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Bench Memos

NRO’s home for judicial news and analysis.

Kelo’s Anniversary



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The Supreme Court’s Kelo decision is one year old, and it still inspires controversy.  Some groups want to make the decision a rallying cry in judicial confirmation fights. I agree with Andrew Hyman that this is a mistake, because the decision was correctly decided (see also here ).  However much eminent domain abuse angers the public, judicial refusal to invalidate such actions is not “judicial activism.”  The originalist case that the Fifth Amendment imposes a “public use” limitation on state and local government uses of eminent domain is exceedingly weak.  That said, I’m all in favor of legislative and executive actions to curtail eminent domain abuse, such as the President’s new executive order on eminent domain.  Unfortunately, there has been little meaningful progress on this front, as Ilya Somin notes here .



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