Is That Legal?

I'm not commenting to admire the metaness of the post.

I'm commenting to remark on the animated blog ad blinking away calling for donations to the Duke Lacrosse players legal defense fund. They should thank their grandfathers for their cotton-picking trust funds.

Almost as surprising as the News and Observer declaring that "[The Duke lacrosse] case amounts to the new gold standard, or maybe that should be the tin standard, of wretched excess, of a prosecutor's determination to win no matter what."

Alan Who?

True, Kelo did not change the law much, but the blogging about Kelo did bring to light some troubling aspects of Takings law. Granted the public did not generally understand that Kelo was really old news, but if the case (or rather blogging about the case) manages to bring the law more in line with America's values, then where is the harm?

And could we really say that traditional media were any less to blame for the public's confusion about Kelo?

ELM: My impression at the time, Mark, was that it was bloggers who were leading the critical wave, not op/ed writers in the newspapers. Of course, I read blogs more than newspapers, so my perspective may be skewed. On the merits, I have just never understood how any principle that Kelo might fairly be said to represent is so out of line with America's values -- unless one thinks that America's values include the value of having unelected judges decide what serves the public's interests rather than having local town councils and zoning boards decide.

My problem with Kelo is that it further instantiated a definition of "public use" that makes it all too easy for corrupt government officials to enrich themselves and their cronies by instrumental use of takings powers. I've seem way too many cases in which land is "eminent domained" for a public works project that is mysteriously moved or tabled, then the land is sold to an eager third party purchaser. Kelo gave courts further permission not to scrutinize these kinds of deals very closely. I handled some cases like this when I was in practice, and it was close to impossible to prove in any concrete way the corruptness of the machinations that were going on until years afterwards, when the self-dealing finally became clear.

Recently, a tract of land in my neighborhood that was "taken" by the city to be a park with trails was sold at a deep discount to a well connnected developer. Supposedly there was "neighborhood opposition" to the trails. I don't believe it. Anyway, the deal was done before the previous owner of the land had any notice and she got no opportunity to buy it back. I think Kelo made courts less likely to look into this kind of episode.