Article by John J. Costonis
Louisiana's constitutional provision is one of these measures. It was adopted twenty-four months after the Kelo decision, which preceded Hurricanes Katrina and Rita by only two months. Part II of this Article utilizes the storms' devastation and the City of New Orleans' recovery program to document the essential role assigned to eminent domain in the latter.
Part III moves from New Orleans to the national stage to review the states' various post-Kelo approaches. It highlights a pattern, the “anti-Kelo format,” which tightens the eminent domain power's ambit well beyond the limits proposed by Justice O'Connor. Louisiana's constitutional amendments can plausibly be claimed to align with this approach. An assessment of the format's structure, moreover, reveals its inadequacies when measured against the public need created by the nation's largest natural disaster as well as by the less dramatic if equally necessary regular requirements of urban systems management.
Part IV returns to Louisiana to place the state's post-Kelo measure within the national context. It details why the measure will shut down eminent domain's use as currently envisaged in New Orleans' recovery program if Louisiana courts construe the measure as an anti-Kelo format clone.
Part V offers four conclusions. The first is that Kelo erred when it unlinked eminent domain from the solution of substantive urban system problems. This reasoning trivialized the power's redevelop-ment role, needlessly triggered post-Kelo outrage, and gave rise to the fantasy that the matter could be set aright by banning “economic development” as a “public use,” or, in Louisiana's case, as a “public purpose.” This Article advocates reestablishing the linkage as the central inquiry posed by the public-use criterion.
The second is that the anti-Kelo format's preference for a closed-ended, pre-twentieth-century definition of the eminent domain power's scope is driven by considerations that aggressively ignore the public necessities disclosed by New Orleans' faltering recovery efforts, and, more broadly, by the urban systems needs of America's cities generally.
The third is that the initial wave of post-Kelo measures merely commences the states' effort to wrestle with Kelo. A second wave awaits in which the courts will serve as co-authors of the many first-wave measures that, lacking authoritative construction, admit to an array of conflicting interpretations. I anticipate a third wave as well, as legislatures in other states revise their handiwork to avoid the qualms and misgivings of the kind now plaguing New Orleans' stalled recovery program.
My final observation adopts Justice Brandeis's metaphor that views each of the post-Kelo responses as the work of an individual state “laboratory” engaged in “novel social and economic experiments.” The coming years will provide an experiential basis for determining the wisdom and practicability for eminent domain-based redevelopment of the anti-Kelo format as contrasted with more flexible approaches that are no longer confined simply by the slum and blight clearance goals of the earlier Berman era.
About the Author
John J. Costonis. Chancellor-Emeritus and Professor of Law, Paul M. Hebert Law Center, Louisiana State University.
Citation
83 Tul. L. Rev. 395 (2008)