Legal Commentary

Podcast of my Debate on Kelo and Post-Kelo Eminent Domain Reform with Saul Levmore

By Ilya Somin

In response to popular demand, The University of Chicago Federalist Society has posted a podcast of my recent debate on Kelo and post-Kelo eminent domain reform with former U of Chicago Law School Dean Saul Levmore. Current UC Dean Michael Schill moderated. The podcast is available here. A good time was had by all, and I got some interesting new ideas for my planned book on Kelo and its aftermath. I am grateful to the UC Federalist Society for organizing this event, and to Dean Levmore and Dean Schill for their excellent participation.

I would like to briefly comment on a point Dean Levmore made that I didn?t get a chance to address at the debate. He claimed that ?90 percent? of people whose property is condemned are happy about it (perhaps because they get high compensation). I would very much like to know the source for this statistic. Most studies of eminent domain compensation suggest that undercompensation is very common. For an excellent recent example, see this article by Yun-chien Chang, which finds that a majority of New York City takings involved less than fair market value compensation.

Many property owners actually value their land above the market price, which is one reason why they continued to own it in the first place instead of selling. So even fair market value compensation often won?t fully offset their losses. Studies of victims of blight and economic development takings (some of which I noted in the last part of this article) show that many of them end up far worse off than before. In that same piece, I also explained some reasons why even fully adequate compensation would not eliminate all the dangers of Kelo-style economic development takings.

Levmore is right that overcompensation is also problematic, since it might lead to people lobbying for their property to be condemned. That, however, rarely happens in the status quo, which is yet another indication that undercompensation is far more common than the reverse.

It?s possible that I misunderstood Levmore, and he simply meant to say that 90% of people whose land is condemned don?t contest the taking in court. That may well be correct. But if so, it is largely the result of the high cost of litigation and the low likelihood of winning, rather than actual satisfaction with the condemnation.

Full post as published by The Volokh Conspiracy on February 06, 2010 (boomark / email).