Planning as Public Use?
Nicole Stelle Garnett
Notre Dame Law School
Ecology Law Quarterly, Vol. 34, 2007
Notre Dame Legal Studies Paper No. 07-01
This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible private takings from presumptively valid public ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power of eminent domain: First, can public, participatory planning help legitimize so-called economic-development takings? Second, was the Court correct to assume that planning will limit pretextual takings, i.e., the taking of private property in the name of economic development but for the true purpose of benefiting a private individual? And third, will careful planning by the government lead to more successful projects?
Number of Pages in PDF File: 29
Keywords: eminent domain, Kelo, takings, economic development, planning
JEL Classification: H70, K11
Date posted: January 30, 2007 ; Last revised: December 22, 2007