The limits of backlash:Assessing the political response to kelo

Minnesota Law Review

Volumn 93, Issue 6, 2009, Pages 2100-2178

  Somin, Ilya ^a  

^a GEORGE MASON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 58249129461     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (347)

1. Kelo v. City of New London, 545 U.S. 469 (2005).
2. For the most complete and up to date listing of state post-Kelolegislative initiatives, see The Castle Coalition: Citizens Fighting Eminent Domain Abuse, Enacted Legislation Since Kelo,http://www. castlecoalition.org/index .php?option=com-content&task=view&id=510 (last visited May 17, 2009) [hereinafter Castle Coalition]. Other parts of the website also discuss proposed and enacted federal legislation.
3. 408 U.S. 238, 256-67 (1972).
4. See Gregg v. Georgia, 428 U.S. 153, 179-80 & n.23 (1976) (noting that "at least 35 states" and the federal government had enacted new death penalty statutes in response to Furman,and listing the state laws in question).
5. Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
6. For a list of states enacting constitutional bans on same-sex marriage, see NAT'L CONFERENCE OF STATE LEGISLATURES, SAME SEX MARRIAGE, CIVIL UNIONS AND DOMESTIC PARTNERSHIPS (2008), http://www.ncsl.org/programs/ cyf/samesex.htm.
7. See In re Marriage Cases, 183 P.3d 384, 450-52 & n.70 (Cal. 2008),superseded byCAL. CONST, art. I, § 7.5; Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 481 (Conn. 2008).
8. I do not consider cases such as Pollock v. Farmers' Loan and Trust Co.,157 U.S. 429 (1895), superseded byU.S. CONST, amend. XVT, and Chi-sholm v. Georgia,2 U.S. (2 Dall.) 419 (1793), superseded byU.S. CONST, amend. XI, which were eventually overruled by constitutional amendment. It is difficult to say whether one constitutional amendment can be considered a more sweeping reaction than numerous state and federal laws.
9. See Richard A. Posner, The Supreme Court, 2004 Term-Foreword: A Political Court,119 HARV. L. REV. 31, 98 (2005) (claiming that "the strong adverse public and legislative reactions to the Kelodecision" are a justification of the decision). At his confirmation hearing before the Senate, then-Judge John Roberts commented that the legislative reaction to Keloshows that "this body [Congress] and legislative bodies in the States are protectors of the people's rights as well" and "can protect them in situations where the Court has determined, as it did 5-4 in Kelo,that they are not going to draw that line." Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary,109th Cong. 286 (2005).
10. Posner, supra note 9, at 98.
11. For perhaps the best-known modern statement of this argument, see JOHN HART ELY, DEMOCRACY AND DISTRUST 87-88 (1980) (arguing that judicial review should focus on protecting citizens' rights to participate in the political process and minority groups against oppression by the majority).
12. THE FEDERALIST NO. 10 (James Madison).
13. Id.
14. The most complete earlier published analysis is Timothy Sandefur, The "Backlash" So Far: Will Americans Get Meaningful Eminent Domain Reform,2006 MICH. ST. L. REV. 709. Sandefur's article is an excellent contribution to the literature, but was written too soon to take account of the ten referendum initiatives enacted in 2006, as well as several legislative reforms enacted after the summer of 2006. I also provide a very different explanation of the pattern of effective and ineffective reforms than Sandefur does, as well as providing extensive public-opinion data. An article by Janice Nadler, Shari Seidman Diamond, and Matthew M. Patton analyzes public opinion on Kelo,but does not examine the legislation passed as a result, and does not explain the three anomalies discussed in Part III of this paper. See Janice Nadler et al., Government Takings of Private Property, inPUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 286 (Nathaniel Persily et al. eds., 2008). Noel D. Campbell, R. Todd Jewell, and Edward J. Lopez's analysis of post-ifeZo reform takes into account only thirty-seven state laws, and does not consider the federal response. See Edward J. Lopez et al., Pass a Law, Any Law, State Legislative Responses to the KeloBacklash (June 17, 2008) (unpublished manuscript, on file with author), available athttp://papers.ssrn.com/ sol3/papers .cfm?abstract-id=1022385. Andrew Morriss's forthcoming article only considers reforms enacted by state legislatures, omitting both the federal response and state referendum initiatives. See Andrew Morriss, Symbol or Substance? An Empirical Assessment of State Responses toKelo (Univ. of 111. Law & Econ. Research Paper No. LE07-037), available athttp://papers. ssrn.com/sol3/papers xfm?abstract-id=l 113582.
15. I do address these issues in Ilya Somin, Controlling the Grasping Hand: Economic Development Takings AfterKelo, 15 SUP. CT. ECON. REV. 183, 190-210, 233-44 (2007) [hereinafter Somin, Grasping Hand].
16. Nader has been a longstanding critic of economic development takings. See, e.g.,Ralph Nader & Alan Hirsch, Making Eminent Domain Humane,49 VlLL. L. REV. 207 (2004) (arguing that they should be banned in most cas-es). For his statement denouncing Kelo,see Ralph Nader, Statement, June 23, 2005, http://ml.greens.org/pipermail/ctgp-news/2005-June/ 000507.html (last visited May 17, 2009) ("The U.S. Supreme Court's decision in Kelo v. City of New Londonmocks common sense, tarnishes constitutional law and is an affront to fundamental fairness.").
17. For Limbaugh's denunciation of Kelo,see Rush Limbaugh: Liberals Like Stephen Breyer Have Bastardized the Constitution(Free Republic radio transcript Oct. 12, 2005), available athttp://www.freerepublic.com/focus/ f-news/1501453/posts ("Government can kick the little guy out of his and her homes and sell those home [sic] to a big developer who's going to pay a higher tax base to the government. Well, that's not what the takings clause was about. It's not what it is about. It's just been bastardized, and it gets bastardized because you have justices on the court who will sit there and impose their personal policy preferences rather than try to get the original intent of the Constitution.").
18. See, e.g.,ROBERT S. ERIKSON ET AL., STATEHOUSE DEMOCRACY 78-82 (1993) (arguing that state public policy closely follows majority public opinion).
19. This figure does not include the state of Utah, which enacted effective eminent domain reform prior to Kelo. Seediscussion of the Utah law in note 85 and accompanying text.
20. See Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory,89 IOWA L. REV. 1287, 1290-304 (2004) [hereinafter Somin, Political Ignorance](summarizing evidence of extensive voter ignorance); Ilya Somin, Voter Ignorance and the Democratic Ideal,12 CRITICAL REV. 413, 413-19 (1998) [hereinafter Somin, Voter Ignorance](same).
21. Somin, Voter Ignorance, supranote 20, at 416-19.
22. For a more detailed discussion, see id.at 435-38.
23. See CTR. FOR ECON. & CIVIC OPINION AT UNIV. OF MASS ./LOWELL, THE SAINT INDEX POLL qstn. 9 (2007) (on file with author) [hereinafter 2007 SAINT INDEX]. The survey included 1000 respondents in a nationwide random sampie. See alsoCTR. FOR ECON. & CIVIC OPINION AT UNIV. OF MASS./LOWELL, THE SAINT INDEX POLL (2005) (on file with author) [hereinafter 2005 SAINT INDEX].
24. For a more detailed discussion of Kelo'sholding, from which this brief summary is drawn, see Somin, Grasping Hand, supranote 15, at 223-33.
25. Kelo v. City of New London, 545 U.S. 469, 473-77 (2005).
26. Id. at 475.
27. Id. at 473.
28. Id.at 478-85.
29. Id.at 480.
30. Id.at 485-86.
31. Id. at 487-88.
32. Id. at 488.
33. Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984).
34. Kelo,545 U.S. at 499-505 (O'Conner, J., dissenting); id.at 519-23 (Thomas, J., dissenting).
35. Id. at 491 (Kennedy, J., concurring).
36. H.R. Res. 340, 109th Cong. 2005; 151 CONG. REC. H5592-93 (daily ed. June 29, 2005) (enacted); Adam Karlin, A Backlash on Seizure of Property,CHRISTIAN SCI. MONITOR, July 6, 2005, at 1 (describing massive anti-Kelobacklash).
37. See, e.g., Limbaugh, Liberals Like Stephen Breyer, supranote 17. The New London property owners were represented by the Institute for Justice, a prominent libertarian public interest law firm. See Kelo,545 U.S. at 471.
38. See Eric Kriss, More Seek Curbs on Eminent Domain, SYRACUSE POST-STANDARD, July 31, 2005, at A16 (noting Clinton's opposition to the ruling).
39. See KSL TV, Howard Dean Speaks to Utah Democrats(KSL television broadcast July 16, 2005), available athttp://tv.ksl.com/index. php?nid=:148& sid=6641 (quoting Dean as denouncing "a [R]epublican-appointed Supreme Court that decided they can take your house and put a Sheraton Hotel in there").
40. See Charles Hurt, Congress Assails Domain Ruling,WASH. TIMES, July 1, 2005, at Al (quoting Waters denouncing Keloas "the most un-American thing that can be done").
41. See Brief for the National Ass'n for the Advancement of Colored People et al. as Amici Curiae Supporting Petitioners, Kelo v. City of New London, 545 U.S. 469 (2004) (No. 04-108).
42. See Brief for the Becket Fund for Religious Liberty as Amici Curiae Supporting Petitioners, Kelo v. City of New London, 545 U.S. 469 (2004) (No.04-108).
43. See infratbl.l. The differences between the two surveys are likely due to a difference in question wording.
44. See infratbl.l.
45. The Zogby survey question asked respondents whether they agreed "with the recent Supreme Court ruling that allowed a city in Connecticut to take the private property of one citizen and give it to another citizen to use for private development?'ZOGBY INT'L, AMERICAN FARM BUREAU FEDERATION SURVEY 27 qstn. 28 (Nov. 2, 2005) [hereinafter ZOGBYlNT'L] (emphasis added) (on file with author). This wording ignores the fact that the legal rationale for Kelois that the takings are intended to promote "public" development. By contrast, the Saint Index survey asked respondents whether they supported or opposed the Court's decision "that local governments can take homes, business and private property to make way for private economic development if officials believe it would benefit the public."2005 SAINT INDEX, supranote 23, qstn. 10. (emphasis added).
46. See infra thl.l.
47. 2005 SAINT INDEX, supranote 23, qstn. 10.
48. See CTR. FOR ECON. & CIVIC OPINION AT UNIV.OF MASS./LOWELL, THE SAINT INDEX POLL qstn. 9 (2006) (on file with author) [hereinafter 2006 SAINT INDEX]; see alsoIlya Somin, Is Post-Kelo Eminent Domain Reform Bad for the Poor?,101 NW. U. L. REV. 1931, 1940 tbl.2 (2007).
49. ZOGBY INT'L, supranote 45, at 27 qstn. 28. Question wording: "Do you strongly agree, somewhat agree, somewhat disagree, or strongly disagree with the recent Supreme Court ruling that allowed a city in Connecticut to take the private property of one citizen and give it to another citizen to use for private development?" Id.The totals given here differ slightly from those published by Zogby because they correct a minor clerical error in Zogby's tabulation.
50. 2005 SAINT INDEX, supranote 23, qstn. 10. Question wording: "The U.S. Supreme Court recently ruled that local governments can take homes, business and private property to make way for private economic development if officials believe it would benefit the public. How do you feel about this ruling?" Id.
51. The figures for Asians, Hispanics, and Native Americans may be unreliable because of small sample sizes. See ZOGBY INT'L, supra note 45, at 27 qstn. 28; 2005 SAINT INDEX, supranote 23 qstn. 10.
52. QUINNIPIAC UNIV. POLLING INST., QUINNIPIAC UNIVERSITY POLL: CONNECTICUT VOTERS SAY li-i STOP EMINENT DOMAIN, qstn. 33 (2005), http://www.quinnipiac.edu/xl296.xml?ReleaseID= 821. Question wording: "As you may know, the Court ruled that government can use eminent domain to buy a person's property and transfer it to private developers whose commercial projects could benefit the local economy. Do you agree or disagree with this ruling? Do you agree/disagree strongly or somewhat?" Id.
53. MASON DLXON POLLING & RESEARCH INC., FLORIDA VOTERS OPPOSE COURT DECISION ON EMINENT DOMAIN, STRONGLY SUPPORT STATE LAW TO PROTECT PROPERTY RIGHTS 5 (2005), http://www.rg4rb.org/surveyEmDom .html. Question wording: In that Connecticut case, the U.S. Supreme Court ruled government can use the power of eminent domain to acquire a person's property and transfer it to private developers whose commercial projects could benefit the local economy. Do you agree or disagree with this ruling? (Is that strongly agree/disagree or somewhat agree/disagree?). Id.
54. COLE HARGRAVE SNODGRASS & ASSOCS., A SURVEY OF 400 REGISTERED VOTERS IN KANSAS WITH A 200-SAMPLE SUBSET (2006), http://www .castlecoalition.org/pdf/polls/amcns-prosp-poll-KS.pdf. Question wording: For years, governments have used the power of eminent domain to take control of private property and then use that property for schools, hospitals, roads, parks and other public services. Recently, the Kansas Supreme Court has expanded the government's ability to use eminent domain to include taking control of private property and transferring it not for public services, but to other private interests such as shopping centers or car lots. Do you favor or oppose the increased use of eminent domain to include taking private property and transferring ownership to other private interests? (After response, ask:) Would you say you strongly (favor/oppose) or only somewhat (favor/oppose)? Id.(survey question wording on file with author).
55. UNIV. OF N.H. SURVEY CTR., THE GRANITE STATE POLL (2005), http://www.unh.edu/survey- center/news/pdf/gsp2005-summer-sc072005.pdf. Question wording: Recently, the Supreme Court ruled that towns and cities may take private land from people and make it available to businesses to develop under the principle of eminent domain. Some people favor this use of eminent domain because it allows for increased tax revenues from the new businesses and are an important part of economic redevelopment. Other people oppose this use of eminent domain because it reduces the value of private property and makes it easier for big businesses to take land. What about you? Do you think that towns and cities should be allowed to take private land from the owners and make it available to developers to develop or do you oppose this use of eminent domain? Id.
56. DECISION RES. LTD., MINNESOTA AUTO DEALERS ASSOCIATION SURVEY (2006), http://www.castlecoalition.org/pdf/polls/Survey-for-Strib.pdf. Question wording: "What is your opinion-do you support allowing local governments to use eminent domain to take private property for another private development project? Do you feel strongly this way?" Id.
57. JOHN WILLIAM POPE CIVITAS INST., JOHN WILLIAM POPE CIVITAS INSTITUTE SURVEY (2005), http://www.jwpcivitasinstitute.org/ keylinks/poll-august.html. Question wording: "The Supreme Court recently expanded the power of government to take private property for non-public use. Do you agree or disagree with this expansion of government's right to take private property?" Id.
58. LINCOLN INST. OF PUB. OPINION RESEARCH, INC., KEYSTONE BUSINESS CLIMATE SURVEY (2006), http://www.lincolninstitute.org/polls. php. Question wording: "A recent U.S. Supreme Court decision upheld the taking of private residential property by local municipalities to enable private developers to build higher tax-yielding structures on that land. Do you agree or disagree with this ruling?" Id.
59. Soc. Sci. RESEARCH INST. AT THE UNIV.OF TENN., KNOXVILLE, TENNESSEE POLL 6 (2006), http://web.utk.edu/̃ssriweb/National-Issues.pdf. Question wording: "Sometimes the property taken through eminent domain is given to other private citizens for commercial development, rather than for public uses, such as road or schools. Would you say you favor or oppose this use of eminent domain?" Id.
60. See supratbl.2.
61. For a discussion of this law, see infranotes 198-201 and accompanying text.
62. For an analysis of these types of ineffective laws, see infraPart II.A.1.a.
63. The total number of states listed adds up to more than forty-three because a few states had effective legislative reforms followed by ineffective legislative-referendum initiatives; such states are thus counted in both of those categories. The state of Florida enacted legislative and referendum initiative reforms that were both effective and is counted in both "effective" categories. Nevada had an effective referendum initiative followed by an ineffective legislative reform.
64. This figure does not include the state of Utah, which abolished both economic development and blight condemnations before Kelo. See infranote 81 and accompanying text. I do include the state of Washington, despite the fact that it recently enacted a change in its eminent domain law unrelated to Kelo. See infraPart II.A.l.b.vii.
65. As of January 2008. "L" refers to passed state legislation; "CR" refers to passed citizen-initiated referenda; "LR" refers to passed legislature-initiated referenda.
66. See DANA BERLINER, INST.FOR JUSTICE, PUBLIC POWER, PRIVATE GAIN: A FIVE-YEAR, STATE-BY-STATE REPORT EXAMINING THE ABUSE OF EMINENT DOMAIN (2003), http://www.castlecoalition.org/pdfyreport/ED-report.pdf. Berliner was one of the two Institute for Justice lawyers who represented Su-sette Kelo and the other New London property owners. See Kelo v. City of New London, 545 U.S. 469, at 469 (2005).
67. See BERLINER, supranote 66, at 2.
68. Id.
69. Id.at 3.
70. See infratbl.5.
71. See infratbls.Al-A3.
72. See infratbl.Al.
73. See infratbl.A2.
74. Some takings affected more than one property.
75. As of January, 2009.
76. See infranotes 192-196 and accompanying text.
77. See infranote 188 and accompanying text.
78. See County of Wayne v. Hathcock, 684 N.W.2d 765, 784 (Mich. 2004). For an analysis of Hathcock,see Ilya Somin, OvercomingPoletown: County of Wayne v. Hathcock, Economic Development Takings, and the Future of Public Use,2004 MICH. ST. L. REV. 1005. The new Michigan law does, however, go beyond Hathcockin limiting blight condemnations that might not have been prevented by the court decision. See id. at 1033-39.
79. See, for example, infraPart II.A.2 for a discussion of the underestimation of the number of takings in Minnesota.
80. See supratbl.5.
81. See UTAH CODE ANN. § 17B-4-202 (2004) (current version at UTAH CODE ANN. § 17C-1-202 (2006)); see alsoHenry Lamb, Utah Bans Eminent Domain Use by Redevelopment Agencies,8 ENV'T & CLIMATE NEWS, June 2005, at 1 (describing the politics behind the Utah law). In March 2006, Utah partially rescinded its ban on blight condemnations. See UTAH CODE ANN. § 17C-2-503 (amended 2007).
82. Berman v. Parker, 348 U.S. 26, 32 (1954).
83. Id.
84. In reW. 41st St. Realty v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121, 125-26 (N.Y. App. Div. 2002).
85. City of Las Vegas Downtown Redev. Agency v. Pappas, 76 P.3d 1, 12-15 (Nev. 2003).
86. See generallyHudson Hayes Luce, The Meaning of Blight: A Survey of Statutory and Case Law,35 REAL PROP. PROB. & TR. J. 389, 394-96 (2000) (describing definitions of blight used in various states). This article is slightlyout-of-date because it does not account for the abolition of blight condemnations by Florida, New Mexico, and Utah, as well as the tightening of the definition of blight by other states in the aftermath of Kelo. See infranotes 175-178 and accompanying text for a discussion of the relevant laws; see alsoColin Gordon, Blighting the Way: Urban Renewal, Economic Development, and the Elusive Definition of Blight,31 FORDHAM URB. L.J. 305, 305-07 (2004) (describing very broad use of blight designations to facilitate condemnation).
87. See Gordon, supranote 86, at 320-23; Luce, supranote 86, at 397-400.
88. ALASKA STAT. § 09.55.240(a)(2) (2008) (exempting preexisting public uses declared in state law from a ban on economic development takings); Id.§ 18.55.950(2) ("'[B]lighted area' means an area, other than a slum area, that by reason of the predominance of defective or inadequate street layout, faulty lot layout in relation to size, adequacy, accessibility, or usefulness, unsanitary or unsafe conditions, deterioration of site or improvements, tax or special assessment delinquency exceeding the fair value of the land, improper subdivision or obsolete platting, or the existence of conditions that endanger life or property by fire and other causes, or any combination of these factors, substantially impairs or arrests the sound growth of the municipality, retards the provision of housing accommodations, or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare in its condition and use.").
89. COLO. REV. STAT. § 31-25-103(2) (2008) (defining "blight" to include any condition that "substantially impairs or arrests the sound growth of the municipality, retards the provision of housing accommodations, or constitutes an economic or social liability, and is a menace to the public health, safety, morals, or welfare"); Id.§ 38-l-101(2)(b) (allowing condemnation for the "eradication of blight").
90. MO. REV. STAT. § 100.310.2 (2008) (defining "blighted area" as "an area which, by reason of the predominance of defective or inadequate street layout, insanitary or unsafe conditions, deterioration of site improvements, improper subdivision or obsolete platting, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, retards the provision of housing accommodations or constitutes an economic or social liability or a menace to the public health, safety, morals or welfare"); Id.§ 353.020.2 (defining "blighted area" as "that portion of the city ⋯ that by reason of age, obsolescence, inadequate or outmoded design or physical deterioration have become economic and social liabilities, and that such conditions are conducive to ill health, transmission of disease, crime or inability to pay reasonable taxes"); id.§ 523.271.2 (exempting blight condemnations from ban on "economic development" takings), A recent Missouri Supreme Court decision has construed section 353.020 as requiring separate proof of "social liability" that goes beyond merely showing the existence of an "economic liability," in the sense of an obstacle to future growth and reduction of tax revenue. See Centene Plaza Redev. Corp. v. Mint Prop., 225 S.W.3d 431,433 (Mo. 2007). The decision notes, however, that proof of the existence of "social liability" might be demonstrated by providing evidence "concerning the public health, safety, and welfare," which in this case was totally absent in the record. Id.at 433-35. In any event, Missouri local governments also have the power to condemn property based on the definition of blight in another statute that defines the concept as requiring proof of the existence of either an "economic" or a "social liability." See State ex rel.Atkinson v. Planned Indus. Expansion Auth., 517 S.W.2d 36, 41 (Mo. 1975) (noting that industrial development projects undertaken in accordance with this section include the power to acquire property through the use of eminent domain).
91. MONT. CODE. ANN. § 7-15-4206(2) (2007) ('"Blighted area' means an area that is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime, that substantially impairs or arrests the sound growth of the city or its environs, that retards the provision of housing accommodations, or that constitutes an economic or social liability or is detrimental or constitutes a menace to the public health, safety, welfare, and morals in its present condition and use by reason of: (a) the substantial physical dilapidation, deterioration, age obsolescence, or defective construction, material, and arrangement of buildings or improvements, whether residential or nonresidential."); id.§ 70-30-102 (banning economic development condemnations, but retaining most of the broad definition of blight outlined in section 7-15-4206(2)(a)).
92. NEB. REV. STAT. § 18-2103 (2007) (defining blight as any area in a condition that "substantially impairs or arrests the sound growth of the community, retards the provision of housing accommodations, or constitutes an economic or social liability" and has "deteriorating" structures,); id.§ 76-701 (exempting "blight" condemnations from ban on economic development takings).
93. N.C. GEN. STAT. § 160A-503(2) (2007) ('"Blighted area' shall mean an area in which there is a predominance of buildings or improvements (or which is predominantly residential in character), and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, unsanitary or unsafe conditions, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs the sound growth of the community, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals or welfare."); id.§ 160A-515 (exempting blight condemnations from restrictions on economic development takings).
94. OHIO REV. CODE ANN. §§ 1.08, 303.26(E) (LexisNexis 2008) ('"Blighted area' and 'slum' mean an area in which at least seventy per cent of the parcels are blighted parcels and those blighted parcels substantially impair or arrest the sound growth of the state or a political subdivision of the state, retard the provision of housing accommodations, constitute an economic or social liability, or are a menace to the public health, safety, morals, or welfare ⋯ ."). To qualify as a "blighted parcel," a parcel must meet at least two of seventeen vague and general conditions such as "deterioration," "age and obsolescence," "faulty lot layout," being "located in an area of defective or inadequate street layout," and "overcrowding of buildings." Id.§ 108.(B)(2)(a-p). Virtually any area is likely to meet two or more of these criteria. See alsoS.B. 167, § 2(A), 126th Gen. Assem. (Ohio 2005) (exempting blight condemnations from temporary moratorium on economic development takings).
95. TEX. GOV'T CODE ANN. § 2206.001(b)(3) (Vernon 2008) (exempting condemnations "to eliminate an existing affirmative harm on society from slum or blighted areas" from the ban on economic development takings); TEX. LOC. GOV'T CODE ANN. § 374.003(3) (Vemon 2005) ('"Blighted area' means an area that is not a slum area, but that, because of deteriorating buildings, structures, or other improvements; defective or inadequate streets, street layout, or accessibility; unsanitary conditions; or other hazardous conditions, adversely affects the public health, safety, morals, or welfare ⋯ or results in an economic or social liability to the municipality.").
96. VT. STAT. ANN. tit. 12, § 1040 (2008) (exempting blight condemnations from ban on economic development takings); Id.tit. 24, § 3201(3) (defining "blighted area" to include any planning or layout condition that "substantially impairs or arrests the sound growth of a municipality, retards the provision of housing accommodations or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare").
97. W. VA. CODE ANN. § 16-18-3 (LexisNexis 2006) (defining "blighted area" as an area which, due to a number of factors such as deterioration or inadequate street layout, "substantially impairs or arrests the sound growth of the community, retards the provision of housing accommodations or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare in its present condition and use"); Id.§ 16-18-6 (exempting blight condemnation from ban on redevelopment takings).
98. See supranotes 88-97.
99. Panama City Beach Cmty. Redev. Agency v. State, 831 So. 2d 662, 668-69 (Fla. 2002).
100. City of Phoenix v. Superior Ct, 671 P.2d 387, 391-93 (Ariz. 1983).
101. As far as I am aware, there are no unpublished decisions with such a holding.
102. S.B. 3086, 94th Gen. Assem., § 1-1-5 (111. 2006).
103. 65 ILL. COMP. STAT. 5/11-74.4-3(a)(l) (2006).
104. Id.
105. The statute does require that at least five of the listed factors be present. Id.However, this is little obstacle to obtaining a blight declaration because so many are conditions that exist in almost any area.
106. NEV. REV. STAT. § 37.010(l)(q) (2007).
107. Id.
108. Id §279.388.
109. Id.
110. City of Las Vegas Downtown Redev. Agency v. Pappas, 76 P.3d 1, 12-15 (Nev. 2003). However, it should be noted that the 2003 version of section 279.388 required the presence of only one of the eleven factors to allow an area to be declared "blighted." Id.at 6 n.8.
111. See infraPart II.A.3 for a discussion of Nevada's referendum initiative.
112. See KY. REV. STAT. ANN. § 99.340(2) (LexisNexis 2004).
113. Id.§ 99.370(6).
114. Id §99.340.
115. ME. REV. STAT. ANN. tit. 30-A, § 5101 (1964); see also id.tit. 1, § 816 (2008) (exempting blight condemnations from ban on economic development condemnations).
116. ME. REV. STAT. ANN. tit. 30-A, § 5101 (1964).
117. Id.§5102.
118. Id.§5201.
119. TENN. CODE ANN. § 13-20-201(a) (2008).
120. Id.
121. The best-known case is Poletown Neighborhood Council v. City of Detroit,304 N.W.2d 455 (Mich. 1981), overruled by County of Wayne v. Hathcock,684 N.W.2d 765 (Mich. 2004), where some 4000 were uprooted in order to provide a site for a new General Motors factory in Detroit that was expected to create 6000 new jobs. Id.n.15 (Fitzgerald, J., dissenting). For discussion, see generally Somin, supranote 78.
122. R.I. GEN. LAWS § 42-64.12-1 (Supp. 2008).
123. Id.§ 42-64.12-7.
124. Id.§ 45-31-6 (1999).
125. Id.§ 45-31-8. An "arrested blighted area" is defined as: [A]ny area which, by reason of the existence of physical conditions including, but not by way of limitation, the existence of unsuitable soil conditions, the existence of dumping or other insanitary or unsafe conditions, the existence of ledge or rock, the necessity of unduly expensive excavation, fill or grading, or the necessity of undertaking unduly expensive measures for the drainage of the area or for the prevention of flooding or for making the area appropriate for sound development, or by reason of obsolete, inappropriate, or otherwise faulty platting or subdivision, deterioration of site improvements, inadequacy of utilities, diversity of ownership of plots, or tax delinquencies, or by reason of any combination of any of the foregoing conditions, is unduly costly to develop soundly through the ordinary operations of private enterprise and impairs the sound growth of the community.
126. Id.§ 45-31-8(2). A "deteriorated blighted area" is: [A]ny area in which there exist buildings or improvements, either used or intended to be used for living, commercial, industrial, or other purposes, or any combination of these uses, which by reason of: (i) Dilapidation, deterioration, age, or obsolescence; (ii) Inadequate provision for ventilation, light, sanitation, open spaces, and recreation facilities; (iii) High density of population and overcrowding, (iv) Defective design or unsanitary or unsafe character or conditions of physical construction; (v) Defective or inadequate street and lot layout; and (vi) Mixed character, shifting, or deterioration of uses to which they are put, or any combination of these factors and characteristics, are conducive to the further deterioration and decline of the area to the point where it may become a slum blighted area as defined in subdivision (18), and are detrimental to the public health, safety, morals, and welfare of the inhabitants of the community and of the state generally. A deteriorated blighted area need not be restricted to, or consist entirely of, lands, buildings, or improvements which of themselves are detrimental or inimical to the public health, safety, morals, or welfare, but may consist of an area in which these conditions exist and injuriously affect the entire area.
127. Id.§ 45-31-8(6). Finally, a "slum blighted area" is: [A]ny area in which there is a predominance of buildings or improvements, either used or intended to be used for living, commercial, industrial, or other purposes, or any combination of these uses, which by reason of: (i) dilapidation, deterioration, age, or obsolescence; (ii) inadequate provision for ventilation, light, sanitation, open spaces, and recreation facilities; (iii) high density of population and overcrowding; (iv) defective design or unsanitary or unsafe character or condition of physical construction; (v) defective or inadequate street and lot layout; and (vi) mixed character or shifting of uses to which they are put, or any combination of these factors and characteristics, are conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; injuriously affect the entire area and constitute a menace to the public health, safety, morals, and welfare of the inhabitants of the community and of the state generally. A slum blighted area need not be restricted to, or consist entirely of, lands, buildings, or improvements which of themselves are detrimental or inimical to the public health, safety, morals, or welfare, but may consist of an area in which these conditions predominate and injuriously affect the entire area.
128. Id.§ 45-31-8(18).
129. Id.§ 42-64.12-6(d) (Supp. 2008) (noting the power to condemn property in order to "[e]liminat[e] an identifiable public harm and/or correct[] conditions adversely affecting public health, safety, morals, or welfare, including, but not limited to, the elimination and prevention of blighted and substandard areas, as defined by chapter 45-31").
130. Id.
131. IOWA CODE § 6A.22 (2008).
132. Id.(emphasis added).
133. Id.
134. WIS. STAT. § 32.03(6)(a) (2007-08).
135. Id.
136. The analysis of the Delaware, Ohio, and Texas laws is in large part derived from Somin, Grasping Hand, supranote 15, at 245-52.
137. See S.53, 1206, 1210, 1650, 1809, 2006 Leg. (Cal. 2006).
138. See S.53, 1210, 1650, 1809, 2006 Leg. (Cal. 2006).
139. See Timothy Sandefur, PLF on Eminent Domain, Gov. Schwarzenegger Signs Mealy-Mouthed Property Rights Protection,Sept. 29, 2006, http://eminentdomain.typepad.com/my-weblog/2006/09/gov-schwarzeneg.html.
140. S.1206 § 2(b)(2) (requiring that blighted areas meet physical and eco-nomic conditions defined in section 3).
141. Id. §3.
142. Id.
143. CONN. GEN. STAT. § 8-i93(b)(l) (2009).
144. See generally id.§ 8-124 (allowing use of eminent domain by redevelopment agencies); id.§ 8-125(2) (stating that "redevelopment areas" can be declared in any "area within the state that is deteriorated, deteriorating, substandard or detrimental to the safety, health, morals or welfare of the community"). The concept of "deteriorating" area is defined extremely broadly. Id.§ 8-125(7) (providing a list of numerous conditions only one of which must be met for an area to qualify as "deteriorating." Even this list is not exhaustive, since the statute says that possible conditions qualifying an area as "deteriorating" are "not limited" to those enumerated). See alsoKelo v. City of New London, 545 U.S. 469, 475 (2005) (noting that Connecticut law permitted condemnation of the New London properties despite the fact that they were not "blighted" and only because they were located in the development area.
145. See CONN. GEN. STAT. §§ 8-125 to -133 (2009) (outlining procedures for condemning property in "redevelopment areas").
146. Just as this article went to press, the Delaware state legislature enacted a new reform law that seems to provide much stronger protection for property owners against blight and economic development takings. See Del. Sen. Bill 7 (codified at DEL. CODE ANN. tit. 29, § 9501A) (signed into law Apr. 9, 2009), available athttp://legis. delaware.gov/LIS/LISl45.NSF/vwLegislation/SB+7?Opendocument. Unfortunately time constraints make it impossible to analyze the new law here.
147. DEL. CODE ANN. tit. 29 § 9505(15) (Supp. 2008).
148. See Kelo,545 U.S. at 472.
149. Id.at 477 (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 241, 245 (1984)).
150. DEL. CODE. ANN. tit. 39 § 9505(15).
151. See MD. CODE ANN. REAL PROP. § 12-105.1(a) (West 2007).
152. See MD. CONST, art. Ill, § 61. The Maryland Constitution allows the use of eminent domain in "slum or blighted areas" and defines these terms as follows:The term "slum area" shall mean any area where dwellings predominate which, by reason of depreciation, overcrowding, faulty arrangement or design, lack of ventilation, light or sanitary facilities, or any combination of these factors, are detrimental to the public safety, health or morals. The term "blighted area" shall mean an area in which a majority of buildings have declined in productivity by reason of obsolescence, depreciation or other causes to an extent they no longer justify fundamental repairs and adequate maintenance.
153. An Act to Establish a Moratorium on Eminent Domain, S.B. 167 § 2, Oh. Gen. Assem. (Oh. 2005) (codified at OHIO REV. CODE ANN. § 1426 (Lexis-Nexis 2005 Bulletin #5)).
154. Id.
155. Id.
156. See OHIO REV. CODE ANN. § 303.26(E) (LexisNexis 2003) (defining blight to include deteriorating structures or where the site "substantially impairs or arrests the sound growth of a county, retards the provision of housing accommodations, or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare").
157. An Act to Establish a Moratorium on Eminent Domain, S.B. 167 § 3, Oh. Gen. Assem. (Oh. 2005) (codified at OHIO REV. CODE ANN. 1426 (LexisNexis 2005 Bulletin #5)).
158. For a detailed analysis of the Commission's composition, see Somin, Grasping Hand, supranote 15, at 249.
159. See FINAL REPORT OF THE TASK FORCE TO STUDY EMINENT DOMAIN 12, Aug. 1, 2006 (on file with author). The new definition of blight advocated by the Commission would allow the designation of an area as "blighted" so long as it was characterized by any two of seventeen different conditions. Id.Attachment 2. Many of these are vaguely defined and could apply to almost any property. For example, one of the seventeen conditions is "[fjaulty lot layout in relation to size, adequacy, accessibility, or usefulness." Id.Others include "[e]xcessive dwelling unit density" (without defining what constitutes "excessive"), and "[a]ge and obsolescence" (also undefined). Id.Like the old definition, the new one would still permit virtually any property to be designated as "blighted." For the old definition, see supranote 153.
160. See OHIO REV. CODE ANN. §§1.08, 303.26 (LexisNexis 2008).
161. See supranote 156.
162. TEX. GOV'T CODE ANN. § 2206.001(b) (Vernon 2008).
163. Id.
164. Id.
165. Kelo v. City of New London, 545 U.S. 469, 478 (2005).
166. TEX. GOV'T CODE ANN. § 2206.001(b)(3) (Vernons 2008).
167. TEX. LOC. GOV'T CODE ANN. § 373.005(b)(l)(A) (Vernons 2005).
168. Id.
169. § 2206.001(e).
170. See id.§ 2206.001(b)(3) (referencing other Texas laws allowing takings for community development or improving blighted areas). These statutes are listed as the only broad exceptions to the bill's ban on takings "for economic development purposes." Id.§ 2206.001(b).
171. § 373.005(b)(l)(A).
172. Sandefur is more optimistic about these two provisions, calling them "significant improvements." Sandefur, supranote 14, at 734. He does not, however, consider the possibility that they can be circumvented by means of the "community development" exception.
173. See Act of Apr. 17, 2007, ch. 68, 2007 Wash. Sess. Laws 268 (codified in scattered sections of REV. CODE WASH, ch.8 (2007)).
174. See Cent. Puget Sound Reg'l Transp. Auth. v. Miller, 128 P.3d 588 (Wash. 2006). The state's Senate Committee on the Judiciary cited this deci-sion as the reason for passing the new Washington law. See S. REPORT, Substitute H.B. 1458, 60th Leg. (Wash. 2007), available athttp://www.leg.wa.gov/ pub/billinfo/2007-08/Pdf/Bill%20Reports/Senate/ 1458-S.SBR.pdf.
175. If I classified Washington state as having passed either an effective or ineffective reform law, that would not alter the political ignorance findings discussed in Part III because there are too few Washington respondents in the sample to make a statistically significant difference.
176. See Hogue v. Port of Seattle, 341 P.2d 171, 187 (Wash. 1959) (denying condemnation of residential property so that an agency could "devote it to what it considered] a higher and better economic use").
177. See WASH. REV. CODE § 35.80A.010 (2008) (defining blight narrowly for purposes of condemnation).
178. See Act of May 11, 2006, ch. 2006-11, 2006 Fla. Laws 214 (codified in scattered sections of FLA. STAT.); Act of Apr. 3, 2007, 2007 N.M. Laws 3873, ch. 330 (codified in scattered sections of N.M. STAT.). The New Mexico bill does still permit the condemnation of property that is characterized by "obsolete or impractical planning and platting" and "(a) was platted prior to 1971; (b) has remained vacant and unimproved; and (c) threatens the health, safety and welfare of persons or property due to erosion, flooding and inadequate drainage." Act of Apr. 3, 2007, 2007 N.M. Laws 3873, ch. 330, § 3-18-10(B)(3) (codified in scattered sections of N.M. STAT.).
179. See supranote 81. However, Utah partially rescinded its ban on blight condemnations in a more recent bill. See Act of Mar. 21, 2007, ch. 379, 2007 Utah Laws 2326 (codified in scattered sections of UTAH CODE ANN. § 17C) (permitting blight condemnations if approved by a supermajority of property owners in the affected area).
180. A report prepared by the Institute for Justice (IJ) does not list a single private-to-private condemnation in Utah during the entire five-year period from 1998 to 2002. BERLINER, supranote 66, at 196. The IJ Report concluded (two years before the enactment of the 2005 reform law) that "Utah has done fairly well in avoiding the use of eminent domain for private parties." Id.New Mexico did not have any private-to-private condemnations during the 1998-2002 period. Id.at 143.
181. Id at 52-58.
182. S.D. CODIFIED LAWS § 11-7-22.1(1) (Supp. 2008).
183. For arguments that this is a major problem with economic development and blight condemnations, see Somin, Grasping Hand, supranote 15, at 190-205, 264-71.
184. See Act of May 18, 2006, ch. 192, 2006 Kan. Sess. Laws 1345, §§ 1-2 (codified at KAN. STAT. ANN. §§ 26-501a, 26-501b (Supp. 2008)).
185. KAN. STAT. ANN. § 26-501a(b) (Supp. 2008).
186. Id.§ 26-501b(e).
187. See ALA. CODE § 24-2-2(c) (2008) Qimiting definition of blight to a relatively narrow range of situations, such as property that is "unfit for human habitation," poses a public health risk, or has major tax delinquencies); id.§ ll-47-170(b) (forbidding condemnations that "transfer" nonblighted property to private parties).
188. See GEO. CODE ANN. § 22-1-1(1), (10) (Supp. 2008) (forbidding economic development takings, and defining blight to include primarily risks to health, the environment, and safety, while excluding "esthetic" considerations).
189. See IDAHO CODE ANN. § 7-70lA(2)(b) (Supp. 2008) (forbidding condemnations "[f]or the purpose of promoting or effectuating economic development" and for the acquisition of nonblighted property, and defining blight as a condition that poses physical risks to the occupants of a building, spreads disease or crime, or poses "an actual risk of harm" to public safety, health, morals, or welfare). The burden of proof for showing that blight exists is on the government. See id.Nonetheless, there is some room for potential slippage in the Idaho law because of the possibility that property could be condemned merely for posing an "actual risk of harm" to public "morals" or "welfare," concepts that could be defined broadly enough to include most economic development takings. Id.§ 7-701A(2)(b)(ii).
190. See IND. CODE § 32-24-4.5-7 (Supp. 2008) (forbidding most private-to-private condemnations and defining blight as an area that "constitutes a public nuisance," is unfit for habitation, does not meet the building code, is a fire hazard, or is "otherwise dangerous").
191. See MICH. COMP. LAWS § 213.23(1), (3), (8) (Supp. 2008) (banning condemnations for "general economic development" and limiting the definition of "blight" to property that is a "public nuisance," an "attractive nuisance," poses a threat to public safety, such as a fire hazard, or is abandoned). The law does have a potential loophole insofar as it permits the condemnation of property as "blighted" if it "is not maintained in accordance with applicable local housing or property maintenance codes or ordinances." Id.§ 213.23(8)(g). This could allow local governments to manipulate the content of local property codes in such a way as to make it impossible for all or most property owners to fully comply, thus potentially opening the door to sweeping condemnation authority for economic development purposes. My tentative judgment is that this loophole is not broad enough to completely negate the impact of the new statute.
192. See N.H. REV. STAT. ANN. § 205:3-b (Supp. 2008) (defining public use as "exclusively" limited to government ownership, public utilities and common carriers, and blight-like condemnations needed to "remove structures beyond repair, public nuisances, structures unfit for human habitation or use, and abandoned property when such structures or property constitute a menace to health and safety").
193. See VA. CODE ANN. § 1-219.1 (2008) (permitting condemnation of private property only if "(i) the property is taken for the possession, ownership, occupation, and enjoyment of property by the public or a public corporation; (ii) the property is taken for construction, maintenance, or operation of public facilities by public corporations or by private entities provided that there is a written agreement with a public corporation providing for use of the facility by the public; (iii) the property is taken for the creation or functioning of any pub-lic service corporation, public service company, or railroad; (iv) the property is taken for the provision of any authorized utility service by a government utility corporation; (v) the property is taken for the elimination of blight provided that the property itself is a blighted property; or (vi) the property taken is in a redevelopment or conservation area and is abandoned or the acquisition is needed to clear title where one of the owners agrees to such acquisition or the acquisition is by agreement of all the owners"). The new law also narrows the definition of "blight" to include only "property that endangers the public health or safety in its condition at the time of the filing of the petition for condemnation and is (i) a public nuisance or (ii) an individual commercial, industrial, or residential structure or improvement that is beyond repair or unfit for human occupancy or use." Id.§ 1-219.1(B).
194. See WYO. STAT. ANN. § l-26-801(c) (2007) ("As used in and for purposes of this section only, 'public purpose' means the possession, occupation and enjoyment of the land by a public entity. 'Public purpose' shall not include the taking of private property by a public entity for the purpose of transferring the property to another private individual or private entity except in the case of condemnation for the purpose of protecting the public health and safety⋯ ."). Technically, this law seems to forbid blight condemnations. However, the provision permitting condemnations for the purpose of protecting "public health and safety" is functionally equivalent to allowing condemnation under an extremely narrow definition of blight.
195. 26 PA CONS. STAT. § 204(a) (Supp. 2008).
196. See id.§ 205(b), (c).
197. See id.§ 203(4) (excluding areas designated as blighted within "a city of the first or second class," which under law turns out to be Pittsburgh and Philadelphia).
198. See BERLINER, supranote 66, at 173, 179-81 (describing major condemnation projects in the two cities).
199. See § 203(4).
200. See MINN. STAT. § 117.025 (2008) (defining "public use" to mean exclusively direct public use, or mitigation of blight, or a public nuisance, and not"the public benefits of economic development," and defining a "blighted area" as an urban area where more than half of the buildings are "structurally substandard" in the sense of having two or more building code violations).
201. Id.§ 117.011 (2008) (setting out exceptions for tax increment financing districts), repealed byMINN. STAT. § 117.012 (West 2009 Electronic Update).
202. See LEAGUE OF MINNESOTA CITIES, RESEARCH ON CITIES' USE OPEMINENT DOMAIN (2005) (on file with author); see alsoEric Willette, LMC Study Finds Cities Use Eminent Domain Judiciously, LEAGUE OF MINN. CITIES BULLETIN, NOV. 30, 2005, at 1. The LMC study claims that these cities use eminent domain only rarely and judiciously. Id.However, it also notes that the thirty-four cities engaged in an average of twelve economic development takings per year, many of them involving "multiple parcels" of land. Id.This yields a total of over 400 economic development takings per year in the state of Minnesota, a fairly large number for a state with a population of only 5.1 million. See infratbl.A3. If each of these takings impacted about twelve people (a conservative estimate in view of the fact that many involved multiple parcels), then about 5000 Minnesotans lose property to economic development takings per year, for a total of 35,000 during the seven year period studied by the LMC. Between 1999 and 2005, some seven tenths of a percent of the Minnesota population may have lost property or been displaced by economic development condemnations.
203. See MINN. STAT. § 117.011 (2008).
204. See MINN. STAT. § 117.012 (West 2009 Electronic Update) (repealing exemptions in the 2006 law).
205. See BERLINER, supranote 66, at 10-11 (noting that Alabama "has mostly refrained from abusing the power of eminent domain in recent years" and had only one documented private-to-private condemnation in 2002); id.at 59 (noting that Georgia is "one of a handful of states with no reported instances" of such condemnations between 1998 and 2002); id.at 189 (same as to South Dakota).
206. For a complete list and other details, see Nat'l Conference of State Legislatures, Property Rights Issues on the 2006 Ballot,Nov. 12, 2006, http://www.ncsl.org/statevote/prop-rights-06.htm (last visitedMay 17, 2009) [hereinafter NCSL].
207. Id.Only two post-Keloballot initiatives were defeated-one in Idaho and one in California. Id.Both lost primarily because they were tied to controversial measures limiting "regulatory takings." See, e.g.,Timothy Sandefur, The California Crack-up, LIBERTY, Feb. 2007, available athttp://liberty unbound.com/archive/2007-02/sandefur-california.html (attributing the defeat of California's Proposition 90 primarily to the shortcomings of the regulatory takings element of the proposal and strategic errors of its supporters). No stand-alone post-ifeZo public-use referendum initiative was defeated anywhere in the country. See NCSL, supranote 203.
208. See Ga. Amendment 1 (enacted on Nov. 7, 2006 and amending GA. CONST, art. IX, § 2); N.H. Question 1 (enacted on Nov. 7, 2006 and amending N.H. CONST, art. 12-a).
209. S.C. Amendment 5 (amending S.C. CONST, art. I, § 13).
210. La. Amendment 5 (amending LA. CONST, art. I, § 4(B), art. VI, § 21(A) and adding art. VI, § 21(D)).
211. SeeAriz. Proposition 207 (enacted Nov. 7, 2006) (codified at ARIZ. REV. STAT. ANN. §§ 12-1131 to -1138) (forbidding condemnations for "economic development" and limiting blight-like condemnations to cases where there is "a direct threat to public health or safety caused by the property in its current condition").
212. La. Amendment 5 (enacted Sept. 30, 2006) (amending LA. CONST, art. I, § 4(B), art. VI, § 21(A) and adding art. VI, § 21(D)) (forbidding condemnations for "economic development" and tax revenue purposes, and confining blight condemnations to cases where there is a threat to public health or safety).
213. Or. Measure 39 (enacted Nov. 7, 2006) (codified at OR. REV. STAT. § 35.015) (forbidding most private-to-private condemnations and limiting blight-like condemnations to cases where they are needed to eliminate dangers to public health or safety).
214. See Nev. Ballot Question 2 (enacted Nov. 7, 2006, reenacted on Nov. 4 2008) (amending NEV. CONST, art. I, § 22) (forbidding the "direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party"); N.D. Measure 2 (amending N.D. CONST, art. I, § 16) (mandating that "public use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health. Private property shall not be taken for the use of, or ownership by, any private individual or entity, unless that property is necessary for conducting a common carrier or utility business").
215. See Nev. Ballot Question 2 (enacted Nov. 7, 2006, reenacted on Nov. 4, 2008) (amending NEV. CONST, art. I, § 22).
216. See supranotes 177-178 and accompanying text.
217. Fla. Amendment 8 (enacted Nov. 7, 2006) (amending FLA. CONST, art. X, § 6).
218. Ga. Amendment 1 (enacted Nov. 7, 2006) (amending GA. CONST, art. IX, § 2).
219. N.H. Question 1 (enacted Nov. 7, 2006) (amending N.H. CONST, art. 12-a).
220. Id.
221. See the discussion of the similar flaw in the wording of President Bush's 2006 executive order on Keloin infraPart II.B.3.
222. S.C. Amendment 5 (enacted Nov. 7, 2006) (amending S.C. CONST, art. I, § 13(A)).
223. See Karesh v. City Council of Charleston, 247 S.E.2d 342, 345 (S.C. 1978) (striking down taking justified only by economic development).
224. S.C. Amendment 5 (amending S.C. CONST, art. I, § 13(B)).
225. See Cal. Proposition 99 (enacted June 3, 2008) (amending CAL. CONST, art. I, § 19).
226. See Ilya Somin, Prop. 99's False Promise of Reform,L.A. TIMES, May 19, 2008, at A15. Proposition 99 includes a provision that would negate any conflicting eminent domain reform passed the same day, so long as Proposition 99 got more votes than its competitor. Cal. Proposition 99, § 9 (enacted on June 3, 2008). See alsoSamantha Young, Voters Reject Prop. 98, Endorse Prop. 99,LONG BEACH PRESS-TELEGRAM, June 4, 2008 (noting that the California League of Cities placed Proposition 99 on the ballot and spent eleven million dollars on promoting it and working to defeat Proposition 98).
227. See Cal. Proposition 99 § 2, (enacted June 3, 2008) (amending CAL. CONST, art. I, § 19(b), (e)(3)) (exempting from protection owner-occupied residences where the owner has resided for less than one year).
228. Somin, supranote 223.
229. See id.
230. See Cal. Proposition 99 (enacted June 3, 2008) (amending CAL. CONST, art. I, § 19(e)(5)) (exempting takings of homes that are "incidental" to a variety of "public work[s] or improvement^]"). The text of this section reads: "Public work or improvement" means facilities or infrastructure for the delivery of public services such as education, police, fire protection, parks, recreation, emergency medical, public health, libraries, flood protection, streets or highways, public transit, railroad, airports and seaports; utility, common carrier or other similar projects such as energy-related, communication-related, water-related and wastewa-ter-related facilities or infrastructure; projects identified by a State or local government for recovery from natural disasters; and private uses incidental to, or necessary for, the public work or improvement.
231. Kelo v. City of New London, 545 U.S. 469, 478-85 (2005).
232. Id.at 478 (stating that the "mere pretext" of a public benefit is not enough to justify a taking if the "actual purpose was to bestow a private benefit").
233. See Somin, Grasping Hand, supranote 15, at 235-40.
234. Mich. Ballot Proposal 06-04 (enacted Nov. 7, 2006) (amending MICH. CONST, art. X, § 2).
235. SeeCounty of Wayne v. Hathcock, 684 N.W.2d 765, 779-86 (Mich. 2004). The status of blight condemnations under Hathcockis analyzed in So-min, supranote 78.
236. See supranote 188.
237. The four are Arizona, Nevada, North Dakota, and Oregon. See NCSL,supranote 203.
238. See NCSL, supranote 203.
239. The three were Georgia, New Hampshire, and South Carolina. Id.
240. Id.
241. H.R. 4128,109th Cong. (2005) (enacted).
242. See Scott Bullock, The Specter of Condemnation,WALL ST. J., June 24, 2006 (explaining how the PRPA was held up by Senator Arlen Specter, then Chairman of the Senate Judiciary Committee).
243. The PRPA has been renamed as the "Strengthening the Ownership of Private Property Act of 2007." Text available at http://thomas.loc.gov/ home/ gpoxmlcllO/h926-ih.xml (last visited Mar. 13, 2009). On June 5, 2007, the legislation was referred to the House Subcommittee on Healthy Families and Communities. No further action has been taken as of this writing. See LIBRARY OF CONGRESS-THOMAS, H.R. 926, http://thomas.loc.gov/cgi-bin/bdquery/z?dll0:HR00926:@L&summ2=m& (last visited Mar. 13, 2009).
244. H.R. 4128, 109th Cong. § 2(a) (2005).
245. Id. §2(b).
246. Id.§ 8(1). The Act goes on to establish several exemptions, but these are relatively narrow. See id.§ 8(1)(A)-(G) (exempting condemnations that transfer property to public ownership and several other traditional public uses).
247. Id. §2(b).
248. Id. §8(2).
249. Id.
250. ROBERT MELTZ, CONG. RESEARCH SERV., CONDEMNATION OF PRIVATE PROPERTY FOR ECONOMIC DEVELOPMENT: LEGAL COMMENTS ON THE HOUSE-PASSED BILL (H.R. 4128) AND BOND AMENDMENT 4 (2005). The report bases this conclusion on section 5(a)(2) of the PRPA, which requires the Attorney General to compile a list of economic development grants, but does not explicitly state that the list should be used as a guide for determining which funds to cut off in the event of PRPA violations. Id.at 4 & n.7 (citing H.R. 4128, 109th Cong. § 5(a)(2) (2005)). Section 11 of the Act does require that the Act "be construed in favor of a broad protection of private property rights." H.R. 4128, § 11. However, it is unclear whether this requirement will bind the Attorney General in his determination of the range of programs covered by the Act's funding cutoff.
251. BUDGET OF THE UNITED STATES GOVERNMENT 125 tbl.8-4, 126, 130 (F.Y. 2005) (estimated figures for the 2005 fiscal year).
252. Id.at 125 tbl.8-4.
253. H.R. 4128, § 2(c).
254. This may not be an unlikely occurrence, given that many property owners targeted for condemnation are likely to be poor and legally unsophisticated. Somin, Grasping Hand, supranote 15, at 254 n.373.
255. Act of Nov. 30, 2005, Pub. L. No. 109-115, § 726, 119 Stat. 2396, 2494-95 (2005).
256. Id.at 2495.
257. Id.
258. See Kelo v. City of New London, 545 U.S. 469, 488 (2005) (stating that courts should not "second-guess [a] City's considered judgments about the efficacy of its development plan").
259. § 726, 119 Stat. at 2495, reprinted inMELTZ, supranote 247, at 12 (replacing the language "an immediate threat to public health and safety" with "blight").
260. Id.
261. Id.
262. Exec. Order No. 13,406, 71 Fed. Reg. 36,973 (June 23, 2006).
263. Id.
264. Id.
265. See Somin, Grasping Hand, supranote 15, at 246.
266. See, e.g.,Kelo y. City of New London, 545 U.S. 469, 484-85 (2005); id.at 501 (O'Connor, J., dissenting).
267. Kelo v. City of New London, 843 A.2d 500, 535 (Conn. 2004), aff'd,545 U.S. 469 (2005).
268. Id.at 595-96.
269. Kelo,545 U.S. at 473-75.
270. See Somin, Grasping Hand, supranote 15, at 235-40.
271. See infratbl.6.
272. See supraPart II.A.3.
273. See, e.g.,Sandefur, supranote 14, at 769-72 (arguing that interest-group opposition accounts for the failures of the Kelobacklash).
274. See supratext accompanying note 20.
275. For a more detailed discussion of the theory of rational ignorance, see Ilya Somin, Knowledge About Ignorance: New Directions in the Study of Political Information,18 CRITICAL REV. 255 (2006) (symposium on political knowledge); Somin, Political Ignorance, supranote 20.
276. See infratbl.6.
277. For the exact wording of the two questions involved, see infraapp. B.
278. 2007 SAINT INDEX, supranote 23, qstn. 9; see infraapp. B (question wording).
279. 2007 SAINT INDEX, supranote 23, qstn. 10; see infraapp. B (question wording).
280. Only 17% of respondents expressed any opinion at all about the effectiveness of Tpost-Keloreform in their states. 2007 SAINT INDEX, supranote 23, qstn. 10.
281. Question 10 on the Saint Index survey has four possible answers in addition to "don't know." See infraapp. B. However, as described in Appendix B, in each case I coded two different answers as "correct" for purposes of Table 6. Respondents living in states that had passed effective laws could get a "correct" answer by choosing either A or B, while those in states with ineffective reforms could pick either C or D.
282. For the classic survey result showing that many respondents will express opinions even about completely fictitious legislation invented by researchers rather than admit ignorance, see Stanley Payne's famous finding that 70% of respondents expressed opinions regarding the nonexistent "Metallic Metals Act." STANLEY PAYNE, THE ART OF ASKING QUESTIONS 18 (1951).
283. See MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS 157 (1996). But seeSomin, Political Ignorance, supranote 20, at 1327 (demonstrating only slight correlation between political knowledge and age when controlling for fifteen other variables).
284. See MARTIN P. WATTENBERG, IS VOTING FOR YOUNG PEOPLE? 79-91 (2007) (summarizing evidence indicating that the young have the lowest levels of political information of any age group).
285. 2007 SAINT INDEX, supranote 23, qstns. 9& 10; see infraapp. B (question wording). I counted as "correct" those respondents who both (1) knew whether or not their states had passed post-Keloeminent domain reform laws, and (2) correctly answered the question about whether or not those laws were effective. Respondents from the eight states that had not enacted any post-Kelolaws were counted as giving correct answers to both questions if they correctly answered the first question by stating that their states had not adopted any reforms. Totals have been rounded off to the nearest whole number. The State of Utah presented a difficult methodological dilemma because it had banned economic development takings prior to Kelo.In the results in Table 5, supra,it is coded as having "effective" reforms and respondents who gave that answer were credited with a "correct" response. Coding the Utah results the other way does not significantly alter the overall results because of the extremely low number of Utah respondents in the sample.
286. The results for Hispanics, Asians, and Native Americans may be unreliable because they are based on very small sample sizes of twenty-four, twelve, and twelve respondents respectively. 2007 SAINT INDEX, supranote 23.
287. Ilya Somin, When Ignorance Isn't Bliss: How Political Ignorance Threatens Democracy,Cato Institute Policy Analysis No. 525, Sept. 22, 2004, at6tbl.l.
288. 2007 SAINT INDEX, supranote 23.
289. See supranotes 91 (Montana), 94 (Ohio), 106 (Nevada), 142 (Connecticut), 148 (Maryland), 175 (New Mexico), 190 (Virginia), 191 (Wyoming).
290. 2007 SAINT INDEX, supranote 23.
291. Id.qstn. 9. Standard tests showed that the difference between the 26% and 20% figures is not statistically significant; the relevant data is available from the author.
292. Id.qstns. 9& 10.
293. See M. Kent Jennings, Political Knowledge Over Time and Across Generations,60 PUB. OPINION Q. 228, 243-45 (1996) (discussing relevant evidence on retention of political knowledge); Ilya Somin, Voter Knowledge and Constitutional Change: Assessing the New Deal Experience,45 WM. & MARY. L. REV. 595, 639-40 (2003) (same).
294. For a recent defense of the theory, see generally VINCENT L. HUTCH-INGS, PUBLIC OPINION AND DEMOCRATIC ACCOUNTABILITY (2003). For discussion and criticism of this theory, see Somin, Voter Ignorance, supranote 20, at 427-29.
295. 2007 SAINT INDEX, supranote 23.
296. See supraParti.
297. See 2006 SAINT INDEX, supranote 48; see alsoSomin, supranote 48, at 1940.
298. 2007 SAINT INDEX,supranote 23.
299. See, e.g.,Philip E. Converse, Popular Representation and the Distribution of Information, inINFORMATION AND DEMOCRATIC PROCESSES 369, 381-83 (John A. Ferejohn & James Kuklinski eds., 1990) (describing the "miracle of aggregation" theory); see alsoDONALD A. WlTTMAN, THE MYTH OF DEMOCRATIC FAILURE (1995).
300. 2007 SAINT INDEX, supranote 23.
301. Id.
302. See 2006 SAINT INDEX, supranote 48 (43% figure). The 1.3% figure is calculated by taking 10% of the 13% who could correctly identify the status of post-Keloreform in their state. 2007 SAINT INDEX, supranote 23.
303. See supranote 276 and accompanying text.
304. See, for example, ARTHUR LUPIA & MATHEW D. MCCUBBINS, THE DEMOCRATIC DILEMMA: CAN CITIZENS LEARN WHAT THEY NEED TO KNOW? 206-08 (1998), for the argument that reliance on opinion leaders can alleviate the problem of political ignorance.
305. See, e.g.,Ilya Somin, Book Note, Resolving the Democratic Dilemma?,16 YALE J. ON REG. 401, 408-11 (1999).
306. See LUPIA & MCCUBBINS, supranote 301, at 206 (arguing that voters often choose opinion leaders based on common interest or trust).
307. See Somin, Voter Ignorance, supranote 20, at 424-26, for a more detailed discussion.
308. See supraPart III.A.
309. Cf. supraPart I.A-B (explaining how Kelomade little change in existing doctrine).
310. SeeMichael Gardner, Lawmakers Rethink Land-Seizure Laws,SAN DIEGO UNION-TRIBUNE, Aug. 17, 2005, at Al (quoting John Shirey's statement about Kelo).
311. Cf. supraPart I.B (discussing public condemnation of the Kelodecision).
312. See infraPart I.B.
313. 2007 SAINT INDEX, supranote 23, qstn. 9.
314. See, e.g.,Somin, supranote 284, at 6 tbl.l (providing survey data that the majority of citizens are unaware of basic facts of several of the most important pieces of legislation adopted by Congress in the 2003-04 term).
315. See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 61-73, 114-15, 121-25 (1974), for a discussion of the concept of position-taking legislation.
316. Dan Walters, Eminent Domain Bills Are Stalled-Except One for Casino Tribe,SACRAMENTO BEE, Sept. 16, 2005, at A3.
317. Id.
318. Id.
319. See supraPart II.A.l.b.i.
320. Interview with Steven Miller, Vice President for Policy, Nev. Policy Research Inst. (Mar. 14, 2007) (on file with author). Nevada eventually passed effective eminent domain reform by referendum. See supraPart II.A. 3; see also supratext accompanying note 115.
321. See discussion of Proposition 99 supraPart II.A.3.
322. See discussion of Proposition 99 supraPart II.A.3.
323. See supratbl.3.
324. See supratbl.3.
325. Cf.Part I.B (noting the widespread political opposition resulted in lit-tie meaningful legislative reform).
326. The Arizona initiative was undertaken by an activist group known as the Arizona Home Owners' Protection Effort. See Arizona Secretary of State, Proposition 207, available athttp://www.azsos.gov/election/2006/Info/ PubPamphlet/english/Prop207.htm. The Nevada law was put on the ballot by the People's Initiative to Stop the Taking of Our Land ("PISTOL"), along with other individuals. See Nevadans for the Protection of Prop. Eights, Inc. v. Heller, 141 P.3d 1235, 1238-39 (Nev. 2006) (listing the respondents to the initiative petition of "Nevada Property Owners' Bill of Rights," which sought to amend the Nevada Constitution with respect to eminent domain). In North Dakota, the ballot initiative was sponsored by a group known as Citizens to Restrict Eminent Domain) (C-RED). See NAT'L INST. ON MONEY IN STATE POLITICS, 2006 BALLOT MEASURE OVERVIEW 37, 48 (2007), available athttp://www .policyarchive.org/bitstream/handle/10207/5780/2007110512006BallotReport- Overview.pdf?sequence-1 (demonstrating that C-RED raised all of the contributions in support of Measure 2, which prohibits government takings of private property for economic development). In Oregon, the post-i&Zo initiative was filed by the Oregonians in Action Political Action Committee. See MEASURE ARGUMENT FOR STATE VOTERS' PAMPHLET FOR MEASURE 39 (on file with author), Oregonians in Action is a property rights activist group. See Oregonians in Action, Background Information, http://www.oia.org/index.php/ about-us (last visited Mar. 13, 2009).
327. See supranote 222 and accompanying text.
328. See Young, supra note 223.
329. See id.(noting role of rent-control phase out in stimulating opposition to Proposition 98).
330. See, e.g., Sandefur, supranote 14, at 768-72 (arguing that interest-group opposition and local government complicity accounts for the failures of the Kelobacklash).
331. Id.
332. Interview with Brooke Rollins, President & CEO, Tex. Pub. Policy Found. (Mar. 17, 2007) (on file with author).
333. See supraPart I.A-B; see alsoPart III.B.l.
334. See supra Part I.B.
335. See supratext accompanying note 47.
336. See Somin, supranote 48, at 1940 tbl.2.
337. See supraPart III.B.2.
338. See supranotes 10-12 and accompanying text.
339. See BERLINER, supranote 66. This data on known eminent domain condemnations by state includes developments from 1998 to 2002. Id.at 8-9.
340. As determined in January 2008.
341. SEEU.S. CENSUS BUREAU, ANNUAL ESTIMATES OF THE POPULATION FOR THE UNITED STATES AND STATES, AND FOR PUERTO RICO: APRIL I, 2000 TO JULY 1, 2005 (2005), available athttp://www.census.gov/popest/states/NST-ann-est2005.html.
342. Some takings affected more than one property. SeeBERLINER, supranote 66 (reporting filed condemnations per state).
343. As determined in January 2008.
344. See U.S. CENSUS BUREAU, supranote 338.
345. Some takings affected more than one property. See BERLINER, supranote 66.
346. As determined in January 2008.
347. See 2007 SAINT INDEX, supranote 23, qstns. 9 & 10.