The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published an article which we wrote with our Damon Key colleagues Mark Murakami and Bethany Ace, Recent Developments in Eminent Domain: Public Use, 45 Urban Lawyer 809 (2013).
Here's the Introduction to the article:
IN KELO V. CITY OF NEW LONDON, the United States Supreme Court held that a municipality’s exercise of eminent domain power supported only by claims that doing so would help the local economy was not a per se violation of the Public Use Clause of the Fifth Amendment. The Court’s majority—and especially Justice Anthony Kennedy’s concurring opinion, which provided the fifth vote to affirm—left open the possibility that some takings would not qualify. In the intervening time, however, the Court has not provided any guidance whatsoever about what takings it would consider unconstitutional private-to-private transfers, or when a proffered justification will be considered a pretext to impermissible private benefit. Despite massive uncertainty and conflicting rulings from the lower courts, the Court has yet to take up a case, despite several viable petitions.In this article, we summarize the past year’s decisions, several of which attempt to discern what Kelo means. This article also discusses pipeline takings, the effect on a due process claim of a finding that a taking was pretextual, and other issues related to the power to condemn private property for public use.This volume of The Urban Lawyer contains this and other articles with updates on environmental law, regulatory takings (our earlier-posted article), land use and zoning, and municipal bond financing. For those of you who are SLG Section members, your copy is undoubtedly in the mail, and the pdf version of this and the other articles 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 this 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 to the journal alone is worth the membership cost.
Download the article here.
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