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The Judicial Reaction to Kelo


Ilya Somin


George Mason University School of Law

May 19, 2011

Albany Government Law Review, Vol. 4, No. 1, 2011 (Introduction to the Symposium on Eminent Domain in the United States)
George Mason Law & Economics Research Paper No. 11-21

Abstract:     
Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.

Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.

Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.

Albany Government Law Review, Vol. 4, No. 1, 2011 (Introduction to the Symposium on Eminent Domain in the United States)

Number of Pages in PDF File: 38

Keywords: Anthony Kennedy, Benson, Blight, Clarence Thomas, Connecticut, Fifth Amendment, Growth, Hawaii Housing Authority, John Paul Stevens, Maryland, Midkiff, New London, Ohio, Oklahoma, Post-Kelo, Review, Rhode Island, Sandra Day O’Connor, Second Circuit Court of Appeals, Sonia Sotomayor, South Dakota

JEL Classification: K11

Accepted Paper Series


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Date posted: May 31, 2011 ; Last revised: June 3, 2011

Suggested Citation

Somin, Ilya, The Judicial Reaction to Kelo (May 19, 2011). Albany Government Law Review, Vol. 4, No. 1, 2011 (Introduction to the Symposium on Eminent Domain in the United States); George Mason Law & Economics Research Paper No. 11-21. Available at SSRN: http://ssrn.com/abstract=1846751

Contact Information

Ilya Somin (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)
HOME PAGE: http://mason.gmu.edu/~isomin/
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