George Mason U. lawprof Steven J. Eagle is familiar to regular readers of this blog for authoring the seminal treatise Regulatory Takings, now in its fourth edition. Talk takings and you will invariably be dealing with his scholarship.
Here's the latest: Professor Eagle has recently posted a new paper, "Urban Revitalization and Eminent Domain: Misinterpreting Jane Jacobs" on SSRN. The abstract:
This article reviews the implications for land use policy of Jane Jacobs’ The Death and Life of Great American Cities. Fifty years after its publication in 1961, Death and Life remains a clarion call for resistance to monolithic development and to the reigning paradigm of urban planning in the mid-20th century. The article asserts, however, that government officials and planners have learned the wrong lesson from Jacobs. Their emphasis on the top-down imposition of what purports to be varied development is evident in the growth of condemnation for retransfer for private economic redevelopment. Such policies are directly contrary to Jacobs’ insistence on bottom-up organic development.
The article further describes the muddled state of the U.S. Constitution’s Public Use Clause, evident in Kelo v. City of New London and in state cases such as Goldstein v. New York State Urban Development Corporation. It asserts that judicial unwillingness to provide meaningful scrutiny to condemnation for private redevelopment is based, in part, on acceptance of the revisionist, and incorrect, reading of Jacobs’ work.
(links added). The portion of the article that resonated most with us begins on page 40:
Kelo v. City of New London contains considerable rhetoric about why the Public Use Clause was not violated, but little that pins down how that clause would be violated. Most clearly, "the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation." The operative word is "sole." One could hardly imagine a transfer expressed in these terms. Indeed, the fitting out of any new grand private residence results in the employment of laborers and domestics, and the expansion of any legitimate business advances the welfare of its customers.
at 40 (footnotes omitted).
