Abstract
Susette Kelo's old house in New London, Connecticut is long gone, as is the entire Fort Trumbull neighborhood that once surrounded it. In 2005, the U.S. Supreme Court decided a case—Kelo v. City of New London—that cost her and her neighbors their homes and sparked a wave of state-level reforms to mitigate its potential damage to private property. In Kelo, the Court held that "economic development" as a "public purpose" was also a legitimate "public use" under the Fifth Amendment's Takings Clause, which provides "nor shall private property be taken for public use, without just compensation." As Justice Clarence Thomas noted in his dissent: "If such 'economic development' takings are for a 'public use,' any taking is, and the Court has erased the Public Use Clause from our Constitution." The risks to private property this approach presents are at their greatest when governments stretch the meaning of "blight" to essentially cover anything that impedes public progress, whatever lawmakers themselves conceive that to be.
This Article discusses the last roughly two decades of public-use jurisprudence and places Alaska's response to Kelo in conversation with other states'. In places like New York, Arkansas, and Massachusetts, Kelo and other Supreme Court precedents have together swung state-level precedent on the topic too far in government's favor. There, owners largely bear the burden of proving that the government has no good (or even decent) reason for condemning their properties.
On the other end of the spectrum, states including Florida and Michigan have read "public use" much more narrowly—and in a manner that far more closely reflects the original public meaning of the Takings Clause. The piece concludes with an exploration of recent efforts to expand the definition of blight in Alaska, and a discussion of judicial and popular means of protecting the status quo—or better yet improving upon it—in the fortunate event that Alaska's legislature does not redefine "blight," as some lawmakers have threatened in the recent past.
Citation
Sam Spiegelman,
Blight Made Right: Defects in State Condemnation
Laws and a Roadmap for Reform in Alaska and
Beyond,
40 Alaska Law Review
341-381
(2024)
Available at: https://scholarship.law.duke.edu/alr/vol40/iss3/2