The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The George Mason Law Review has just published an interesting new mini-symposium on Kelo v. City of New London and its aftermath. The Kelo case arose from unlikely origins to become one of the most controversial decisions in modern Supreme Court history, generating a massive political and judicial backlash in the process.
The mini-symposium includes insightful articles by well-known property and constitutional law scholars Josh Blackman, Carol Brown, and Julia Mahoney. Blackman's article analyzes the political reaction to Kelo from the standpoint of popular constitutionalism—a burgeoning field of research that focuses on the impact of popular political movements on constitutional law. Carol Brown analyzes some of the implications of Justice Clarence Thomas' dissent in Kelo, which in my view, is much stronger than Justice Sandra Day O'Connor's better-known dissent. Julia Mahoney's article considers the fascinating connections between Kelo, the Supreme Court's takings jurisprudence, and takings litigation resulting from the federal government's efforts to deal with the 2008 financial crisis. I have written a brief introduction to the symposium.
The symposium emerged from a panel on Kelo and its aftermath that I organized at the 2015 Association of American Law Schools annual conference. Professor Alexandra Klass, a leading takings scholar who also participated in the panel, was unfortunately unable to take part in the symposium.
This issue of the George Mason Law Review also includes a thoughtful review of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, written by Professor James W. Ely, a leading property rights scholar and legal historian. I should perhaps note that, while I was the one who suggested this symposium topic to the student editors, it was not my idea, but theirs, to include a review of my book in the same issue.