"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.