Takings

Last week marked the third anniversary of the Supreme Court’s ruling in Kelo v. New London. The first time I read Kelo, I thought what many Americans probably thought: that any government could seize property for any reason, so long as it compensated prior owners.

But after having taught Kelo to law students several times over the past few years, I now realize that Kelo is much more complex. Kelo was a 5-4 decision, and Justice Anthony Kennedy wrote a separate concurrence. Because Justice Kennedy was the “swing vote”, his decision predicts future Court decisionmaking more accurately than the Court’s primary opinion, because a taking which fails to satisfy Kennedy might not be able to get five votes in the Supreme Court.

Last year California was one of the states targeted by libertarians in the post-Kelo environment for an initiative that, if successful, would essentially outlaw takings. The country is still at near-fever pitch about eminent domain, but the really scary aspect of the legislation (modeled on Oregon's Prop 37) was that it would have virtually tied local governments' hands with regard to regulatory takings as well. In California Proposition 90 failed to pass after the New York developer who was financing the campaign stopped funding it. However, the Yes campaign had created some strange bedfellows, with poor African-Americans in particular advocating Yes votes as a way to end the destruction of their neighborhoods through badly managed redevelopment initiatives.