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

On the twentieth anniversary of the landmark case Kelo v. City of New London, the Yale Journal on Regulation hosted a symposium to discuss the ongoing implications of this pivotal Supreme Court decision. The case, which allowed the government to transfer condemned land to private developers for economic development, sparked widespread debate about property rights and the interpretation of the Fifth Amendment, which restricts the taking of private property for public use.

The Supreme Court’s ruling in 2005 established that virtually any potential benefit to the public could be classified as a valid public use. This decision was based on earlier precedents, notably Berman v. Parker (1954), leading to a narrow 5-4 majority conclusion. The symposium, organized by legal scholars Eric Claeys from George Mason University and David Schleicher from Yale, featured contributions from attorneys involved in the Kelo case as well as prominent scholars in property law.

Among the contributors are respected names such as Richard Epstein, Tom Merrill, Maureen Brady, Vicki Been, and Yun-Chien Chang. Claeys and Schleicher also co-edited the symposium articles, which are now available online. The symposium includes an introduction summarizing the significance of the Kelo decision and offers a concise overview of the associated articles.

My own contribution to the symposium, titled “Public Use, Exclusionary Zoning, and Democracy,” explores the broader implications of public use in constitutional theory. The article examines the connections between the Kelo case and the issue of exclusionary zoning, both of which raise significant questions about property rights under the Takings Clause.

Part I of the article highlights the historical parallels between private-to-private condemnations and exclusionary zoning. Both issues present strong originalist arguments that suggest these policies violate the property-rights provisions of the Fifth Amendment. Despite this, the Supreme Court has maintained a deferential stance towards such policies since the Progressive and New Deal Eras, which have generally favored government intervention over property rights.

In Part II, I argue that this conventional wisdom is misguided. The judicial deference on matters of public use and exclusionary zoning has disproportionately affected marginalized communities, particularly racial minorities. A more robust judicial review could enhance representation by empowering these groups and allowing them to “vote with their feet.”

Part III discusses the potential synergies between enforcing public-use limitations on eminent domain and addressing restrictions on exclusionary zoning. This intersection highlights the complexities and ongoing challenges in the realm of property rights and community representation.

In addition to my article for the symposium, I authored a separate piece published in the Brennan Center State Court Report. This article focuses on the significant state legislative and judicial responses to the Kelo decision and the valuable lessons that can be drawn from these developments.

As discussions about property rights and economic development continue, the Kelo case remains a crucial reference point in understanding the balance between public needs and private property rights. The symposium serves as a timely reminder of the complexities surrounding these issues and the ongoing relevance of Kelo in today’s legal landscape.