▪ New Articles on Eminent Domain (Kelo & Midkiff)

• "Public Use And Zoning Intertwined" by Professor Richard Epstein, comparing the eminent domain power and the zoning power, and how, especially after Kelo, these two powers have been melded:
  

Now, the tight connection between public use and zoning issues becomes clear. Any local government that uses heavy zoning restrictions courts public use fiascos down the road. A constitutional regime that curbed the excesses of local zoning would give greater security of property rights to insiders and outsiders alike, and thus obviate the need for government land grabs like Kelo. Regrettably, our Supreme Court has washed its hands of oversight for both zoning and public use decisions. But state courts, and state legislators should work to rein in these dangerous tendencies, which requires a stronger and more systematic defense of private property. To get this right, we must disabuse ourselves of the supposed conflict between private property and some ill-defined notion of the public interest. These two are not in opposition. In the long run, the systematic protection of private property advances any viable conception of the public interest.

• "Book 'em, Danno!" by Professor Gideon Kanner, recommending the recent law review article by Debra Pogrund Stark, How Do You Solve a Problem Like in Kelo?, 40 John Marshall L. Rev. 609 (2007), which Professor Kanner cites as explaining the facts behind the infamous U.S. Supreme Court Midkiff decision on Hawaii's Land Reform Act:

Prof. Stark tells the factual story of what the situation was like on the ground when the U.S. Supreme Court decided the notorious Hawaiian land redistribution case, Hawaii Housing Authority v. Midkiff (1984) 467 U.S. 229.

It turns out that the big, bad lessor trust whose land was taken in that case for redistribution to its downtrodden residential tenants was actually a charitable entity that used the land rents for the support of the Kamehameha schools that provide a quality education to underprivileged Hawaiian children. The tenants who were the beneficiaries of low land rents were not satisfied with paying below-market rents and wanted their lessor’s title too. Thus, the beneficiaries of this land grab were upper middle-class and wealthy haoles who got a good deal by ripping off a charitable trust, at the expense of native Hawaiian children.

Comments

[Charley Foster]

That is an amazing expansion on the facts of Midkiff. Of course nobody ever hears that in property class. It would make an awesome comment in a case book. "Would it change your opinion of the case if you knew..."

[John Merritt Burns]

Thanks:Mr. Thomas,The Hawaii Housing Authority v. Midkiff(What a crock!)Your link to Richard Epstein "Public Use and Zoning Intertwined"Nice! If the 5th amendment had said... nor shall private property be taken for any use,as these governments of the people do determine it improper, without just compensation.As governments now clam,then where is "We The People" come in.

[rht]

The court's equating of the police power and the eminent domain power in Midkiff and Kelo is the source of a lot of the problems, it appears. Justice Kennedy's concurring opinion in Kelo, however, seems to suggest that the scope of review under the police power may be in for a second look. I think his concurring opinion is the "center of gravity" for analysis of both the eminent domain and the zoning issues in the future.