Hysteria Versus History: Public Use in the Public Eye

Abstract

The negative public reaction to the U.S. Supreme Court's decision in Kelo v. New London (2005) was as unexpected as it was widespread. What was the nature of the reaction in the public media in the hours, days, and weeks following the announcement of the opinions? How did media coverage in the summer of 2005 compare with that in the fall of 1954 and the spring of 1984, when the pro-taking decisions in Berman v. Parker and Hawaii Housing Authority v. Midkiff were announced? What factors can we identify that offer the best hope of explaining why the response to Kelo was so much more intense and unfavorable? This chapter from Private Property, Community Development, and Eminent Domain (Robin Paul Malloy ed., 2008, Ashgate) addresses these three important questions as a vehicle for exploring (1) the importance of context in appraising judicial decisions, (2) the implications of an important shift in the American political milieu that occurred during the closing decades of the twentieth century, and (3) the emergence of the Public Use Clause as the soft underbelly of government regulation of land.

Keywords: Kelo, public use, eminent domain, Supreme Court, takings

JEL Classification: K11