The 'Backlash' so Far: Will Americans Get Meaningful Eminent Domain Reform?

Abstract

The Supreme Court's decision in the eminent domain case of Kelo v. New London was greeted with anger and frustration. The public outcry reaction came to be called the "Kelo backlash," and news reports and editorials declared throughout the fall of 2005 that this backlash was leading to statutory reforms in many state legislatures. Following Justice Stevens' suggestion in the Kelo opinion that states could provide greater protection for property owners than the federal courts provided, and recognizing that some state courts had imposed stricter limits on eminent domain through the "public use" requirements in state constitutions, activists and legislators in dozens of states began working on changing state laws regarding property seizure.

So far, the backlash has produced mixed results. In the year since the Kelo decision was announced, 24 states have passed new legislation regarding eminent domain. Unfortunately, 16 of these new laws provide little protection for property owners. Proposals in other states, including two brought forward in the California Legislature, even appear to have been consciously designed to effect no meaningful change. On the other hand, new laws in South Dakota, Indiana, Georgia, Pennsylvania, and Minnesota, as well as bills in some other states, give reason to hope that residents of other states will receive meaningful protection from the abuse of eminent domain. But would-be reformers must resist the pressure to include loopholes and exceptions that have so severely weakened many new reform laws.

In this article, I survey the 24 new laws, as well as proposals that were shot down by the Legislature of California, and the governors of Arizona, New Mexico, and Iowa. I will explore what makes the new laws in South Dakota and other states so effective, and what renders other state laws hollow promises. After a brief background on eminent domain after Kelo, and the public reactions to that decision, I explore each bill in sequence. I conclude with some observations as to the two biggest obstacles faced by reformers: the political influence of powerful redevelopment proponents, and the lack of serious philosophical support for reform.

Keywords: eminent domain, kelo, public use, redevelopment

JEL Classification: K11, K19