A few weeks back, Paul posted a comment on the Pfizer decision to pull out of New London, a decision that throws that city's redevelopment plans into disarray and likely means that its use of eminent domain to obtain title from the holdouts against redevelopment in the Fort Trumbull neighborhood was unnecessary. He suggested that the failure of New London's redevelopment plans was evidence that the Supreme Court's decision in Kelo v. New London was wrong and that the dissenters were right. While Paul's discomfort with eminent domain is, I think, perfectly reasonable, his view of the Kelo case reflected what is in my opinion a common misunderstanding of that case's significance. Far from weakening the Constitution's protection against eminent domain where it had previously existed, my reading of the case is that it broke no new ground in its interpretation of the "public use" limitation on the eminent domain power and that, if anything, it actually increased protection from eminent domain abuse by introducing the idea that eminent domain undertaken for pretextual reasons violates the Fifth Amendment.This recent decision from the New York Appellate Division invaliding the use of eminent domain in support of Columbia University's expansion in West Harlem provides a nice illustration of the protective potential of that "pretext" language in the hands of an engaged court. Relying heavily on Kelo, and on an unfavorable contrast between the processes used by the condemning authority in the New London and Columbia University cases, the First Department found that the public benefits the New York Urban Development Corporation had proffered to justify its use of eminent domain to help Columbia University complete its planned expansion into the Manhattanville neighborhood were mere pretexts and that the use of eminent domain in that project violated the U.S. Constitution.Although the First Department's opinion is far from perfect, the result seems correct to me in light of the fairly shocking facts described by the Court. More significantly, it belies the notion -- widely peddled by property rights activists -- that Kelo somehow eviscerated constitutional protection against eminent domain abuse. To justify its decision, the First Department pointed to the lack of any comprehensive effort by New York City to create a redevelopment plan for the neighborhood independent of Columbia University's proposed expansion needs. It also pointed to specific evidence strongly suggesting that the Development Corporation had, in effect, been "captured" (my word, not the Court's) by Columbia University and was acting almost as an arm of the university rather than as an independent agent of the public interest. In initially determining that the neighborhood was blighted, for example, the Development Corporation hired Columbia University's own consultant to study conditions in the neighborhood. Unsurprisingly, the consultant found the neighborhood to be blighted. Similarly, in rejecting an alternative plan set forth by the responsible Community Board, the Development Corporation simply observed that the plan did not meet the conditions identified by Columbia University. Obviously, it's just one decision by one mid-level state appellate court, but I think the First Department's decision offers some vindication of the intuitions, central to the majority's decision in Kelo (and to Justice Kennedy's concurring opinion in that case), that a determination that the public interest justifies the use of eminent domain is, in the first instance, properly made by (local) political branches of government, but that there is room for judicial review of the underlying processes to ferret out the sort of private capture that the First Department found to have been at work in the Manhattanville plan.It will be interesting to see what, if anything, the New York Court of Appeals does with this case. It recently upheld the use of eminent domain in the Atlantic Yards case, but it's not clear to me that the evidence of pretext and capture was as strong in that case.
Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.