so a shopping-center developer could buy [it] at a lower price”); Aaron v. Target Corp., 269 F. Supp. 2d 1162, 1174-75 (E.D. Mo. 2003), rev’d on other grounds, 357 F.3d 768 (8th Cir. 2004) (holding that a property owner was likely to prevail on a claim that a taking ostensibly to alleviate blight was actually intended to serve the interests of the Target Corporation); 99 Cents Only Store v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123, 1129 (C.D. Cal. 2001) (holding that “[n]o judicial deference is required . . . where the ostensible public use is demonstrably pretextual” and that the condemnation must be invalidated because “Lancaster’s condemnation efforts rest on nothing more than the desire to achieve the naked transfer of property from one private party to another”); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1229 (C.D. Cal. 2002) (“Courts must look beyond the government’s purported public use to determine whether that is the genuine reason or if it is merely pretext.”). For a discussion of 99 Cents case and its use by the Kelo majority, see chapter 4.

• 106. Franco v. National Capital Revitalization Corp., 930 A.2d 160, 173-74 (D.C. 2007).

• 107. This court should not be confused with the federal D.C. Circuit Court of Appeals.

• 108. Franco, 930 A. 2d at 173.

• 109. Kelo v. City of New London, 545 U.S. 469, 490 (2005) (Kennedy, J., concurring).

• 110. Franco v. District of Columbia, 39 A.3d 890, 894 (D.C. 2012).

• 111. 2006 WL 3507937, at *14 (N.D. Cal. Dec. 5, 2006), rev’d, 714 F.3d 1118 (9th Cir. 2013). (alterations in original) (quoting Kelo, 545 U.S. at 491 (Kennedy, J., concurring)).

• 112. The nonbinding nature of Kennedy’s opinion was recognized by the Franco court:

We apply the decision of the Kelo majority, written by Justice Stevens. Although Justice Kennedy’s concurrence discusses at some length a court’s role when presented with allegations of a pretextual public purpose, that discussion is not the holding of the court. Five justices, including Justice Kennedy, . . . agreed with Justice Stevens’ reasoning, and that opinion is the Court’s holding.

Franco, 930 A.2d at 169 n.8.

• 113. 714 F.3d 1118 (9th Cir. 2013). See discussion of this case later in this chapter.

• 114. Mayor of Baltimore v. Valsamaki, 916 A.2d 324, 352-53 (Md. 2007) (noting absence of a clear plan for the use of the condemned property, and contrasting with Kelo); Middletown Township v. Lands of Stone, 939 A.2d 331, 338 (Pa.

2007) (concluding that “evidence of a well-developed plan of proper scope is significant proof that an authorized purpose truly motivates a taking”); Rhode Island Economic Development Corp. v. The Parking Co., 892 A.2d 87, 104 (R.I. 2006) (emphasizing that “[t]he City of New London’s exhaustive preparatory efforts that preceded the takings in Kelo, stand in stark contrast to [the condemning authority’s] approach in the case before us”).

• 115. Nicole Garnett argues that planning is the main focus of Kelo’s pretext analysis, and under its reasoning, the presence of significant planning “almost always precludes a finding of pretext.” Nicole Stelle Garnett, “Planning as Public Use?,” 34 Ecology Law Quarterly 443, 454 (2007).

• 116. 550 F.3d 302, 311 (3d Cir. 2008).

• 117. Ibid., 305-06.

• 118. Ibid., 311.

• 119. Ibid.

• 120. Ibid., 310-11.

• 121. See discussion in chapter 1.

• 122. 516 F.3d 50 (2d Cir. 2008). See the discussion of the state decision earlier in this chapter.

• 123. Ibid., 55, 62.

• 124. Ibid., 62.

• 125. Ibid., 58.

• 126. Ibid., 55-56.

• 127. Ibid., 63.

• 128. Ibid. The court makes clear that its definition of “classic public use” is extremely broad by noting that private-to-private blight takings and “the creation of affordable housing” qualify. Ibid., 58.

• 129. 173 F. Appendix 931 (2d Cir. 2006).

• 130. Ibid., 932.

• 131. For a detailed discussion of Didden, see Ilya Somin, “Judge Sonia Sotomayor’s Record on Constitutional Property Rights,” Testimony before the U.S. Senate Committee on the Judiciary, July 16, 2009, at 5-8, available at http://www.law .gmu.edu/assets/files/news/2009/Somin_TestimonySotomayor.pdf.

See also Didden, 173 F. Appendix at 932.

• 132. Didden, 173 F. Appendix at 932. The opinion is unsigned and unpublished. But then-Judge Sotomayor was the senior judge on the panel, and the senior judge usually drafts such opinions.

• 133. Ibid., 933 (citations omitted).

• 134. Didden v. Village of Port Chester, 304 F. Supp. 2d 548, 553, 556 (S.D.N.Y. 2004). This district court ruling addressed a different issue arising from the same transaction.

• 135. See Somin, “Judge Sonia Sotomayor’s Record on Constitutional Property Rights,” 6-8.

• 136. 2d Cir. R. 32.1.1(b)(2), available at http://www.ca2.uscourts.gov/clerk /Rules/LR/Local_Rule_32_1_1.htm.

• 137. For details, see Somin, “Let There Be Blight.”

• 138. Kaur v. New York State Urban Development Corp., 892 N.Y.S.2d 8, 10-16 (App. Div., 2009), rev’d, 933 N.E.2d 721 (N.Y. 2010).

• 139. MHC Financing Ltd. Partnership v. City of San Rafael, 714 F.3d 1118 (9th Cir. 2013).

• 140. Ibid., 1129 (quoting Kelo v. City of New London, 545 U.S. 469, 490 (2005)) (Kennedy, J., concurring).

• 141. 2011 Guam 17 (2011). I use the title of this case under which a petition for certiorari was filed in the Supreme Court rather than the title used in the Guam courts: Government of Guam v. 162.04 Acres of Land.

• 142. For a detailed discussion of this case, see the amicus brief I wrote on behalf of numerous public interest organizations unsuccessfully urging the Supreme Court to take the case. Ilagan v. Ungacta, Amicus brief of National Federation of Independent Business Small Business Legal Center et al. (Jan. 7, 2013), available at http://www.cato.org/sites/cato.org/files/pubs/pdf/ilagan_filed_brief.pdf.

• 143. Kelo, 545 U.S. at 488-89.

• 144. See Kelly, “Pretextual Takings,” 188-89, and discussion in chapter 3.

• 145. See chapter 4, and Kelly, “Pretextual Takings,” 198.

• 146. Kelly, “Pretextual Takings,” 191-92.

• 147. See, e.g., Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (religious discrimination); Washington v. Davis, 426 U.S. 229 (1976) (racial discrimination).

• 148. Kelo, 545 U.S. at 493 (Kennedy, J., concurring).

• 149. For a detailed discussion of such an approach, see Kelly, “Pretextual Takings.”

• 150. See discussion of this problem in the analysis of Justice Kennedy’s opinion in chapter 4.

• 151. See the conclusion.

• 152. See chapter 2.

Chapter Eight

• 1. See, e.g., David Dana, “The Law and Expressive Meaning of Condemning the Poor after Kelo,” 101 Northwestern University Law Review 365 (2007); Debbie Becher, Private Property and Public Power: Eminent Domain in Philadelphia, (New York: Oxford University Press, 2014), 239; US Senate Committee on the Judiciary, The Kelo Decision: Investigating Takings of Homes and Other Private Property (Sept 20, 2005), (testimony of Professor Thomas W. Merrill), available at http://www.gpo.gov/fdsys/pkg/CHRG-109shrg24723/pdf/CHRG-109 shrg24723.pdf; Thomas Merrill and John Echeverria, Amicus Brief of American Planning Association, Connecticut Chapter of the American Planning Association, and National Congress for Economic Community Development, Kelo v. City of New London, 545 U.S. 469 (2005), 2005 WL 166929, 17.

• 2. See chapter 2.

• 3. See Ilya Somin, “Overcoming Poletown: County of Wayne v. Hathcock, Economic Development Takings, and the Future of Public Use,” 2004 Michigan State Law Review 1005, 1020-21, and discussion in chapter 3.

• 4. See, e.g., Yun-Chien Chang, Private Property and Takings Compensation: Theoretical Framework and Empirical Analysis (Northampton, UK: Edward Elgar, 2013), 167-72; Debbie Becher, Private Property and Public Power: Eminent Domain in Philadelphia, (New York: Oxford University Press, 2014), 228-31; Margaret Jane Radin, “The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings,” 88 Columbia Law Review 1667, 1689-96 (1988); Gideon Parchomovsky and Peter Siegelman, “Selling Mayberry: Communities and Individuals in Law and Economics,” 92 California Law Review 75, 13942 (2004). Aaron N. Green, “Takings, Just Compensation, and Efficient Use of Land, Urban, and Environmental Resources,” 33 The Urban Lawyer 517 (2001); Richard A. Epstein, “Property, Speech and the Politics of Distrust,” 59 University y of Chicago Law Review 41, 62 n.60 62-63 (1992); Gideon Kanner, “Condemnation Blight: Just How Just Is Just Compensation?,” 48 Notre Dame Law Review 765 (1973).

• 5. U.S. Supreme Court Oral Argument Transcript, Kelo v City of New London, No. 04-108 (argued Feb 22, 2005), 2005 WL 529436, at *15, 30, 32-34.

• 6. Ibid., *32-33.

• 7. Ibid., *15.

• 8. See, e.g., James Krier and Christopher Serkin, “Public Ruses,” 2004 Michigan State Law Review 859, 865-75 (2004); US Senate Committee on the Judiciary, The Kelo Decision: Investigating Takings of Homes and Other Private Property, at 6 (Sept. 20, 2005), available at http://judiciary.senate.gov/testimony .cfin?id=1612&wit_id=4661) (testimony of Professor Thomas W. Merrill). For citations to other advocates of increasing compensation, see Chang, Private Property and Takings Compensation, 168-69.

• 9. For some related criticism of increasing compensation as a solution to the problem of eminent domain abuse, see Julia D. Mahoney, “Kelo’s Legacy: Eminent Domain and the Future of Property Rights,” 2005 Supreme Court Review 103, 129-30 (2005).

• 10. For a summary of this issue, see Thomas W. Merrill, “The Economics of Public Use,” 72 Cornell Law Review 61, 82-84 (1986).

• 11. For a recent argument that fair market value compensation does in fact capture most types of subjective value, see Brian Angelo Lee, “Just Undercompensation: The Idiosyncratic Premium in Eminent Domain,” 113 Columbia Law

Review 593 (2013). However, even Lee recognizes that the fair market value formula undercompensates for the owner’s loss of “autonomy” (ibid.). Moreover, Lee’s argument has been subjected to strong criticism by Lee Ann Fennell, “Just Enough,” 113 Columbia Law Review Side Bar 109 (2013), which points out some important aspects of subjective value that Lee’s analysis underestimates or overlooks.

• 12. See Parchomovsky and Siegelman, “Selling Mayberry,” 139-42

• 13. See Abraham Bell and Gideon Parchomovsky, “Taking Compensation Private,” 59 Stanford Law Review 871 (2007). For an insightful analysis and critique of proposals to improve eminent domain compensation by incentivizing owners to reveal their true valuations, see Richard A. Epstein, “The Use and Limits of Self-Valuation Systems,” 81 University of Chicago Law Review 109 (2014).

• 14. Bell and Parchomovsky argue that most owners would be able to readily foresee these changes. Bell and Parchomovsky, “Taking Compensation Private,” 902-03. I am skeptical that this is true, especially in the case of owners who hold on to their property for many years.

• 15. See Yun-chien Chang, “Self-Assessment of Takings Compensation: An Empirical Study,” 28 Journal of Law, Economics, and Organization 265 (2010).

• 16. Ibid.

• 17. Bell and Parchomovsky, “Taking Compensation Private,” 891-92.

• 18. According to the Supreme Court, some of the landowners had avoided selling their land voluntarily because they would thereby incur “significant federal tax liabilities.” They lobbied the state legislature to condemn their properties instead, so as to “mak[e] the federal tax consequences less severe.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 233 (1984).

• 19. Kelo Oral Argument, at *32-33.

• 20. See Nicole Stelle Garnett, “The Neglected Political Economy of Eminent Domain,” 105 Michigan Law Review 101, 142-43 (2006).

• 21. But see Daryl Levinson, “Making Governments Pay: Markets, Politics, and the Allocation of Constitutional Costs,” 67 University of Chicago Law Review 345, 345 (2000) (pointing out that “[g]overnment actors respond to political incentives, not financial ones—to votes, not dollars. We cannot assume that government will internalize social costs just because it is forced to make a budgetary outlay”); Garnett, “Neglected Political Economy,’ ” 138-43 (arguing that political incentives will often lead to condemnations whose costs exceed their benefit, even if compensation levels are increased); Louis Kaplow, “An Economic Analysis of Legal Transitions,” 99 Harvard Law Review 509, 560-66 (1986).

• 22. See the discussion of Poletown in chapter 3, and Somin, “Overcoming Poletown.”

• 23. Wallace Kaufman, “How Fair is Market Value? An Appraiser’s Report of Temptations, Deficiencies, and Distortions in the Condemnation Process,” in

Bruce Benson, ed., Property Rights: Eminent Domain and Regulatory Takings Re- Examined, (New York: Palgrave Macmillan, 2010), 77, 79.

• 24. Somin, “Overcoming Poletown,” 1017-18. While the owners of the condemned businesses and other institutions received compensation payments, the cost of the destruction of these institutions to the community at large was not compensated in any way.

• 25. See discussion in chapter 1.

• 26. See chapter 3.

• 27. William A. Fischel, “The Political Economy of Public Use in Poletown: How Federal Grants Encourage Excessive Use of Eminent Domain,” 2004 Michigan State Law Review 929.

• 28. For example, about half the projected cost of the Poletown condemnation was paid for by state and federal funds. Somin, “Overcoming Poletown,” 1018.

• 29. For the argument that requiring sufficiently high compensation will deter inefficient takings and render eminent domain “self-limiting,” see for example William Fischel, Regulatory Takings (Cambridge, MA: Harvard University Press, 1995), 74.

• 30. See discussion in chapter 3.

• 31. See Chang, Private Property and Takings Compensation, chaps. 5-8. Chang finds that wealthier and more politically influential property owners are systematically overcompensated and others undercompensated in Taiwan (ibid., chaps. 5-6). In New York City, undercompensation is prevalent in cases that are settled (ibid., chap. 7), while overcompensation occurs far more often in cases that go to court, which are usually cases involving larger and wealthier landowners (ibid., chap. 8), perhaps because these types of owners can more readily afford a prolonged legal battle. For an early study reaching similar conclusions, see Patricia Munch, “An Economic Analysis of Eminent Domain,” 84 Journal of Political Economy 473 (1976).

• 32. For a discussion of several such factors, see Kaufman, “How Fair is Market Value?,” 79-86.

• 33. See, e.g., Thomas W. Merrill and David A. Dana, Property: Takings (New York: Foundation Press, 2002), 173-79; Richard A. Epstein, Supreme Neglect: How to Revive Constitutional Protection for Property Rights (New York: Oxford University Press, 2008), 91.

• 34. U.S. Senate Committee on the Judiciary, The Kelo Decision: Investigating Takings of Homes and Other Private Property, at 6 (testimony of Professor Thomas W. Merrill) (Sept. 20, 2005), available at http://www.gpo.gov/fdsys/pkg /CHRG-109shrg24723/pdf/CHRG-109shrg24723.pdf [hereinafter Merrill Testimony]; Thomas W. Merrill, “The Misplaced Flight to Substance,” 19 Probate & Property 16, 18 (2005); Gerald E. Frug and David J. Barron. “Making Planning Matter: A New Approach to Eminent Domain,” 71 Harvard Design Magazine

(2005); David J. Barron and Gerald E. Frug, “Make Eminent Domain Fair for All,” Boston Globe, Aug. 12, 2005.

• 35. Merrill Testimony, 6.

• 36. Merrill,“The Misplaced Flight to Substance,” 18. For an early version of the same argument, see Merrill, “The Economics of Public Use,” 80-81.

• 37. Merrill,“The Misplaced Flight to Substance,” 18.

• 38. Ibid.

• 39. See discussion in chapter 3.

• 40. Merrill, “The Misplaced Flight to Substance,” 18.

• 41. Merrill Testimony, 4.

• 42. See discussion in chapter 3.

• 43. See, e.g., Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books, 2012), 131-32; Daniel Farber, The Rights Retained by the People: The “Silent” Ninth Amendment and the Constitutional Rights Americans Don’t Know they Have (New York: Basic Books, 2007), 168-69; Radin, “The Liberal Conception of Property,” 1689-93; Margaret Jane Radin, “Property and Personhood,” 34 Stanford Law Review 957 (1982); D. Benjamin Barros, “Home as a Legal Concept,” 46 Santa Clara Law Review 255 (2006); Eduardo Penalver, “Eminent Domain Reform Takes an Interesting Turn in California,” Prawfsblawg, June 5, 2008, available at http://prawfsblawg. blogs.com/prawfsblawg/2008/06/eminent-domain.html. Penalver would also extend heightened protection to some types of commercial property and long-term residential leases. Ibid.

• 44. See works cited in the previous note. For an important challenge to the conventional wisdom on this point, see Stephanie Stern, “Residential Protectionism and the Legal Mythology of Home,” 107 Michigan Law Review 1093 (2009).

• 45. See ibid., 1133-39.

• 46. See chapter 1.

• 47. On the targeting of churches and synagogues for economic development takings, see, e.g., Brief for Becket Fund for Religious Liberty as Amicus Curiae in Support of Petitioners, Kelo v. City of New London, 545 U.S. 469 (2005), 2004 WL 2787141, at *8-11 & n.20.

• 48. See Garnett, “Neglected Political Economy,” 106.

• 49. See Stern, “Residential Protectionism.”

• 50. See discussion of this point in chapter 3.

• 51. For an example of such legislation, see Wisconsin’s post- Kelo reform, discussed in chapter 5.

• 52. See, e.g., cases cited in chapter 3.

• 53. Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455, 459 (Mich. 1981), overruled by County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004).

• 54. Ibid.

• 55. See Wilmington Parking Authority v. Land with Improvements, 521 A.2d 227, 231 (Del. 1987) (holding that “when the exercise of eminent domain results in a substantial benefit to specific and identifiable private parties, a court must inspect with heightened scrutiny a claim that the public interest is the predominant interest being advanced”).

• 56. Kelo v. City of New London, 843 A.2d 500, 585-90 (Conn. 2004), aff’d, 545 U.S. 469 (2005) (Zarella, J., dissenting). See the discussion of this dissent in chapter 1.

• 57. See, e.g., Tolksdorff v. Griffi th, 626 N.W.2d 163, 167-69 (Mich. 2001) (invalidating legislation that allows condemnation of limited amounts of property in order to build roads for the benefit of landlocked property owners); City of Lansing v. Edward Rose Realty, Inc., 502 N.W.2d 638, 643-46 (Mich. 1993) (invalidating taking of two apartment complexes for the benefit of a cable television company); City of Center Line v. Chmelko, 416 N.W.2d 401, 402, 404-407 (Mich. Ct. App. 1987) (invalidating condemnation of “two parcels of property” in order to facilitate expansion of a “local car dealership”).

• 58. City of Detroit v. Vavro, 442 N.W.2d 730 (Mich. Ct. App. 1989).

• 59. Ibid., 731.

• 60. Ibid., 731-32. A 1995 court of appeals decision reaffirmed this holding. See Detroit Edison Co. v. City of Detroit, 527 N.W.2d 9, 11 (Mich. Ct. App. 1995).

• 61. Somin, “Overcoming Poletown,” 1006.

• 62. Dana Berliner, Public Power, Private Gain: A Five Year, State- by- State Report Examining the Abuse of Eminent Domain 100 (2003), available at http:// www.ij.org/publications/castle/.

• 63. Ibid., 2.

• 64. Berliner, Public Power, Private Gain, at 2. Detroit condemnations included takings for casinos and sports teams, and one in which a developer with ties to the mayor was able to obtain a condemnation that resulted in the destruction of an entire African American neighborhood. Ibid., 102-06.

• 65. I briefly discussed this issue in Ilya Somin, “Eminent Domain and the Decline of Detroit,” Volokh Conspiracy, July 22, 2013, available at http://www .volokh.com/2013/07/22/eminent-domain-and-the-decline-of-detroit/.

• 66. For a discussion of those limitations, see chapter 5.

• 67. See, e.g., Nicole Stelle Garnett, “The Public Use Question as a Takings Problem,” 71 George Washington Law Review 934, 963-69 (2003); Amicus Brief of Professors David L. Callies, James T. Ely, Paula A. Franzese, Nicole Stelle Garnett, James E. Krier, Daniel R. Mandelker, John Copeland Nagle, John Nolon, J.B. Ruhl, Shelley Ross Saxer, A. Dan Tarlock, Laura Underkuffler, and Edward F. Ziegler, Kelo v. City of New London, No. 04-108, *15-27, 2004 WL 2803192.

• 68. Garnett, “The Public Use Question as a Takings Problem,” 966.

• 69. Brief for Petitioners, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108), 2004 WL 369341 at *4-5.

• 71. See Richard A. Epstein, The Classical Liberal Constitution: The Uncertain Quest for Limited Government (Cambridge, MA: Harvard University Press, 2014), 357-59; Richard A. Epstein, Supreme Neglect: How to Revive Constitutional Protection for Property Rights (New York: Oxford University Press, 2008), 83-86; Kelo v. City of New London, 545 U.S. 469 (2005), amicus brief of Richard Epstein and Cato Institute, 12-16, available at https://www.ij.org/im ages/pdf_folder/private_property/kelo/cato01.pdf; see also Richard A. Epstein, Takings: Private Property and Eminent Domain (Cambridge, MA: Harvard University Press, 1985), 169-74, which presents some related ideas. For a view similar to Epstein’s, see Samuel R. Staley, “The Proper Uses of Eminent Domain for Urban Redevelopment: Is Eminent Domain Necessary?” in Bruce Benson, ed., Property Rights: Eminent Domain and Regulatory Takings Re-Examined, (New York: Palgrave Macmillan, 2010), 27, 40-42, Staley argues that eminent domain should be used for private development projects only if it is a “last resort” needed to overcome genuine holdout problems whose existence has been established by a higher level of scrutiny.

• 72. Epstein, Classical Liberal Constitution, 358.

• 73. See Thomas J. Miceli, The Economic Theory of Eminent Domain: Private Property, Public Use (Cambridge: Cambridge University Press, 2011), chap. 2.

• 74. Epstein, Supreme Neglect, 85.

• 75. See discussion above.

• 76. For a more detailed critique of Epstein’s proposal along these lines, see Ilya Somin, “Libertarianism and Originalism,” in The Classical Liberal Constitution,” NYU Journal of Law and Liberty (forthcoming) (symposium on The Classical Liberal Constitution).

• 77. Epstein, Supreme Neglect, 85.

• 78. See discussion of subjective value earlier in this chapter.

• 79. See discussion in chapter 3.

• 80. Michael Heller and Roderick Hills, “Land Assembly Districts,” 121 Harvard Law Review 1465 (2008); for a critique of this proposal, which focuses on issues different from those I address here, see Daniel B. Kelly, “The Limitations of Majoritarian Land Assembly,” 122 Harvard Law Review Forum 7 (2009). For other proposals for increased community control over takings that, in my view, have shortcomings similar to those of the Heller-Hills LAD plan, see Becher, Private Property and Public Power, 231-35.

• 81. Heller and Hills, “Land Assembly Districts,” 1488-93.

• 82. Ibid.

• 83. Ibid., 1503-05.

• 84. Ibid., 1497-99.

• 85. Ibid., 1499-1502.

• 86. See the discussion of rational political ignorance in chapter 3, and in Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter (Stanford, CA: Stanford University Press, 2013), chap. 3.

• 87. See Kelly, “Limitations of Majoritarian Land Assembly.”

• 88. Becher, 234-35.

• 89. Ibid., 235.

• 90. See discussion in chapter 3.

• 91. See Robert C. Ellickson, “Federalism and Kelo: A Question for Richard Epstein,” 44 Tulsa Law Review 751, 762 (2009).

• 92. Ibid., 762-63. See also Vicki L. Been, “ ‘Exit’ as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine,” 91 Columbia Law Review 473, 509 (1991); Anup Malani, “Valuing Laws as Local Amenities,” 121 Harvard Law Review 1273 (2008) (providing evidence showing that the effects of various laws are capitalized into home prices, which local governments have incentives to keep high).

• 93. Ellickson, “Federalism and Kelo,” 762-63 & n.66.

• 94. Been, “ ‘Exit’ as a Constraint on Land Use Exactions,” 509.

• 95. For some of the better-known works along these lines, see Charles M. Tiebout, “A Pure Theory of Local Expenditures,” 64 Journal of Political Economy 416 (1956); Geoffrey Brennan and James M. Buchanan, The Power to Tax: Analytical Foundations of a Fiscal Constitution (New York: Cambridge University Press, 1980), 173-86; Albert Breton, Competitive Governments: An Economic Theory of Politics and Public Finance (Cambridge: Cambridge University Press, 1996); Thomas R. Dye, American Federalism: Competition among Governments (Lexington, MA: Lexington Books, 1990); James M. Buchanan, “Federalism as an Ideal Political Order and an Objective for Constitutional Reform,” 25 Publius 19 (1995); Wallace E. Oates, “An Essay on Fiscal Federalism,” 37 Journal of Economic Literature 1120, 1134-37 (1999); Wallace E. Oates and Robert Schwab, “Economic Competition among Jurisdictions: Efficiency Enhancing or Efficiency Distorting?,” 35 Journal of Public Economies 333 (1988); Barry Weingast, “The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development,” 11 Journal of Law, Economics, and Organization 1 (1995). I have contributed to this literature myself. See Somin, Democracy and Political Ignorance, chap. 5.

• 96. See, e.g., Richard A. Epstein, “Exit Rights under Federalism,” 55 Law & Contemporary Problems 147, 154-59 (1992); William Fischel, Regulatory Takings: Law, Economics, and Politics (Cambridge, MA: Harvard University Press, 1995), 282-88.

• 97. See, e.g., David Wildasin, “Labor-Market Integration, Investment in Risky Human Capital, and Fiscal Competition,” 90 American Economic Review 73 (2000).

• 98. See, e.g., Nathan Ashby, “Economic Freedom and Migration Flows between U.S. States,” 73 Southern Economic Journal 677 (2007).

• 99. Richard Schragger, “Mobile Capital, Local Economic Regulation, and the Democratic City,” 123 Harvard Law Review 482 (2009).

• 100. For a discussion of the relevance of moving costs to foot voting, see Somin, Democracy and Political Ignorance, 144-45.

• 101. Melvyn R. Durchslag, “Forgotten Federalism: The Takings Clause and Local Land Use Decisions,” 59 Maryland Law Review 464, 511 (2000).

• 102. For the classic analysis, see Gideon Kanner, “Condemnation Blight: Just How Just Is Just Compensation?,” 48 Notre Dame Law Review 765 (1973).

• 103. Ellickson, “Federalism and Kelo,” 763 n.66.

• 104. Ibid.

• 105. Ibid.

• 106. William Fischel, The Homevoter Hypothesis: How Home Values Infl uence Local Government, Taxation, School Finance, and Land- Use Policies (Cambridge, MA: University of Harvard Press, 2001).

• 107. See discussion in chapter 3; Dick M. Carpenter & John K. Ross, “Testing O’Connor and Thomas: Does the Use Of Eminent Domain Target Poor and Minority Communities?,” 46 Urban Studies 2447 (2009).

• 108. See discussion in chapter 3. For the classic formulation of voice and exit as alternative responses to bad policy, see Albert O. Hirschman, Exit, Voice, and Loyalty (Cambridge, MA: Harvard University Press, 1971).

• 109. See discussion in chapter 3.

• 110. City of Oakland v. Oakland Raiders, 646 P.2d 835 (Cal. 1982). A California appellate court later ruled that this eminent domain action was barred by the Commerce Clause of the federal Constitution because of the resulting burden on interstate commerce. City of Oakland v. Oakland Raiders, 174 Cal. App. 3d 414 (Cal. App. 1st Dist. 1985). However, the basis for the ruling—that the city’s plan would create an injunction preventing the team from moving forever and that it would affect an entire nationwide league rather than just the Raiders—would not extend to most other types of mobile property. Ibid., 421.

• 111. See discussion in chapter 2.

• 112. The California court that ultimately invalidated the attempted condemnation of the Oakland Raiders noted that “eminent domain cases have traditionally concerned real property, rarely implicating commerce clause considerations which deal primarily with products in the flow of interstate commerce. Whether the commerce clause precludes taking by eminent domain of intangible property, however, is a novel question posed, it seems, for the first time in this case.” City of Oakland, 174 Cal. App. 3d at 419.

• 113. Mayor and City Council of Baltimore v. Baltimore Football Club, Inc., 624 F. Supp. 278, 283 (D. Md. 1985).

• 114. Ibid., 282-84.

• 115. See discussion in chapter 2.

• 116. Dayton Gold and Silver Min. Co. v. Seawell, 11 Nev. 394, 404-05 (1876).

• 117. See, e.g., Carol Zeiner, “Eminent Domain Wolves in Sheep’s Clothing: Private Benefit Masquerading as Classic Public Use,” 28 Virginia Environmental Law Journal 1 (2010); Julia D. Mahoney, “Kelo’s Legacy: Eminent Domain and the Future of Property Rights,” 2005 Supreme Court Review 103, 121-22 (2005). For the Nevada Supreme Court’s preference for a necessity test, see ibid., 405.

• 118. See Zeiner, “Eminent Domain Wolves in Sheep’s Clothing.” I raised a similar possibility in Somin, “Overcoming Poletown,” 1031-32.

• 119. See discussion in chapter 3.

• 120. This possibility is raised in Somin, “Overcoming Poletown,” 1031-32, and Zeiner, “Wolves in Sheep’s Clothing.”

• 121. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886).

• 122. See, e.g., Tolksdorff v. Griffi th, 464 Mich. 1 (2001).

• 123. City of Springfi eld v. Dreison Investments, Inc., 2000 WL 782971, at *50 (Mass. Super. Ct. Feb. 25, 2000).

• 124. Texas Rice Land Partners, Ltd. v. Denbury- Green Pipeline, 363 S.W.3d 192 (Tex. 2011).

• 125. For some additional discussion of this issue, see the conclusion.

• 126. See Alexandra Klass, “Takings and Transmission,” 91 North Carolina Law Review 1079 (2013); Klass, “The Frontier of Eminent Domain,” 79 University of Colorado Law Review 651 (2008). For a condensed version of the latter article, see Klass, “The Frontier of Eminent Domain,” 31 Regulation-20 (2008). Further citations to “Frontier of Eminent Domain” reference the longer University of Colorado Law Review version.

• 127. For a more extensive discussion see Ilya Somin, “Using Eminent Domain to Take Property for Universities,” Volokh Conspiracy, Sept. 19, 2012, available at http://www.volokh.com/2012/09/19/using-eminent-domain-to-take-property -for-universities/. See also Kevin Kiley, “Change is Eminent,” Chronicle of Higher Education, Sept. 19, 2012, available at https://www.insidehighered.com /news/2012/09/19/ball-state-use-eminent-domain-spotlights-rare-potent-tool-state -universities.

• 128. See Steven Chen, “Keeping Public Use Relevant in Stadium Eminent Domain Takings; The Massachusetts Way,” 40 Boston College Environmental Affairs Law Review 453, 467-71 (2013). See also the discussion of the new Minnesota law to that effect in chapter 6.

• 129. City of Arlington v. Golddust Twins Realty Corp., 41 F.3d 960, 962 (5th Cir. 1994).

• 130. See David Schultz, American Politics in the Age of Ignorance: Why Lawmakers Choose Belief Over Research (New York: Palgrave Macmillan, 2012), chap. 3.

• 131. Alan Altshuler and David Luberoff, Mega- Projects: The Changing Politics of Urban Investment (Washington, DC: Brookings Institution, 2003), 33.

• 132. For some possible reforms, see Klass, “Takings and Transmission,” 113453 and Klass, “Frontier of Eminent Domain.,” 691-700.

• 133. Klass recognizes that interest group power may be an obstacle to effective reform in this area because “natural resource companies still wield significant political power in the region.” Klass, “Frontier of Eminent Domain,” 694.

• 134. For this type of argument, see Abraham Bell and Gideon Parchomovsky, “The Uselessness of Public Use,” 106 Columbia Law Review 1412 (2006).

• 135. Ibid.

• 136. See, e.g., Loretto v. Teleprompter CATV Corp. 458 U.S. 419, 426 (1982) (permanent physical occupation); Lucas v. Carolina Coastal Commission, 505 U.S. 1003, 1015 (1992) (complete loss of economic value).

• 137. Richard A. Posner, How Judges Think (Cambridge, MA: Harvard University Press, 2008), 319.

• 138. See Abraham Bell, “Private Takings,” 76 University of Chicago Law Review 517, 574-77 (2009).

• 139. See discussion in chapter 3.

• 140. See, e.g., David Dana, “The Law and Expressive Meaning of Condemning the Poor after Kelo,” 101 Northwestern University Law Review 365 (2007); Becher, Private Property and Public Power, 239; U.S. Senate Committee on the Judiciary, The Kelo Decision: Investigating Takings of Homes and Other Private Property, (testimony of Professor Thomas W. Merrill) (Sept 20, 2005) available at http://www.gpo.gov/fdsys/pkg/CHRG-109shrg24723/pdf/CHRG-109 shrg24723.pdf.

• 141. See discussion of these states’ reforms in chapter 5.

• 142. I expand on this issue in greater detail in Ilya Somin, “Is Post- Kelo Eminent Domain Reform Bad for the Poor?” 101 Northwestern University Law Review 1931, 1936-38 (2007).

• 143. Dana, “The Law and Expressive Meaning of Condemning the Poor after Kelo,” 365.

• 144. For a detailed discussion of the relevant survey data, see Somin, “Is Post-Kelo Eminent Domain Reform Bad for the Poor,” 1937-41.

Conclusion

• 1. For a detailed examination of the possible consequences of a victory for the property owners in Kelo, which concludes that it would probably have done more for the property rights cause than was accomplished by the political backlash against Kelo, see Ilya Somin, “What If Kelo v. City of New London Had Gone the Other Way?,” 45 Indiana Law Review 21 (2011) (Symposium on What If Counterfactuals in Constitutional History). For an argument that the property rights movement’s defeat in Kelo “eventually became a victory of a different sort,” see Ben DePoorter, “The Upside of Losing,” 113 Columbia Law Review 817, 831-32 (2013).

• 2. Jeff Benedict, Little Pink House: A True Story of Defi ance and Courage (New York: Grand Central Publishing, 2009), 331, 363.

• 3. Ibid., 370-75; E-mail from Susette Kelo, June 17, 2014; e-mail from Scott Bullock, July 17, 2014.

• 4. E-mail from Susette Kelo, June 17, 2014; e-mail from Scott Bullock, July 17, 2014.

• 5. Benedict, Little Pink House, 372; interview with Michael Cristofaro, July 12, 2013.

• 6. Discussion with Michael Cristofaro, May 30, 2014.

• 7. Interview with Michael Cristofaro, July 12, 2013.

• 8. Benedict, Little Pink House, 357.

• 9. Ibid.

• 10. Ibid., 374; see also George Lefcoe, “Jeff Benedict’s Little Pink House: The Back Story of the Kelo Case,” 42 Connecticut Law Review 925, 954-55 (2010).

• 11. Interview with Michael Cristofaro, July 12, 2013.

• 12. Benedict, Little Pink House, 147-48, 154-56, 187-90.

• 13. Ibid., 187-88; Interview with Frederick Paxton, June 11, 2014.

• 14. Benedict, Little Pink House, 217-19, 230-31.

• 15. See chapter 1.

• 16. Jon Lender, “Inglorious Anniversary: What’s Become of the Players 5 Years after Rowland’s Fall? Legacy of a Scandal, “Hartford Courant, July 1, 2009.

• 17. Alison Leigh Cowan, “Connecticut Official and State Contractor are Each Sentenced to 30 Months in Prison,” New York Times, Apr. 26, 2006.

• 18. Some of the Kelo plaintiffs raised this connection in interviews with me. Interview with Richard Beyer, July 13, 2013; Interview with Matthew Dery, July 31, 2013.

• 19. Jeff Benedict, “Apology Adds an Epilogue to Kelo Case,” Hartford Courant, Sept. 16, 2011.

• 20. Quoted in ibid.

• 21. Ibid.

• 22. Kelo v. City of New London, 843 A.2d 500, 596-602 (Conn. 2004) (Za-rella, J., dissenting), aff’d, 545 U.S. 469 (2005). See also discussion in chapter 1.

• 23. Interview with Richard Beyer, July 13, 2013.

• 24. Interview with Susette Kelo, Sept. 4, 2013.

• 25. Interview with Bill Von Winkle, Apr. 15, 2014.

• 26. Interview with Frederick Paxton, June 11, 2014.

• 27. Quoted in Kathleen Edgecomb, “NLDC Getting a New Identity,” The Day, Feb. 1, 2012.

• 28. Quoted in Paul Choinere, “Take the Steps to Pursue Fort Trumbull Dreams,” The Day, Dec. 8, 2013.

• 29. Ibid.

• 30. Kathleen Edgecomb, “’It Still Hurts’: Fight to Save Home Scars One Fort Trumbull Family,” The Day, June 23, 2013; see also Charlotte Allen, “ ‘Kelo’ Revisited,” Weekly Standard, Feb. 10, 2014, available at http://www.weeklystandard .com/articles/kelo-revisited_776021.html.

• 31. Edgecomb, “’It Still Hurts.’ ”

• 32. David Collins, “Feral Cats Ignore Eminent Domain,” The Day, Dec. 10, 2008; John Carney, “The Famous ‘Kelo House’ Property Is Now a Vacant Lot,” Business Insider, Nov. 10, 2009, available at http://www.businessinsider.com/the -famous-kelo-house-property-is-now-a-vacant-lot-2009-11

• 33. William Yardley, “After Eminent Domain Victory, Disputed Project Goes Nowhere,” New York Times, Nov. 21, 2005.

• 34. Kate Moran, “Developer Says Fort Trumbull Hotel Plan Not Viable Since 2002; Project Became Unrealistic without Pfizer Commitment,” The Day, June 12, 2004.

• 35. Lefcoe, “Jeff Benedict’s Little Pink House,” 939; Patrick McGeehan, “Pfizer to Leave City That Won Eminent Land-Use Case,” New York Times, Nov. 12, 2009.

• 36. McGeehan, “Pfizer to Leave City.”

• 37. Lefcoe, “Jeff Benedict’s Little Pink House,” 936.

• 38. Quoted in Judy Benson, “Pfizer Digs in for Long Haul: Ground Officially Broken for $220 Million New London Project,” The Day, Sept. 2, 1998.

• 39. Quoted in Abdon M. Pallasch, “Scalia Offers Ruling: Deep Dish v. Thin Crust,” Chicago Sun- Times, Oct. 18, 2011.

• 40. Quoted in ibid.

• 41. Quoted in Nathan Eagle, “Supreme Court Justice Scalia Talks Eminent Domain, Internment Camps,” Hawaii Civil Beat, Feb. 4, 2014, available at http:// hawaii.news.blogs.civilbeat.com/post/75652335571/supreme-court-justice-scalia -talks-eminent-domain.

• 42. See discussion of this point in chapters 2 and 3.

• 43. See, e.g., Thomas G. Hansford and James F. Spriggs, The Politics of Precedent on the US Supreme Court (Princeton, NJ: Princeton University Press, 2006), 83-90.

• 44. See chapter 4.

• 45. See discussion of O’Connor’s changing views in chapter 4.

• 46. For my analysis of the relevance of this historical trend to prospects for judicial protection of property rights generally, see Ilya Somin, “Taking Property Rights Seriously: The Supreme Court and the ‘Poor Relation’ of Constitutional Law,” George Mason Law & Economics Research Paper No. 08-53 (2008), available at http://ssrn.com/abstract=i247854, pp. 38-41.

• 47. See discussion of the NAACP and Nader’s views in chapter 5.

• 48. See chapter 7.

• 49. See, e.g., Wendell E. Pritchett, “The ‘Public Menace’ of Blight: Urban Renewal and the Private Uses of Eminent Domain,” 21 Yale Law & Policy Review 1, 5-23 (2003); Julia D. Mahoney, “Kelo’s Legacy: Eminent Domain and the Future of Property Rights,” 2005 Supreme Court Review 103, 132 (2005).; Paul Boudreaux, “Eminent Domain, Property Rights, and the Solution of Representation-Reinforcement,” 83 Denver University Law Review 1 (2005); and Maya Yxta Murray, “Peering,” unpublished paper (Nov. 2013).

• 50. See cases from those states cited in chapters 3 and 7.

• 51. See Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008).

• 52. Lawrence v. Texas, 539 U.S. 558, 587-88 (2003).

• 53. Montejo v. Louisiana, 556 U.S. 778, 793 (2009).

• 54. Payne v. Tennessee, 501 U.S. 808, 828-29 (1991).

• 55. See chapter 7.

• 56. See discussion in chapter 4.

• 57. See ibid.

• 58. Lawrence, 539 U.S. at 577.

• 59. See discussion in chapter 4.

• 60. See discussion in chapters 2 and 3.

• 61. See discussion in chapter 5.

• 62. Kelo v. City of New London, 545 U.S. 469. 499-501 (2005) (O’Connor, J., dissenting).

• 63. See the discussion of O’Connor’s approach in chapter 4.

• 64. See discussion in chapter 2.

• 65. For an extensive historical overview, see Barry Friedman, The Will of the People: How Public Opinion Has Infl uenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009).

• 66. See chapter 6.

• 67. On the NAACP’s combined political and legal strategy in the civil rights struggle, see, e.g., Mark Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1925-50, rev. ed. (Chapel Hill: University of North Carolina Press, 2005); On future Supreme Court Justice Ruth Bader Ginsburg’s efforts to combine litigation and political strategy in promoting women’s rights in the 1970s, see Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU’s Women’s Rights Project (Princeton, NJ: Xlibris, 2003). On gun rights, see Adam Winkler, Gunfi ght: The Battle over the Right to Bear Arms in America (New York: Norton, 2012). For a good recent discussion of the interaction between legal and political action in the gay marriage movement, see Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same- Sex Marriage (New York: Oxford University Press, 2012).

• 68. On this point, see Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, NJ: Princeton University Press, 2008), 237-45.

• 69. See discussion in chapter 2.

• 70. Ted Balaker and Courtney Balaker, “Culture Can Help Tame Eminent DomainAbuse,” USA Today, June222,2014,availableathttp://www.usatoday.com/story /opinion/2014/06/22/court-working-class-eminent-domain-column/10629613/

• 71. Buckner F. Melton, Jr. “Eminent Domain, ‘Public Use,’ and the Conundrum of Original Intent,” 36 Natural Resources Journal, 59, 62 (1996).

• 72. See chapter 4.

• 73. See discussion in chapter 8.

• 74. See, e.g., William Easterly, The Tyranny of Experts: Economists, Dictators, and the Forgotten Rights of the Poor (New York: Basic Books, 2013), 1-6.

• 75. Ibid.

• 76. Kent Ewing, “China Goes Back to the Land,” Asia Times, Mar. 9, 2006.

• 77. Maureen Fan, “As Beijing Olympics Near, Homes and Hope Crumble,” Washington Post, July 12, 2008.

• 78. Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Crown, 2006), 149.

• Appendix B

  • 1. 2007 Saint Index, questions 9, 10.