Abstract

http://ssrn.com/abstract=2033473
 


 



The Role of Deference in Judicial Review of Public Use Determinations


Lynda J. Oswald


The Stephen M. Ross School of Business at the University of Michigan

April 2, 2012

Boston College Environmental Affairs Law Review, Vol. 39, No. 2, 2012

Abstract:     
In Kelo v. City of New London, the United States Supreme Court emphasized its longstanding practice of deferring to legislative determinations of public use. However, the Court also explicitly acknowledged that the federal Constitution sets a floor, not a ceiling, on individual rights and that the state courts are entitled to take a less deferential approach under their own state constitutions or statutes. This manuscript examines: (1) the ways in which the role of deference in judicial review of public use determinations can vary between federal and state courts and among state jurisdictions; and (2) the difficult issues raised by the interplay between legislatures and courts in public use determinations. Because the Supreme Court’s deferential approach to public use disputes provides little succor to property owners challenging takings, state court challenges to takings are likely to assume increasing importance. Property owners, therefore, need to understand the issues raised by deference in judicial review of public use challenges in both federal and state courts.

Number of Pages in PDF File: 39

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Date posted: April 3, 2012  

Suggested Citation

Oswald, Lynda J., The Role of Deference in Judicial Review of Public Use Determinations (April 2, 2012). Boston College Environmental Affairs Law Review, Vol. 39, No. 2, 2012. Available at SSRN: http://ssrn.com/abstract=2033473

Contact Information

Lynda J. Oswald (Contact Author)
The Stephen M. Ross School of Business at the University of Michigan ( email )
701 Tappan Street
School of Business Administration
Ann Arbor, MI 48109-1234
United States
734-763-9827 (Phone)
734-936-8715 (Fax)
HOME PAGE: http://www.bus.umich.edu
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