Wednesday, June 10, 2015

The Grasping Hand: An Interview with Ilya Somin, Part One


I recently spoke with Ilya Somin (George Mason Law School) about his new book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015).  The book describes the litigation in Kelo v. City of New London, in which the United States Supreme Court held that New London could use eminent domain to transfer land to private developers for the purpose of stimulating economic development. Doing so was a permissible public use under the Takings Clause, the Court argued, because it served a public purpose.

This is part one of a two-part interview. Part Two will appear tomorrow.

JB: What led you to write a book about Kelo v. City of New London?

Ilya Somin: When I was in law school, I spent a summer working for the Institute for Justice, the public interest law firm that later represented the property owners in Kelo (after I went back to school). At that time, I realized that public use restrictions on takings are an important issue that had been largely neglected by scholars, because most assumed that the issue had been definitively resolved in favor of the theory that the government can condemn property for virtually any reason it wants.

The controversy generated by the Kelo case thrust the issue back into the limelight, and undermined the seeming consensus on the subject.  To use your own excellent terminology, the argument for a narrower view of public use went from “off the wall” to “on the wall.”  Yet most legal scholars still held to the previous conventional wisdom on the subject. I think that conventional wisdom is seriously misguided, and the book is my effort to explain why. I also wanted to explore the massive political reaction generated by Kelo, which is worthy of attention in its own right.

JB: You mention in the book that you represented Jane Jacobs-- famous for her work on cities--in an amicus brief before the Supreme Court. What was your experience in working with her?

Ilya Somin: Jacobs was a legendary writer on urban development. She was also a critic of eminent domain abuse long before it was cool to be one, denouncing urban renewal condemnations in her famous 1961 book The Death and Life of Great American Cities.

Due to attorney-client privilege, I can’t tell you very much about my work with her. But I can say that it gave me a greater appreciation for the ways in which this issue brings together people with widely different political views. Jacobs was far to the left of me politically. But we were on the same page when it comes to the use of eminent domain to forcibly displace people for private development projects.

JB: What led to the development project in New London? Does the history of the project suggest some of the reasons why you think Kelo was wrongly decided?

Ilya Somin: The Kelo condemnations were part of an economic development project planned by the New London Development Corporation, a non-profit private entity that the City of New London authorized to use eminent domain to carry out its plan. The NLDC wanted to redevelop an economically troubled neighborhood in conjunction with Pfizer, Inc., a major pharmaceutical firm that had set up a headquarters nearby and expected to benefit from the takings.

The sad history of the project does indeed highlight some of the weaknesses of the Kelo decision. Justice John Paul Stevens’ majority opinion emphasizes the need to defer to the government’s “carefully considered” planning process, which courts should not “second guess.” But, in reality, the plan was badly flawed, as was pointed out by critics at the time, including a prescient dissenting opinion by Justice Zarella in the Connecticut Supreme Court. As a result, nothing has been built on the condemned land to this day, except for some improvised shelters for the feral cats who now inhabit the property.

The existence of a planning process is no assurance that the plan will actually provide the “economic development” that supposedly justified the use of eminent domain in the first place. The majority was also wrong to assume that a planning process is likely to prevent special interest favoritism in the use of eminent domain. In reality, powerful private interests often have a great deal of influence over planning bodies, as the evidence shows Pfizer had in this case.

JB: This book follows on your earlier book, Democracy and Political Ignorance, which argues that people may rationally decide not to pay much attention to political issues. How does political ignorance play a role in your story?

Ilya Somin: Political ignorance factors into the Kelo story in at least two ways. First, one reason why the decision was so shocking to public opinion is that most Americans  had no idea that these takings had been going on for a long time, and had been permitted under Supreme Court precedent going back to 1954. That ignorance also helps explain why these kinds of condemnations went on for so long, despite the fact that  most of the public would have disapproved had they been aware of it.

Second, ignorance reduced the effectiveness of the political backlash created by Kelo. Although numerous states enacted eminent domain reform laws in the wake of the decision, more than half only pretend to constrain economic development takings, without actually doing so. Politicians were able to get away with that in many states, in large part because most of the public can’t tell the difference between effective reform laws and ones that are mostly for show. Survey data I compiled in my research shows that only 13 percent of Americans knew whether their state had enacted effective post-Kelo reforms or not.

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Part two of the interview will appear tomorrow

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