Brief of Amicus Curiae — Pacific Legal Foundation, 12/04

Filed in the United States Supreme Court
in support of petitioners in the case of
Susette Kelo et al v. City of New London Connecticut et al

The Pacific Legal Foundation, along with the Center for Individual Freedom and several provate parties, has filed an Amicus Curiae (Friend of the Court) brief for the pending US Supreme Court appeal of a case in which citizens of New London are objecting to the use of eminent domain to take their property for purposes of private development. The challenge is essentially to the broad interpretation which has evolved over the past several decades to the requirement that any such "takings" be "for public use."

Among other points raised in the brief:
  • [This form of] condemnation is an extreme example of government coercion. Its effects on property owners are severe, not only in the form of economic deprivation, but in emotional, psychological, and social terms as well. Condemnations that take the land of innocent citizens, and transfer it to private developers for their own profit, are fundamentally unfair. They threaten not only the legal standards established by the Constitution, but also the more abstract social values of citizenship and domestic tranquility.
  • The primary victims of such condemnations are poor minorities, and the primary beneficiaries are wealthy, politically powerful groups, who are more able to persuade authorities to condemn property for their benefit.
  • Since the benefits conferred by government will be localized and concentrated, while the costs are broadly dispersed, the incentives will be skewed toward increased lobbying and ever-increasing amounts of wealth distribution. ... Suppose government takes $1 from each of 100 people, and gives it all to person X. It is in X’s interest to spend $99 to convince the government to do this again; but it is only in the interest of each other person to spend $1 to convince it not to. Rent-seeking behavior therefore tends to “restrict[ ] those political processes which can ordinarily be expected to bring about repeal of undesirable legislation ... It is not cost-efficient ... for a taxpayer to fight a particular piece of special-interest legislation.
  • Even though a particular condemnation may concentrate the cost of the taking on the affected landowner . . . that owner is not likely to invest enough to uccessfully oppose the condemnation. First, the existence of compensation, even when not truly substituting for market or subjective value, decreases the cost to the affected owner of the land seized and thereby decreases his incentive to invest in fighting the condemnation. Furthermore, the special interest is likely to have more political influence, because unlike the landowner, the interest group is probably a repeat player in the political process . . . . Additionally, the interest group is unlikely to seek rents through condemnation and transfer if it does not believe that it has a reasonable likelihood of success.

A complete copy of the brief is online at:

Pacific Legal Foundation: www.pacificlegal.org
Center for Individual Freedom: www.cfif.org