Kelo v. City of New London was an immensely important case about the clash between the powers of government and the right to own private property. Yet the actual decision as much reflects the specific goals of the litigants and the tactical decisions of their appellate lawyers to attain those goals as it does the […]
Historians and legal scholars alike have previously noted that the meaning of “public use” began to change in the nineteenth century, continuing into the twentieth. In the hands of some state courts, “public use” expanded from an approach dependent on “use by the public” to one that at least occasionally tolerated “use for the public […]
The home enjoys special constitutional protections across multiple amendments in the Bill of Rights, yet the Takings Clause remains an anomaly, offering no unique safeguards for residential property. Justice Clarence Thomas’s dissent in Kelo v. City of New London underscored this inconsistency, questioning why the Court grants heightened protection to the home in contexts like […]
In Kelo v. City of New London (2005), the U.S. Supreme Court signaled that government-sponsored assemblies hardly ever create problems under the Public Use Clause in the Fifth Amendment to the U.S. Constitution. By a 5-4 majority, the Court held that a government takes property for public use when it condemns private property and transfers […]
For twenty years, the Supreme Court’s broad account of the public-use requirement of the Fifth Amendment under Kelo v. City of New London has been the target of constant criticism for its excessive deference to government acquisitions of land. The Court’s recent Loper Bright decision marks the rejection of a similar deferential approach in administrative […]
The power of eminent domain is an inherent attribute of sovereignty, not a power granted by the federal or any state constitution. There are significant constitutional constraints on exercises of the eminent-domain powers, however, most notably the requirement contained in the Takings Clause that private property shall not “be taken for public use, without just […]
Debate about the significance of the “public use” language in the Takings Clause generally assumes that the language is a limit on the power of eminent domain. This Essay argues that the language is better understood as an operative predicate that tells us what kinds of takings require the payment of compensation. The Supreme Court […]
The Supreme Court’s 2024 City of Grants Pass v. Johnson decision allows jurisdictions to address homelessness by driving unhoused people away, and some have done so in the months since the decision. For those local governments that rise to the challenge of the homelessness crisis, various statutes and regulations, such as the Fair Housing Act, […]
This Article examines the political and economic implications of the U.S. Supreme Court’s landmark decision in Kelo v. City of New London (2005) through an empirical study of eminent-domain practices in New York City. Using a unique dataset of all expropriations in New York City over twenty-nine years, we challenge two core assumptions underlying the […]
The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the “public use” issue at stake in Kelo and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. This Article takes […]
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here. In this era of the rapid change in administrative law—both at the Supreme Court and from the White House—I am grateful that Senator Schmitt has stepped up as a thought leader in the Senate […]
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here. We agree with Sen. Eric Schmitt that “Congress must reclaim the habit of legislating.” While much of the senator’s report and commentary addresses the challenges posed by the administrative state, we hope he and […]
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here. The Congressional Review Act is a congressional eraser that wipes agency rules clean—and prevents their future reenactment. President Trump is wielding the Act more effectively than ever before, with a Republican trifecta in control […]
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here. The Post-Chevron Working Group Report reads less as a plan to improve Americans’ lives through streamlining agencies and achieving democratic accountability than as a broadside against the functionality of American governance that has risen […]
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here. It has been nearly a decade since Justice Elena Kagan summarized the judicial interpretation zeitgeist by noting that “[w]e’re all textualists now.”[1] And while it may be that textualism is a predominate form of […]