Brennan Center Symposium on "2025's Most Significant State Constitutional Cases"

Contributors include Eugene Volokh and myself, among many others.

Today, the Brennan Center State Court Report published its symposium on "2025's Most Significant State Constitutional Cases." Contributors include  Erwin Chemerinsky, Miriam Sefter, former Ohio Supreme Court Chief Justice Maureen O'Connor, former Texas Supreme Court Chief Justice Nathan Hecht, Anthony Sanders (Institute for Justice), the Volokh Conspiracy's own Eugene Volokh, and myself, among others. Here is an excerpt from my contribution:

In Norfolk Southern Railway Company v. State Corporation Commission, the Virginia Supreme Court held that a law authorizing broadband service providers to take property to install fiber optic cables across railroad-owned land violated the state constitutional requirement that eminent domain can only be used for a "public use" and that a taking for a private entity does not qualify unless it is "for the authorized provision of utility, common carrier, or railroad services…."

The case is significant because it addresses one of the constitutional amendments enacted in multiple states in the wake of the U.S. Supreme Court's controversial 2005 ruling in Kelo v. City of New London, which held that private "economic development" is enough to satisfy the public use requirement of the Fifth Amendment. These post-Kelo reforms — or state court interpretations of preexisting constitutional provisions — have frequently provided stronger protections against abusive takings than the U.S. Supreme Court was willing to enforce under Kelo. The post-Kelo experience provides a potential model for other state constitutional litigation and reform efforts on property rights issues, most notably exclusionary zoning. But such state-level initiatives are not a fully adequate substitute for strong enforcement of federal constitutional protections in these areas.

Eugene's piece addresses North Carolina Bar and Tavern Association v. Stein, an important economic liberties case.