Document Type
Brief
Case Name
Susette Kelo v. City of New London
Publication Date
12-3-2004
Abstract
No. 04-108
Susette Kelo v. City of New London
On Writ Of Certiorari To The Supreme Court of Connecticut
From the Summary of Argument
The Connecticut Supreme Court's decision was in keeping with Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which provides that legislative assertions of public use should be subjected to rational basis review. The application of such broadly deferential review in public use cases is inappropriate. Application of rational basis review to the exercise of eminent domain in cases such as this effectively eviscerates the Fifth Amendment's public use limitation. Moreover, lower courts' responses to the exponential increase in the use of eminent domain for generalized "economic development" has resulted in a hodgepodge of decisions variously upholding and striking down such condemnations on similar facts. These cases make clear that many state courts are uncomfortable with granting governmental entities carte blanche authority to condemn property for speculative "economic development" projects.
Recommended Citation
Callies, David L.; Garnett, Nicole Stelle; and Nagle, John Copeland, "Brief Amicus Curiae of Professors David L. Callies, James T. Ely, Paula A. Franzese, Nicole Stelle Garnett, James E. Krier, Daniel R. Mandelker, John Copeland Nagle, John Nolon, J.B. Ruhl, Shelley Ross Saxer, A. Dan Tarlock, Laura Underkuffler, and Edward F. Ziegler in Support of Petitioners" (2004). Court Briefs. 68.
https://scholarship.law.nd.edu/sct_briefs/68
Included in
Courts Commons, Property Law and Real Estate Commons, Supreme Court of the United States Commons
Comments
David L. Callies is the Benjamin A. Kudo Professor of Law at the University of Hawaii's William S. Richardson School of Law. Professor Callies is one of the nation's recognized authorities on the law of land use and property. Nicole Stelle Garnett teaches land use and property law at Notre Dame Law School. The following law professors who teach and write on the subjects of property and land use join Professors Callies and Garnett in asking the Court to apply an intermediate standard of review in deciding the sufficiency of public use in eminent domain cases, reversing the Connecticut Supreme Court in Kelo v. City of New London: James T. Ely, Vanderbilt University; Paula A, Franzese, Seton Hall University; James E. Krier, University of Michigan Law School; Daniel R. Mandelker, Washington University School of Law; John Copeland Nagle, Notre Dame Law School; John Nolon, Pace University; J.B. Ruhl, Florida State University; Shelley Ross Saxer, Pepperdine University; A. Dan Tarlock, Chicago-Kent College of Law; Laura Underkuffler, Duke University; Edward F. Ziegler, University of Denver.
Authorities include:
Nicole Stelle Garnett, The Public Use Question as a Takings Problem, 71 Geo. Wash. L. Rev. 934, 939 (2003).