Yale Journal Celebrates 20 Years of Kelo v. City of New London

This year marks the twentieth anniversary of the landmark Supreme Court case Kelo v. City of New London, a decision that continues to provoke debate over property rights in the United States. The case, which centered around Susette Kelo’s now-iconic “little pink house,” set a precedent by allowing the transfer of condemned land to private entities under the guise of “economic development.” The ruling ignited discussions on the scope of the Fifth Amendment, specifically its provision that permits the taking of private property for “public use.”

The Yale Journal on Regulation recently organized a symposium to commemorate this significant anniversary. The event, co-edited by legal scholars Eric Claeys from George Mason University and David Schleicher from Yale, featured contributions from attorneys and experts on both sides of the Kelo case, as well as leading scholars in property and takings law. Among the notable contributors are Richard Epstein, Tom Merrill, Maureen Brady, Vicki Been, and Yun-Chien Chang.

Exploring the Implications of Kelo

The symposium’s articles have now been published online, providing a platform for comprehensive analysis of the Kelo ruling and its implications. Claeys and I have also penned articles reflecting on the case’s broader significance for constitutional theory. My contribution, titled “Public Use, Exclusionary Zoning, and Democracy,” delves into the parallels between Kelo and the contentious issue of exclusionary zoning.

In the first part of my article, I draw attention to the similar historical contexts of both public use and exclusionary zoning. There exists a robust originalist argument suggesting that policies like private-to-private condemnations and exclusionary zoning violate the property rights enshrined in the Fifth Amendment. Yet, since the Progressive and New Deal eras, courts have predominantly exhibited deference toward these policies, often to the detriment of the poor and marginalized, particularly racial minorities.

Judicial Review and Its Impact

In the second part, I argue that this conventional wisdom is flawed. Judicial deference in both public use cases and exclusionary zoning has disproportionately harmed disadvantaged communities. A more rigorous judicial review could enhance “representation-reinforcement” by amplifying the voices of those excluded from political processes and empowering them to “vote with their feet.” This empowerment could lead to more equitable outcomes in property law.

Additionally, my examination highlights synergies between enforcing public-use limitations on eminent domain and addressing exclusionary zoning practices. These insights contribute to a broader understanding of property rights and the judicial system’s role in safeguarding them.

In conjunction with the symposium, I authored a second article published in the Brennan Center State Court Report, which focuses on the extensive state legislative and judicial responses to the Kelo decision. This analysis aims to glean lessons from the reactions to the ruling, further enriching the discourse surrounding property rights and the implications of judicial decisions.

The symposium and its published articles serve as a vital resource for those interested in the evolving landscape of property rights in the United States. As discussions continue, the legacy of Kelo v. City of New London remains a cornerstone of the conversation around eminent domain and its impact on communities across the nation.