Ferreting Out Favoritism: Bringing Pretext Claims after Kelo

Abstract

In 2005, the U.S. Supreme Court ruled in Kelo v. City of New London that governments may take one’s private property and give it to another for the purpose of promoting economic development. The Court held that, in evaluating Fifth Amendment challenges to such takings, courts should defer to legislative judgments as to what constitutes a valid public purpose. Critics argue that this decision opened the floodgates to pretextual abuse. Specifically, they contend that local governments who exercise the eminent domain power are often motivated by a desire to favor another private party. After Kelo, courts have struggled to reconcile the decision’s general call for deference to legislative judgments with the majority and concurrence’s implicit call for heightened scrutiny of takings claimed to be motivated by favoritism.

This Note argues that courts should adopt a ‘process scrutiny’ approach to evaluating pretext claims whereby courts infer favoritism from a variety of circumstantial evidence arising from the condemnation process. This Note also draws on a conflict among courts over whether to apply the Court’s plausibility pleading standard derived from Bell Atlantic Corp. v. Twombly in arguing that permissive review of pretext claims on the pleadings lends substance to them. This Note builds on pretext case law in an effort to illustrate the wide variety of factors courts have used to surmise improper motivation. Ultimately, this Note argues that a robust ‘process scrutiny’ approach gives teeth to challenges that assert the political process is being manipulated impermissibly for someone’s private gain.

Keywords: Kelo, eminent domain, pretext, Twombly, pleading