In this critique of the essay “Kelo Is Not Dred Scott” written by Attorneys Wesley Horton and Brendon Levesque, Justice Peter Zarella explains how the authors of that essay, along with the Connecticut and United States supreme courts in Kelo v. City of New London, overlooked an important distinction in cases involving the taking of private property through eminent domain: public ownership and control versus private ownership and control. It is this distinction, Justice Zarella claims, that supports use of heightened judicial scrutiny in cases where property is taken for the “public use” of economic development, an approach he advocated in his dissent in Kelo. He further expounds on how such an approach was supported by the case law of both Connecticut and the United States. In addition, this Essay provides a counterpoint to the argument presented by Attorneys Horton and Levesque that economic development takings should be treated no different than other takings by highlighting three ways in which economic development takings are different than takings previously upheld by the courts. Finally, Justice Zarella refutes the claim asserted by Attorneys Horton and Levesque that democracy is an adequate check on eminent domain abuse.
Zarella, Peter T., "Kelo Ten Years Later: A City's Unrealized Dream and the Destruction of a Neighborhood Commentary Essays" (2016). Connecticut Law Review. 337.