More Good Kelo Analyses

Lynne Kiesling

Lest you think that I’ve become a one-trick pony and can think of nothing else except Kelo, I offer this justification for my attention to it: this is such a big deal that even people who don’t normally pay attention to such things are paying attention and are outraged. All sorts of people I talked to over the weekend had heard about it, read about it, and formed opinions about it (typically negative).

I think this legal decision might be a tipping point. Or, as Adrian Moore said at Out of Control: “will people rise up to protect their property?” See also other posts at Out of Control, as well as Reason’s Eminent Domain Resource Center. I think they will. Bureaucrash has mobilized an “Operation Our Land” protest rally on Wednesday 29 June on the Court steps; you have to go to their page to check out their “Bureaucrash vs. the Supreme Reapers” graphic. The Castle Coalition has a header on their website:

On June 24, 2005, the Supreme Court put a big UP FOR GRABS sign on your home.

I do think it’s a tipping point, and I deeply hope that I’m right.

Jeff Jacoby’s Boston Globe column on Sunday was a particularly good commentary. So was Randall Parker’s post at Parapundit, and I also like that one of his commenters pointed out that this decision opens the door to governments picking winners and losers in private development.

That point actually relates to the several discussions of the matter that the KP Spouse and I had over the weekend. He said that his biggest objection to the ruling was that it opened up more avenues for local governments to engage in risky and speculative activity, at great risk and potential cost to taxpayers. Governments are not the proper institutions for engaging in risky ventures; they don’t hedge, they don’t do a good job of managing costs, and they impose risks on people unwittingly that they might not choose to accept themselves. Sometimes I think the KP Spouse is really a deep and insightful economist, in addition to a physicist!

Sheldon Richman’s commentary from Friday is also more fuel for the fire.

Adam Thierer and Ray Gifford at PFF have good commentaries on the effects of this ruling on the tech sectors; Jim DeLong also observes that one type of property that could fall prey to extended expropriation because of this ruling is pharmaceutical patents. Scary.

In a EconLog post in which Arnold Kling links to the Becker post and Posner post on the case at the Becker-Posner blog, the issue of holdout comes up. Traditionally, eminent domain has been intended to enable local governments to circumvent holdout incentives in amassing plots of land necessary to complete required public works. In fact, Posner focuses on the holdout issue in his post, and Richard Epstein does as well in his commentary in today’s Wall Street Journal.

In the comments to Arnold’s post, Patrick Sullivan makes what I think is a suggestion worth considering: in a situation that could raise holdout incentives, why doesn’t the potential buyer make each of the individual offers contingent on 100% acceptance? In fact, I just watched Pale Rider a couple of weeks ago, and the evil hydraulic mining owner basically did that to the tin-panners he was trying to drive out (of course, they told him to get stuffed and then Clint went in and kicked butt …).

But this is a good question: would a modified unanimity rule mitigate the holdout problem?

UPDATE: Kent Lassman has a post at the John Locke Foundation blog that links to Thomas Sowell’s commentary, complete with a good use of Hayek’s local knowledge concept.


3 thoughts on “More Good Kelo Analyses

  1. Apparently the Constitution is not only a “living document”, but it also has a voracious appetite and a very short memory.

    Within the last couple of years, we have lost a substantial portion of the First Amendment and now of the Fifth Amendment. Which Amendment will receive “new life” next? “Film at 11!”

    I don’t know which is worse: creating “rights” which were not included in the “Founders’ Constitution”. or losing rights that were included.

  2. I’m not big on the ruling either. Separate from the constitutional state/federal issue, I’m also very leery of the ability of local governments to steer economic development. It can work and work well (see the transit-oriented development in Arlington for example) but the eminent domain ruling tips the balance too far. Needing to get property owners to sell is a good constraint on stupid ideas, basically.

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