"Judicial review of eminent domain in New York is fundamentally broken"


That's Institute for Justice attorney Robert McNamara commenting on yesterday's terrible decision in Kaur v. New York State Urban Development Corporation, where New York's highest court upheld the state's use of eminent domain on behalf of Columbia University. He's exactly right. Not only did the Court of Appeals rubber stamp the state's bogus blight findings, it completely ignored the Supreme Court's instructions in Kelo v. City of New London (2005). Now, there are certainly many things wrong with Kelo, but one thing the Court made perfectly clear is that, in the words of Justice Anthony Kennedy's concurrence, "transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause." Remember that the planners and public officials in New London determined the purpose and scope of the development project before settling on the private developer who would reap the profits. That way the prime beneficiary of the government's power isn't also shaping the manner in which the government wields that power. In Kaur, however, the Empire State Development Corporation and Columbia University worked hand-in-glove from the very start. Indeed, the whole purpose of New York's land grab isn't to develop West Harlem in the best way possible, it's to allow Columbia University to expand. That's exactly the sort of favoritism and corruption that Justice Kennedy forbids in Kelo.

So not only did New York's highest court abdicate its core responsibility to review government actions that infringe on individual rights, it also disobeyed the Supreme Court. Let's hope Justice Kennedy and his colleagues take notice and eventually rectify this gross miscarriage of justice.

NEXT: Foreign Central Banks Going for the Gold

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  1. Them v Us

    1. If noone else is going to do it….

      Us and Them

  2. That’s exactly the sort of favoritism and corruption that Justice Kennedy forbid in Kelo.


    “How many divisions does the Pope have?”

    1. As many as Reason has editors.

    2. Yeah, that’s pretty funny.

      SCOTUS (and the Federal court system in general) isn’t going to touch this case. The bright line that Damon sees simply isn’t there. SCOTUS isn’t going to feel that this case substantively violates Kelo.

      NYers are used to getting bent over by their politicians. Why should ED handling be any different? They deserve it, because they love their statists in NY.


      2. You might be right. The line quoted was in a concurrence, not the majority opinion. It might not be agreed to by the majority.

        We probably shall see eventually.

  3. Are we going to get a post covering the Weigel weasel e-mails? I’d like to know what the thought process was about hiring him. Was Tony or MNG unavailable at the time?

    1. Would you rather live in New York or in Gaza?

    2. Is it too early to call this obsession “Weigel Derangement Syndrome”?

    3. Only if you happen to give a shit about Wiegel as a drama.

      He’s moved on (rather ungraciously), shouldn’t we?

      1. And fuck Tony and MNG. If any of the H&R commenters deserve a Reason gig, it’s RC and Groovus.

        1. A lawyer and a doctor

          1. Yes. Consummate Professionals with the ability to think and write cogently.

              1. *insert good vs evil bullshit*

                Well, damn, NOW I’m conviced!

                1. yes, my son

        2. If any of the H&R commenters deserve a Reason gig, it’s RC and Groovus.

          Love it. But I gotta go with SugarFree and Warty.

          1. If Reason wants to start a fiction section that’s up to them.

            1. slashfic

    4. David at times wrote well. And lots. He did seem to really melt down over Etheridge, both at Right Now and in his comments here. Enough that I stopped reading Right Now. It’s sad.

      1. And I agree we need a Weigel thread. As a libertarian, the one thing you can count on is disappointment, so let’s have at it.

    5. Speaking of Weigel, what the hell is “ratfucking,” and why is he so focused on it?

  4. Libertarians are often accused of “worshiping wealth” in the sense of being tools of the monied classes.

    But in the Atlantic Yards case we see a clear example of left-liberals being doormats for the rich. This should be thrown in the face of every liberal democrat who claims to “speak for the poor.”

    1. But think of how much richer those poor will be once we take their homes, replace them with lucrative businesses, tax the asses of those business, then redistribute the wealth to the poor.

      Oh, and the final step: Profit!!!!

    2. *asses off those businesses

    3. Not all liberals “speak for the poor.” but none of the libertarians certainly do.

      1. Eat a bag of dicks Max.

    4. Those outside the lft-lib bubble can objectively see the rank hypocrisy. Those within that bubble of delusion don’t see it that way. There were no “poor people” (accredited victims) displaced; only people who owned property (evul land barons). Plus, the project was blessed by ACORN which makes it above criticism.

      Just as the left uses the term greenwashing we should adopt the terms povertywashing for people who claim to speak for the poor but whose actions benefit the very rich.

  5. Not only did the Court of Appeals rubber stamp the state’s bogus blight findings, it completely ignored the Supreme Court’s instructions in Kelo v. City of New London (2005).

    *Shocked* face. Who could have foreseen this?

    1. SHOCKED!?! YOU’RE SHOCKED?!…oh, whoops, you got me.

      *insert numerous Reason articles foreseeing this exact outcome*

  6. If Robert McNamara cares so much about justice then why did he kill all those innocent people in Vietnam

    1. We needed to stop the spread of communism.

      How’s that going by the way….

    2. Uh.

      The former Secretary of Defense is dead (last year, IIRC); different Robert McNamara.

      1. That’s why he took the handle he did, I guess.

  7. Is Kaur going to appeal?

  8. This is a huge violation of private property rights in Harlem. Where are the usual throngs of people who stand up for land rights? Oh yeah. I forgot. They don’t care about the land rights of Americans.

    1. “Look ‘Americans’ stole it from the Natives, so the best solution is to put all the land in the holding of bureaucrats.”

      Or something like that. We can’t give it back to the Natives, because they obviously had less idea on how to use their land productively than the people who stole it from them. Both groups have proven that they can not maximize the taxable revenue from a particular plot.

      Why do you hate tax revenues?

  9. “That’s exactly the sort of favoritism and corruption that Justice Kennedy forbids in Kelo.”

    If that were the case, he wouldn’t have established and blessed takings logic that can only prompt favoritism and corruption. It’s not as though the abuse in Kaur were anything other than inevitable.

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