Academic

Oswald on Deference & Eminent Domain

By Lawrence Solum

Lynda J. Oswald (University of Michigan - Stephen M. Ross School of Business) has posted Deference and Judicial Review in Eminent Domain on SSRN. Here is the abstract:

The U.S. Supreme Court, in Kelo v. City of New London, emphasized its ?longstanding policy of deference? to legislative determinations of public use. However, the Court also explicitly acknowledged that the federal Constitution sets a floor, not a ceiling, on individual rights, and that the state courts were entitled to take a less deferential approach under their own state constitutions or statutes. This manuscript examines the various ways in which public use analysis can vary between federal and state courts and among state jurisdictions and the difficult issues raised by the interplay between legislatures and courts in takings analysis. Because the U.S. Supreme Court?s deferential approach to public use disputes provides little succor to property owners challenging takings, state court challenges to takings are likely to take on increased importance in coming years. Litigants need to understand the issues raised by judicial review of public use challenges in the state courts.

Full post as published by Legal Theory Blog on March 01, 2011 (boomark / email).