By David A. Dana 

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Professor Somin's response[1] to my article on post-Kelo[2] reform, The Law and Expressive Meaning of Condemning the Poor after Kelo,[3] makes several intriguing points.  And it also provides a more current take on takings reforms in the states, which are certainly still in flux.

Professor Somin, however, overstates the number of states that have flatly banned blight and economic development condemnations, and hence underplays the central importance of the distinction between "blighted" and non-blighted property in the post-Kelo reform legislation, initiatives and court cases.  The Nevada initiative is not yet part of the Nevada Constitution;[4] a second round of voting will be required before it is ratified[5] (although perhaps the easy passage in the first round of voting suggests it will pass again).  The Kansas statute still allows blight condemnations for serious housing code violations, which may not be that hard to find in the stock of urban rental housing in poor neighborhoods.[6]  The statute, in practice, thus may not make it much more difficult to condemn these areas. And the South Dakota statute is ambiguous on this issue.[7]  In any case, South Dakota has hardly been, or will hardly ever be, a major site of urban redevelopment initiatives.  The fact remains, moreover, that post-Kelo at least twenty five states now set different standards for blight and non-blight/economic condemnations, even by Professor Somin's count.

By Ilya Somin[*]

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[Editor's Note:  This piece is a response to an earlier Colloquy piece by David A. Dana, The Law and Expressive Meaning of Condemning the Poor After Kelo, 101 Nw. U. L. Rev. 365 (2007); 101 Nw. U. L. Rev. Colloquy 5 (2006), http://www.law.northwestern.edu/lawreview/colloquy/2006/2/ (link).]          

Introduction

In a recent article in the Northwestern University Law Review Colloquy,[1] Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for "economic development," but allow the condemnation of land on which poor people live under the guise of alleviating "blight."   This, he claims, results in reform laws that "privilege[] the stability of middle-class households relative to the stability of poor households" and "express[] the view that the interests and needs of poor households are relatively unimportant."[2]

I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserves much greater attention, and that post-Kelo reform initiatives should do more to address these concerns.   However, I disagree with his argument that post-Kelo reform efforts have systematically treated land where the poor tend to live worse than that of middle and upper class homeowners.   As of this time (March 2007), most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings (five states, plus Utah, which enacted its reform law prior to Kelo), or defined "blight" so broadly that virtually any property can be declared "blighted" and taken (sixteen states).   Several other states have enacted reforms that provide no real protection to any property owners because of other types of shortcomings.   Only nine states are actually guilty of the sin condemned by Professor Dana of allowing only the condemnation of "blighted" areas narrowly defined.

To the extent that some states have indeed banned "economic development" condemnations in affluent neighborhoods, while permitting "blight" condemnations to go on in poor ones, I agree that this is a lamentable state of affairs.   However, it may still be a better result than simply subjecting all property to the risk of economic development takings.   A law that protects the property rights of most but not all of the population is preferable to one that protects no one.   Such a law might also benefit many poor people who live in nonblighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations.

Furthermore, the exclusion of blighted property from some states' bans on "economic development" condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor.   There are perfectly noninvidious (though in my view flawed) reasons for believing that condemnation is sometimes necessary to eliminate blight.   There are few or no reasons, however, to use condemnation to promote economic development through the transfer of property to private owners.

By David A. Dana

Abstract:

This Essay provides a review of the changes in state law following Kelo v. City of New London, and in particular focuses on the dominant reform: the prohibition of economic development condemnations in non-poor areas (which Kelo allows, as a matter of federal constitutional law) coupled with continued allowance for blight condemnations in poor areas.  This dominant reform, the Essay argues, privileges the stability of middle-class households over the stability of poor ones, and thus expressively devalues poor people and poor communities in legal and political discourse.

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Copyright 2006 Northwestern University

Cite As:  101 Nw. U. L. Rev. (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 5 (2006),  http://www.law.northwestern.edu/lawreview/Colloquy/2006/2/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2006/2/