Kelo and Today's Defamation Suit
It is a delight to comment on Bill McGurn's column in today's Wall Street Journal because we spoke extensively about it before he wrote it. Indeed he even had a quotation from me that got killed in editing. Rather than let a great line go unnoticed, I shall lead with it here, and then explain the logic behind it. Here is the quotation:
Unfortunately, the willingness of courts to adopt an open-ended definition of public use unleashes a set of tactical maneuvers that undermine the very spirit of community that Justice Stevens and others think arises when political bodies are allowed to first deliberate and then act free of all constitutional constraint.
The basic problem is this: The assumption that underlay the decision in Kelo was that political bodies essentially deliberate in benign ways when they act without the nettlesome interference of the courts. So it is said that the alternative views will be heard, and the truth will win out. But the world does not work that way. Deliberation in politics is not abstract discourse. It is not an effort to persuade people of some disembodied truth. It is an effort to win favor and support for particular positions. The nature of the deliberation follows the underlying structure of the relevant set of property rights. If the constitutional order says that A can take from B for some private gain, those who stand to win will deliberate in a way that helps them achieve that goal. One part of that argument is that the folks who have the control over deciding whether or not to approve a project should do so because they can get the property at a low eminent domain price even when its subjective value is higher. It only gets worse when as in Kelo the state tops off the deal by giving lots of money that reduces the obstacles that the just compensation clause places in the path of those who wish to take.
So once we get cases of aggressive takeovers, we get cases in which the critics ought be be silenced. Little did I know that when I wrote my blurb, it would become the source of a defamation suit. The case was not, for what it is worth, litigated on the merits. Rather, it was clear that there was no jurisdiction in Texas given that my only contact with the state was the publication of the jacket blurb for a national market. That defense was not available to either Carla Main or Encounter Books, because both clearly did business in Texas. So the merits decision awaits us. I have seen few defamation cases weaker than this one. Mr. Royall should publish his own version of the events because Bill McGurn's column will I think turn few people in his direction.
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Re: Kelo and Today's Defamation Suit
Every so often, Richard, the dream returns to haunt me. It's 1988 and Ronald Reagan, seated at his big desk in the Oval Office, is working his way through a pile of papers sent to him by Attorney General Edwin Meese III. Just as he's about to turn to a file entitled "candidates to succeed retiring Supreme Court Justice Lewis Powell," the President sees a squirrel out on the colonnade. He shoves the file to one side of his desk to find the handful of acorns that he had set on the desk that very morning, anticipating just this moment, then he stands, walks outside, and spends a happy moment, tossing acorns to the squirrel. What the President failed to notice--what history itself will fail to notice--was that as he searched for the acorns he inadvertently knocked a briefing paper out of the folder the Attorney General had prepared for him and into the wastebasket. The title of that briefing paper? "The Safe and Boring Choice: Judge Anthony Kennedy." When the President returns to his desk, he finds waiting for him only this briefing paper instead: "The Brave, Imaginative Choice: Prof. Richard Epstein."
Edited on Sep 28, 2010 at 4:24pmMay '10
Re: Kelo and Today's Defamation Suit
For evidence that the truth doesn't always win out, we need only check back to the scene of the crime. Five years later it's clear that the objective "truth" for which New London argued was anything but: Sussette Kelo's home and 75 others were bulldozed and $80 million of tax money were invested for....a feral cat-infested vacant lot.
Re: Kelo and Today's Defamation Suit
Wish I could read the rest of Bill's column but I'm not a WSJ subscriber.
Regarding your post Richard, my family has personal experience with the issue, as we have twice fended off eminent domain of my family's buisiness, which was going to be taken so a developer could put up condos.
There was no "deliberation" at the planning board when they voted to take us (a planning board full of RINOs by the way). The Mayor and Council draw up the Redevelopment plans, so it's "their baby." So who sits on the planning board to hold hearings and vote on the plan? Among others, the Mayor and Council members (don't you love Jersey?).
I even got the Mayor to admit on cross examination that his mind was made up to vote against us before our witnesses testified. What a monument to due process!
We ended up winning in the Appellate Division and saved the property.
My revenge: When one of those RINOs who voted against us runs for office, I dog him with his "anti-5th Amendment" vote.
Re: Kelo and Today's Defamation Suit
Justice O'Connor did not predict the defamation suits that would arise out of the majority's decision, but she gave a pretty good idea of what would happen when local governments were given the right to take Richard Epstein's farm and give it to Bill McGurn to build a factory that might bring in more tax revenue.
The other factor here are these Economic Development Corporations in these towns, which are embarking on these schemes, often with no business experience but great ambition. The marina Freeport is building is now up to $10 million, almost the size of the town's annual budget.
Jun '10
Re: Kelo and Today's Defamation Suit
It is amazing, the Chinese are weakening their eminent domain laws as the abuse is so grand, which leads to civil unrest. Amazing that 5 justices could be so blind to the real impact here. Thank god for the internet, as what I see in most cases when this becomes a fight is the local newspaper see's the "logic" in the taking....