The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Harvard economist Edward Glaeser, one of the world's leading experts on urban development, has a thoughtful and generous review of my new book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, which analyzes one of the Supreme Court's most controversial property rights decisions, and the political reaction it generated. The review makes several insightful points about eminent domain and strategies for curbing abusive takings.
I agree with Glaeser that "[i]f property owners like Susette Kelo are to be protected, we need both judicial and legislative action," though I advocate a somewhat greater role for judicial review than he would. In the Conclusion of my book, I emphasize that successful constitutional reform movements have generally relied on a combination of political action and litigation rather than pursuing one strategy exclusively. The movement to strengthen protection for constitutional property rights should follow the same approach. I also agree with Glaeser on the need to increase compensation for property owners who lose their land to eminent domain, though, for reasons outlined in Chapter 8 of the book, I am less optimistic about this strategy than he is.
In some other ways, I am actually more optimistic than Glaeser. While, as he notes, my book details how many of the 45 states that enacted post-Kelo reform laws adopted ones that provide little meaningful protection for property owners, some states have adopted strong reforms, and others have seen important judicial decisions enforcing state constitutional constraints on takings.
Glaeser correctly emphasizes that some reforms can be circumvented. For example, banning "economic development" takings may not do much good if "blight" condemnations are still permitted, and blight is defined so broadly that virtually any area qualifies. But, as discussed in the book, there are ways to close off such loopholes and some post-Kelo reforms have successfully incorporated them. We have a long way to go before we eliminate abusive takings. But, overall, the situation is considerably better than it was before the Kelo decision came down ten years ago.
Though we disagree on a few points, I am grateful for Glaeser's excellent commentary on The Grasping Hand, and hope that the book will continue to stimulate debate and discussion on these important issues.