The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The soon-to-be-released independent film Little Pink House dramatizes the story behind Kelo v. City of New London, the notorious 2005 Supreme Court decision in which the justices ruled that it is permissible for the government to condemn homes in order to promote "economic development." Although the Fifth Amendment only permits the taking of private property for "public use," a narrow 5-4 majority ruled that a taking that transfers property to private developers is permissible. The Kelo case generated a massive public reaction, with over 80% of Americans opposing the ruling, and 45 states passing reform laws intended to restrict the use of eminent domain for private development. No other case united such disparate people and groups as the NAACP, libertarian property rights advocates, Ralph Nader, and Rush Limbaugh.
Little Pink House, loosely based on journalist Jeff Benedict's book of the same name, does an excellent job of portraying the human drama that led to Supreme Court decision. It shows how a group of lower-middle class New London, Connecticut homeowners found themselves steamrolled by a plan to take their land in order to facilitate a development project backed by powerful political forces, including Connecticut Governor John Rowland, the New London Development Corporation (the private organization that planned and conducted the takings on behalf of the City of New London), and Pfizer, Inc., a major pharmaceutical firm that hoped to benefit from the development project. The film depicts how Susette Kelo—owner of the iconic "Little Pink House" that became a nationally known symbol of the case—and her neighbors did all they could to resist the seizure of their land through the political process, but were overmatched by powerful opponents. It also portrays some (but by no means all) of the extralegal harrassment by which the NLDC sought to pressure owners to sell "voluntarily." These shenanigans included such tactics as menacing late night phone calls, dumping of waste on the resisting owners' property, and locking out tenants during cold winter weather.
The film movingly depics the pain and desperation of people faced with the loss of their homes, without any effective recourse. The multiyear legal and political battle over the takings was an excruciating ordeal for those involved. As Richard Beyer told me in an interview, he and the other property owners felt as if they were "living in our own prison" during the "whole period" of litigation.
The movie also effectively conveys the role of the Institute for Justice (IJ), the libertarian public interest law firm that represented the property owners on a pro bono basis, and took the case all the way up to the Connecticut Supreme Court and the federal Supreme Court. There is no better cinematic portrayal of how a public interest law firm like IJ, the NAACP Legal Defense Fund, or the ACLU operates: simultaneously litigating cases in both the courtroom and the court of public opinion.
The film even manages to accurately depict some key aspects of the main legal issue at stake in the litigation: is the correct definition of "public use" broad enough to encompass anything that might benefit the public in some way, or is it limited to publicly owned projects or private ones that have a legal duty to serve the entire public, such as a public utility? As the film shows, one of the key moments in the case came when Justice Sandra Day O'Connor asked New London's lawyer whether it would be permissible to condemn a Motel 6 in order to replace it with a Ritz Carlton simply because the latter might produce more tax revenue: he answered yes.
The movie necessarily omits or simplifies some key aspects of the Kelo story. Most of the property owners' side of the tale is seen through the eyes of Susette Kelo, whom IJ chose as the main public face of the case in part because she is charismatic and very effective in media appearances. As with other iconic Supreme Court cases, such as Brown v. Board of Education and Tinker v. Des Moines, the person whose name is listed first became nationally famous, while other participants are often overlooked.
The focus on Susette Kelo is understandable. But it comes at the cost of downplaying the stories of the others, some of whom probably suffered even greater anguish than she did. For example, Wilhelmina Dery, who was in her eighties, had lived in the same house her whole life, and adamantly refused to leave. The Cristofaro family were also strongly attached to their property, which they had purchased decades earlier after their previous home had been condemned as part of an urban renewal project. Both Wilhemina Dery and Margherita Cristofaro passed away during the course of the litigation. Relatives believe that their deaths may have been hastened by the stress of the ongoing legal battle.
The constitutional issues in the case were also unavoidably compressed. For example, the movie could not be expected to convey the ways in which Kelo built on real (and imagined) imagined prior precedent, and how the case looks through the lense of originalist and living constitution approaches to constitutional interpretation. The movie also only briefly touches on the dramatic political reaction generated by Kelo, and the resulting reform movement. I discuss both the legal issues in Kelo, and the dramatic aftermath of the case in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.
For legal reasons, the names of most of the people involved on the NLDC and New London side of the litigation were changed in the movie. These individuals probably will not be happy about the way their analogues are portrayed. But I believe the film accurately portrays their genuine belief that they were acting to promote the public good. For the most part, these were not cackling villains, but people who honestly thought that forcibly displacing homeowners was the best way to revitalized an economically depressed community. The movie also, however, conveys their blindness to crucial flaws in the NLDC development plan, and inability to understand how their actions would be perceived by the public.
Sadly, the the ill-conceived NLDC development project fell through, and the condemned property remains empty to this day, occupied only by a colony of feral cats.
The pain caused by the Kelo condemnations and litigation was far from entirely in vain, however. It led to valuable—even if incomplete—reforms in many states, and broke the seeming consensus in favor of a broad view of "public use." The Supreme Court might well overrule or limit Kelo in a future decision. In the meantime, it is hard to find a better cinematic dramatization of a famous Supreme Court decision than Little Pink House.
The film will be released this weekend, with showings scheduled at times and places listed here.
DISCLOSURE: I had a very minor role as an unpaid informal adviser to the producers of Little Pink House, offering a few suggestions based on my research on the case. I have also done pro bono legal work for the Institute for Justice on a number of property rights cases. I do not have any financial stake in the film. My view of the movie is, however, unavoidably influenced by personal knowledge of many of the people depicted.