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October 7, 2009
First Monday in October: An Open Letter to Sonia Sotomayor about Noticing an Eminent Reality
Noticing New York
Michael D.D. White pens an open letter about eminent domain law to the newest Supreme Court justice.
I do not expect or urge that you break with precedent. Not at all. I am expecting that you would, as you expressed at your confirmation hearings, faithfully adhere and be fully bound by stare decisis. Indeed, despite frequent criticisms that the Supreme Court’s decision in Kelo was flawed, the guidance in this latest pronouncement on eminent domain prescribes lots of dandy principles that we think should be properly followed to steer clear of developer-initiated, developer-driven transactions that abuse eminent domain. Among them are not picking a particular developer-transferee before a development plan exists and not concocting development plans that are “of primary benefit to ... the developer,” or “only of incidental benefit to the city.” (See: Saturday, July 19, 2008, Reality Denied!)
Given all the dandy prescriptive principles that abound in Kelo, all that remains to animate the protection of the good intentions underlying those principles is to acknowledge basic truths about real life and politics in state development agencies.
The Kelo decision was decided 5-4. When your nomination was confirmed you replaced Justice David Souter, one of the justices in the majority who voted in the Kelo decision to give the government a dangerously tricky degree of latitude to take property from one private owner and give it to another for public development. The court’s ruling in Kelo, decided without a majority opinion, was reflected in a plurality opinion of four justices (in which Justice Souter joined) and far, far more important, the skeptical, cautionary concurring opinion of Justice Kennedy.
Posted by eric at October 7, 2009 12:51 PM