Kelo Through the Lens of Therapeutic Jurisprudence

Abstract

“Boiled down to its most essential element, therapeutic jurisprudence adds to legal analysis in a formal way, the dignity and value of the individual human being.” It therefore provides a fascinating jurisprudential lens through which to analyze the project that resulted in the infamous eminent domain case, Kelo v. City of New London. A therapeutic jurisprudence analysis of this project draws attention to additional considerations not fully appreciated in Kelo, in particular, the especially antitherapeutic impacts of this private-to-private taking undertaken solely for economic development. Recognition of these impacts helps to explain the level the public outrage that followed the Supreme Court’s decision. The therapeutic jurisprudence analysis also points to important norms that compete with that case’s expansive interpretation of government’s power to utilize eminent domain for private-to private-takings for economic development. It highlights the need for further work on this controversial topic by scholars, by members of the eminent domain and by members of the constitutional law bar. It suggests that therapeutic jurisprudence can contribute to that effort.

Keywords: therapeutic jurisprudence, comprehensive law, eminent domain, takings, economic development takings