an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
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
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 Americanshad 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 thatmost 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