A Federal Requiem for Public Use: And a Blueprint for State Action

Abstract

A bare majority of the Kelo Court upheld the exercise of eminent domain for the purpose of economic revitalization. Heavily relying on its previous decisions in Berman and Midkiff, the Court stated it was too late in the game to revisit its present expansive view of public use. There is no difference in modern eminent domain practice between public use and public purpose, at least in federal court. Indeed, the Court, by a narrow 5-4 vote, specifically equated public use and public purpose before holding that condemning land for economic revitalization was simply another small step along the continuum of permitting public benefits to be sufficient indicia of meeting public use/public purpose requirements. As the Court also noted, it is now up to the states to decide whether or not to increase the burden on the government's exercise of compulsory purchase powers. The federal bar is presently set so low as to be little more than a speed bump.