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November 5, 2007

Does the AY eminent domain lawsuit have a shot? Two law profs are doubtful

CageMatch.jpg Atlantic Yards Report has the details on the cage match between legal scholars and Develop Don't Destroy Brooklyn's attorney for the federal eminent domain suit:

Two legal experts, while not expressing support for the Atlantic Yards project, nevertheless said at a panel discussion last Wednesday at Yeshiva University’s Cardozo School of Law that they thought the pending eminent domain challenge would fail in a federal appellate court, given current legal doctrine.

The court will dismiss the suit, as did the trial court judge, they said, because of the presence some public benefits, and because judges are loath to set a precedent in which courts investigate the motives of decision-makers.

The predictions by Cardozo law professor Stewart Sterk and University of Chicago law professor Richard Epstein generated a forceful response from the third panelist, New York attorney Matthew Brinckerhoff, who represents the plaintiffs in Goldstein v. Pataki and argued the appeal, before an engaged but skeptical panel, on October 9.

Brinckerhoff stressed that eminent domain doctrine seems to be evolving. If the Supreme Court opened up the possibility that motives to confer a private benefit can be questioned, as it did in the 2005 Kelo v. New London decision, he said, there must be some fact-finding to reconcile that with the established “rational basis” (the lowest level of judicial scrutiny) doctrine for finding public purposes.

Hence his hope that the appellate court sends the case back for discovery, the disclosure of information held by the defendants, and then trial to determine that the use of eminent domain is, in fact, legitimate.

Though two law professors who apparently hadn't read all (or any?) of the legal papers don't necessarily represent a consensus, neither Epstein nor Sterk are particularly sympathetic to eminent domain. So that may be a sign that the federal eminent domain case, believed by many Atlantic Yards opponents to be the best chance to stop the project, may be a longer shot than the state court challenge to the environmental review, which remains pending long after a decision was due.


Posted by lumi at November 5, 2007 6:55 AM