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Unpublished Paper
Deference and Judicial Review in Eminent Domain Cases
ExpressO (2011)
  • Lynda J Oswald
Abstract

The U.S. Supreme Court, in Kelo v. City of New London, emphasized its “longstanding policy of deference” to legislative determinations of public use. However, the Court also explicitly acknowledged that the federal Constitution sets a floor, not a ceiling, on individual rights, and that the state courts were entitled to take a less deferential approach under their own state constitutions or statutes. This manuscript examines the various ways in which public use analysis can vary between federal and state courts and among state jurisdictions and the difficult issues raised by the interplay between legislatures and courts in takings analysis. Because the U.S. Supreme Court’s deferential approach to public use disputes provides little succor to property owners challenging takings, state court challenges to takings are likely to take on increased importance in coming years. Litigants need to understand the issues raised by judicial review of public use challenges in the state courts.

Keywords
  • eminent domain,
  • public use,
  • deference,
  • judicial review
Disciplines
Publication Date
February 24, 2011
Citation Information
Lynda J Oswald. "Deference and Judicial Review in Eminent Domain Cases" ExpressO (2011)
Available at: http://works.bepress.com/lynda_oswald/1/