Posted by Ilya Somin: The Kelo Story - Jeff Benedict's Little Pink House: http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1235208323
People interested in property rights issues generally or Kelo v. City of New London specifically should definitely read Jeff Benedict's new book, [1]Little Pink House. Kelo [2]generated a broader political backlash than any other modern Supreme Court decision, and Benedict's book is by far the most thorough account of the development project and condemnations that led to case. Benedict doesn't focus much on the legal issues involved, which have already been beaten to death by a small army of legal scholars (myself included). He does, however, provide an in-depth account of the path by which the city of New London decided to condemn the plaintiff's homes and other property in order to promote "economic development" and the course of hte political and legal struggle between the two sides. Although Benedict's sympathies are clearly with the property owners, he also conducted numerous interviews with the lawyers and officials on the other side, so their perspective gets extensive coverage in the book. For example, he provides a fascinating portrait of Claire Gaudiani, president of Connecticut College and of the New London Development Corporation - the quasi-governmental entity that decided to go forward with the condemnations. Several points that emerge from Benedict's account are especially relevant to the broader debate over eminent domain sparked by Kelo. First, Benedict establishes that the NLDC and state government officials who undertook the condemnations genuinely believed that they were serving the public interest and did not see themselves as advancing the objectives of the Pfizer Corporation [3]which played a key role in instigating the takings and stood to benefit from them at the expense of the general public. I don't find this as comforting as many Kelo defenders seem to. As I have pointed out in various articles (e.g. - [4]this one), most people have a strong tendency to convince themselves that anything that serves their self-interest or political advantage is also in the public interest. For example, I fully accept that Gaudiani believed that the Kelo takings would benefit the community and advance the cause of "social justice," as she put it. But I am skeptical that she reached these conclusions entirely uninfluenced by the fact that her husband was a Pfizer vice president, and that successful implementation of the project would have advanced her own career. The understandable human tendency to conflate one's own interest with the public interest undercuts the viability of proposals to distinguish between permissible nad impermissible takings by focusing on the intent of government officials in order to determine if they were motivated by "favoritism" (as advocated by Justice Kennedy in his Kelo concurring opinion). Second, the book shows the ways in which the targets of condemnation are often determined by their political weakness. Although the NLDC publicly insisted that their economic development project required the government to take over every bit of the targeted Fort Trumbull neighborhood, in fact the pattern of condemnations was largely driven by the political influence or lack thereof of the property owners involved. One of the best parts of Benedict's book describes how the NLDC decided to spare property belonging to the Italian Dramatic Club - an all-male social club that had a lot of clout in New London politics in part because many local elites were members. Susette Kelo and her neighbors (most of whom were working or lower middle class) lacked similar influence and so were out of luck. More generally, the book shows the great difficulty of resisting eminent domain when those targeted are relatively lacking in political influence. Although Kelo and the other targeted property owners put it an enormous effort and were aided by experienced political activists, they couldn't make any political headway in resisting the condemnations until the Institute for Justice - a prominent libertarian public interest firm - filed a legal case on their behalf and helped bring the case to the attention of the national media. Their experience illustrates the limits of the political process as a means for protecting the property rights of the poor and politically weak. Few targeted property owners are as persistent and determined as Susette Kelo, and fewer still have the good fortune to attract extensive media attention to their plight. These realities weaken claims that we don't need judicial intervention or new laws limiting eminent domain authority because individual property owners can protect their rights in the political process on a case by case basis. Third, the book does an excellent job of portraying the human cost of going through an eminent domain case. Kelo and the other targeted property owners had their lives severely disrupted for several years, as they waited to see whether they would lose their homes. Perhaps even worse, the NLDC and the City subjected them to a variety of petty harrassment in order to force them to give in, including trying to charge them rent for living in their own homes, blowing up buildings on nearby lots (thereby spreading debris and dust on the resisting owners' land), and attempting to force out one of the owners' tenants in order to cut into his income. Realistically, few property owners of modest means can afford to go through such an ordeal. Moreover, the New London owners had the immense advantage of getting excellent pro bono legal representation from the Institute for Justice; they might not have been able to engage in a prolonged legeal battle otherwise. Such problems cut against claims that eminent domain abuse can be prevented by granting property owners stronger procedural rights. To the contrary, the longer and more complicated the legal procedures for eminent domain, the greater the cost of going through them for owners and the greater the incentive to give in to the government's demands rather than resist. Finally, Benedict highlights an often-overlooked aspect of Kelo-style "economic development" takings: their all too common failure to actually produce the economic development that supposedly justified them in the first place. As he points out, almost four years after the legal battle ended and nearly ten years after the NLDC's development project began, the City still hasn't built anything on the condemned land and there is no prospect of doing so anytime soon. So far, the net result of the NLDC's condemnation efforts has been to destroy an entire neighborhood and waste some $80 million in public funds. [5]The failure of the Kelo condemnations to actually benefit the local economy is a predictable result of the perverse incentives facing the NLDC and other similar agencies. Benedict's book does have a few shortcomings. In several places, he misstates a few of the legal issues involved in the case. For example, he claims that the Kelo decision "changed the rules" in favor of a more permissive standard for condemnations. In reality, as I explained in [6]this article (pp. 224-25), previous Supreme Court precedent was so lax as to allow the government condemn virtually any property for virtually any reason. The true effect of Kelo was not a "change in the rules," but heightened public awareness of the gross abuses permitted by existing legal doctrine. Despite a few such errors, Little Pink House is an impressive account of the events leading up to the most controversial property rights decision in Supreme Court history. References 1. http://www.amazon.com/Little-Pink-House-Defiance-Courage/dp/0446508624 2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976298 3. http://volokh.com/archives/archive_2005_10_23-2005_10_29.shtml#1130160017 4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=874865 5. http://volokh.com/archives/archive_2007_12_09-2007_12_15.shtml#1197522227 6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=874865 _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
