29 St. & Loc. L. News 1 (2005-2006)

handle is hein.journals/stlolane13 and id is 1 raw text is: IM    Section of State and Local Government Law

STATE &
LOCAL LAW
The Section serves as a collegialforum for its members, the profession, and the public to provide leadership and educational resources in
urban, state, and localgovernment law and policy.

U.S. Supreme Court Takings Cases Raise Research Issues
By John R. Nolon andJessicaA. Bacber

[Nbo person ... shall be deprived of... property without due
process oflaw ... ; nor shallprivate property be taken for public
use, withoutjust compensation. '
At the end of its recent term, the U.S. Supreme Court de-
cided two cases -that both clarify and confuse Fifth
r'.Amaendment jurisprudence: Lingle v. Chevron' and Kelo
v. New London.' In Lingle, the Court unanimously reversed a
troublesome twenty-five-year-old precedent that clouded
regulatory takings law; the case was one of broad application,
yet it received almost no media coverage, few protests from
the losing interests, and, so far, little commentary in legal
journals. In Kelo, a five-Justice majority affirmed a solid fifty-
year-old precedent regarding the scope of governmental
power to take title to land for a public use, over a passionate
dissent, which had the effect of confounding relatively clear
constitutional doctrine; the debate within the Court caused
a media frenzy, stirred by great agitation from the interest
John R. Nolon is a professor at Pace
University School of Law, counsel
to its Land Use Law Center, and
visiting professor at Yale's School of
Forestry and Environmental Studies.
Jessica A. Bacher is an adjunct
professor at Pace University School
of Law and a staff attorneyfor
the Land Use Law Center.

groups affected, and has led to countless legislative proposals
for corrective legislation.
The majority decisions in both cases square well. They are
based on the understanding that the power of government
to regulate private property in the public interest and the
power to condemn private property for a public use are coter-
minous. They are both limited and justified by the power of
the sovereign to act to protect the public health, safety, and
welfare. The exercise of both powers is subject to the same
standard of review by the courts: one of deference to the judg-
ments of the legislative branch, which will not be set aside
unless found to be unreasonable. When a property owner al-
leges that a condemnation of property is invalid because it is
not calculated to achieve a puklic use under the Takings
Clause, courts apply the same standards that they do to deter-
mine whether a regulation violates the Due Process Clause.
Justice O'Connor's strong dissent in Kelo, which was joined
by the Chief Justice and Justices Scalia and Thomas, dis-
agreed with these basic constitutional notions. After a brief
recitation of the facts and holdings of the two cases, this arti-
cle discusses several of the major issues raised by the dissent
in Kelo and the firestorm of criticism that followed.
continued on page 14
* Section News, page 2
-Fordham Awards Presented in Chicago, page 2
-Environmental Law, page 6
-Section Recognizes Student Achievement, page 6
* Fall Meeting in Boston, pages 4-5
* Resolved: Let's Make Brownfields Work!, page 7
* Summary of Final Treasury Regulations Pertaining to
State and Local Government Securities, page 8
* Supreme Court Watch, page 11

Vol. 29, No. 1, Fall 2005

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