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Friday, April 20, 2007

Kelo, Norms and Winning by Losing

In a new and interesting working paper, Ilya Somin (George Mason) examines the political backlash against the Supreme Court decision in Kelo v. City of New London.

In Kelo, the Supreme Court held that private redevelopments that confer economic benefits on communities qualify as “public use”, thereby allowing local governments to expropriate private property under the Takings Clause of the Fifth Amendment. In the wake of Kelo, to date, over forty states have adopted legislative measures to curtail economic development takings. What first seemed a resounding loss in the Supreme Court, turned into a resounding victory for the opposition against takings of private land for commercial purposes.

However, from Somin’s extensive research it appears that many of the countermeasures enacted by states provide only very limited, often ineffective protection against economic development takings. In many cases, the provisions (for example, minor consequences on government funding) are unlikely to deter local governments from engaging in Kelo-like takings.

Somin attributes such ineffective post-Kelo legislation to voter ignorance. Accordingly, the government can get away with passing ineffective legislation because lip service can be sufficient to counter public backlash if the median voter does not pay close attention to the real effects of legislation.

Somin’s findings casts some doubt on the common perception that the Supreme Court decision in Kelo was a true victory for opponents of economic development takings. Personally, I remain convinced that the Kelo case was a triumph for opponents of economic development takings. Of course, a win in court would have been the most solid measure of success. Yet, because the long standing precedent was so unfavorable to the plaintiff’s cause, there was no real hope for a victory to begin with (don’t be fooled by the close margin, the disagreement originates in some language in Kelo that strengthens pro-government precedent). Perhaps the best hope for the Kelo plaintiffs was always to garner public attention to the underlying cause and to incite public disapproval over commercial development takings. Given the tremendous public backlash, the litigation was a success. And losing badly in the Supreme Court? Sometimes there is no better way to win the public’s sympathy. Is any of this new or does it merely fit within a long standing tradition of Supreme Court decisions that further polarize social issues?

Posted by Ben Depoorter on April 20, 2007 at 09:00 AM | Permalink


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If you read Kelo's brief and their oral arguments, there's a Life of David Gale vibe.

Posted by: Bart Motes | Apr 20, 2007 1:44:26 PM

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