The Cato Institute: Property Rights on the 10th Anniversary of Kelo v. City of New London

Elizabeth Donald
Seton Hall 2016

In light of the 10th anniversary of Kelo v. New London and the release of the first book providing a legal analysis of the case, the Cato Institute held a conference on property rights this summer. Having argued and won Kelo, Attorney Wesley Horton was invited to the conference to discuss his opinion regarding the significance of the 5-4 decision which upheld the condemnation of residential properties for economic development.

Ilya Somin, the first speaker on the panel, utilized research from his book, The Grasping Hand, to argue in favor of a narrower conception of public use. He opined that the public use clause victimizes minorities as broadly applied today, leading to wide public opposition. Accordingly, Somin asserted that the only way to prevent unjust condemnations is to draw a bright line against all condemnations for economic development.

Speaking after Ilya Somin, Attorney Horton opined that Somin’s endorsement of a bright line test actually breeds injustice. He stated that a bright line “makes it easy for judges to fall on either side of the law” rather than employing a more effective balancing test, as with First Amendment cases. Attorney Horton opined that reviewing condemnation cases on an individual basis is more receptive to both sides’ arguments, noting the holding that “economic development can be a public use.”

Attorney Horton was followed by Attorney Scott Bullock, who represented Mrs.Kelo in the case. Attorney Bullock stressed the importance of landowners’ deep attachments to their properties which, as Rep. Tom Reed pointed out in his opening remarks, is part of the American dream. Bullock further advocated for a bright line in fear that takings for economic development would allow for “a dollar store to be replaced by a Costco.”