The Urban Lawyer, the law review published by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Challenging the Right to Take in Eminent Domain, 42 Urban Lawyer 693 (Summer 2010). It summarizes several of the recent court decisions on public use and public purpose, although since the law review is published in hard copy, it does not include several of the most recent developments (for those, you will have to wait for next year's article, or simply keep following this blog).
The Summer volume contains this and other articles with updates on environmental law, regulatory takings, land use and zoning, and municipal bond financing. For those of you who are SLG Section members, your copy of The Urban Lawyer is undoubtedly in the mail, and the pdf version will soon be available on the Section's web site. For those of you who are not Section members you get a freebie, at least of my article. If you are not a member of our Section, you really should consider joining us since one of the benefits included with membership is a subscription to The Urban Lawyer, the premiere law review dealing with state and municipal law, which includes our favorite topics land use, eminent domain, and takings. The subscription alone is worth the membership cost.
From the Introduction to the article:
True or false: "when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive." Still true, technically speaking: legislative determinations about whether a taking is in the public interest are entitled to a high degree of judicial deference. But after the United States Supreme Court’s decision in Kelo v. City of New London, that phrase no longer means that if the government wants to take property, the courts will simply rubber stamp it. Kelo reinvigorated judicial and public interest in the Public Use requirement of the Fifth Amendment and its counterparts in state constitutions and courts nationwide are more willing to examine the reasons for the exercise of eminent domain.This article summarizes recent developments in litigation challenging the ability of condemning authorities to take property. There were couple of blockbuster cases from New York state courts, and these cases are summarized in Part I, but overall, the developments in the law were incremental. Consequently, this article will focus not only on cases where public use was challenged, but will include in Part II cases where other limitations on the eminent domain power such as delegation and choice of forum were analyzed. Finally, Part III summarizes recent cases involving recovery of attorneys’ fees for unsuccessful condemnations, an issue that is sure to grow should courts continue to be more willing to invalidate takings.
Download the article here.
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