The Role of Deference in Judicial Review of Public Use Determinations

39 Pages Posted: 3 Apr 2012  

Lynda J. Oswald

University of Michigan, Stephen M. Ross School of Business

Date Written: April 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.

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: https://ssrn.com/abstract=2033473

Lynda J. Oswald (Contact Author)

University of Michigan, Stephen M. Ross School of Business ( 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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