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The Grasping Hand"Kelo v. City of New London" and the Limits of Eminent Domain$
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Ilya Somin

Print publication date: 2015

Print ISBN-13: 9780226256603

Published to Chicago Scholarship Online: May 2016

DOI: 10.7208/chicago/9780226256740.001.0001

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The Judicial Reaction

The Judicial Reaction

(p.181) Chapter Seven The Judicial Reaction
The Grasping Hand

Ilya Somin

University of Chicago Press

This chapter analyzes the judicial reaction to the Kelo decision, which is almost as significant as the much better-known political backlash. In the aftermath of Kelo, several state supreme courts have rejected it as a guide to the interpretation of their state constitutions’ public use clauses. This is significant both for the future of takings in those states and as an indication that there is no longer a judicial consensus supporting the broad interpretation of public use. State and lower federal courts have also sought to make sense of Kelo’s statement that its otherwise highly deferential approach to public use does not apply to “pretextual” takings, whose official rationale is a pretext for a scheme to benefit a private party. Lower courts have come up with five different approaches to determining what qualifies as a pretextual taking. The resulting confusion might well lead to the return of the public use question to the Supreme Court.

Keywords:   state constitutions, federalism, pretextual takings, judicial review

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