Centerfield

I think it's a big deal everywhere. I think I'd at least be open to the merits of allowing such takings if we were talking about a large very blighted area that the owners had made no efforts to improve, which "condemnation" suggests. But if the properties were in reasonable repair and economically viable as is for the owners, I'd say you have to meet their price or its no go.

That's really what I worry about, instances were the powerfully connected strong-arm someone out by using the government as a way to simply get things done cheaply and more quickly. OTOH, I'm unsympathetic to the idea of property owners holding onto property and setting a very unreasonable asking price simply because they hold a strategic piece of property.

Ideally, such conflicts are settled privately through good faith negotiations, but that doesn't always happen.

The bottom line is that eminent domain powers exist for the purpose of the common public good. The less obvious and more arguable that public good is, the less likely it's purely the public good that is at stake.

I'm very interested to see what the Supremes say.

I heard about this on NPR last week. I can't imagine the Supreme Court giving this sort of thing the thumbs up. You're right, Brian, it would make property rights meaningless and give a heck of a lot of power to the government. Property ownership is supposedly part of the American dream, would the Supreme Court really say, "Yeah, well, wake up?"

I agree with you guys. The SC is going to come down on the side of property rights. I don't think the economic development argument holds up against the fundamental right of ownership.

I'll be surprised if it falls the other way.

I took a course on eminent domain law in law school although I certainly don't claim to be an expert on it. Remember, however, eminent domain does not mean they just take the property; they just have to compensate the owner for it, although, I don't know if it has to be at market prices. The Fifth Amendment prohitits "taking" of property without due process; but if the government pays for it, it's not a taking (although you could argue that below value compensation would be a taking.)

In general, as I recall, eminent domain powers are pretty broad. In this case, I guess the owners are arguing that the condemnation is not for a public purpose. I think that might be a pretty hard road to hoe, although I don't know the case law. I wouldn't necessarily assume this is as much of a slam dunk case (where have we heard that term before?)as you seem to think.

I for one am far from sure it's a slam-dunk case. I'm hoping Volokh or someone else more knowledgeable than myself discusses it. Volkh usually does a great job sketching the elevant precedents in the case law.

My guess is that the Supremes will make a very narrow ruling that resolves the particular case but does not establish much more in the way of precedent-setting guidelines. Doing so would allow more cases to be ajudicated so that general priciples could emerge over time about what sorts of things are public goods and which are less obviously so. I doubt they'll describe any sort of threshold principle, but maybe it's unavoidable.

If they rule on the basis of the letter of the law and local authority, they may well say that the law grants authorities the right to take by eminent domain and also the authority to determine what the public good is. In this particular case, it seems to me that it would require the courts to be liberal/libertarian in order for them to issue a ruling saying "you can't just decide it's the public good and then trample property rights." Does it require the court to take a liberal view to affirm the traditional conservative principle protecting property rights against the government? Does a stricter constructionist view affirm government authority, saying "this is regrettable but legal." That's happened before. I don't know enough to say for sure.

I hope it doesn't pan out to expand gov't authority, but at least there'd be some petard hoisting to enjoy if conservative review affirmed government power. Cold comfort though, IMO.

I don't think conservatives are necessarily against government power as long as it's on the local level. It's the expanison of federal power that they object to. Eminent domain has long been a traditional tool in the arsenal of local government. So, I'm not sure where this case cuts on the liberal/conservative axis.

When I have time I'll add an update. I was wrong about the strict constructivist view. It turns out the constitution in the 5th amendment specifically says "public use" and that a 1954 expansionist reading declared that public use encompasses public purpose. It was that expansion that seems to have perverted things, or at least given greater government power than the constitution specifically granted. Given this, it seems possible that the upcoming decision will establish some sort of limited precedent that bats the ball back towards individual rights. i sure hope so, anyway.