Bethany Berger

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Wesley Horton and Brendon Levesque are right that public outrage over Kelo has overshadowed the real facts of the New London plan, and that the decision only affirmed well-established precedent. But while the facts were on New London’s side, those facts were harder to translate to the public sympathy than the story of the white, female plaintiffs effectively publicized by the Institute for Justice in the case. Kelo is also not Dred Scott in even more ways than Horton and Levesque state. Unlike Scott v. Sandford, Kelo preserved the rights of individuals to challenge taking of their homes and receive compensation for the same. For lead plaintiff Susette Kelo, this right to compensation resulted in a pay-out of about four times the value of her little pink house. And while Scott v. Sandford helped trigger a constitutional revolution, Kelo remains good law, and the state legal response to it is more show than substance. Although I agree with the authors on the big picture, I suggest caution on their proposal for curbing eminent domain abuse. The scrutiny for pretext they propose was established well before Kelo, but some of the factors they suggest would discourage public-private partnerships that may more effectively achieve public goals. While judges must police governments for bias and favoritism, having inexpert judges make decisions that are better left to planning experts and the public process will not achieve this end.