Sore Winner Bites the Hand that Feeds Him

We have all heard war stories about sore losers. But it isn’t every day that you come across a vociferous sore winner. Allow us to introduce Marc B. Mihaly, an Associate Professor of Law at the Vermont Law School, and a former California pro-government paladin who takes out after Justice Stevens in a recent article in the Ecology Law  Quarterly. He takes Stevens to task for the sin of failing to include in the Court’s majority opinion in the Kelo case some propaganda extolling the virtues of modern redevelopment. Talk about chutzpah!

As all readers of this blog must surely know, a couple of years ago the U.S. Supreme Court hit one out of the ballpark in favor of  condemning agencies with its 5 to 4 decision in Kelo v. New London, allowing cities to take unoffending, privately-owned, lower middle-class homes and turn over their razed sites to private redevelopers so those worthies can build private profit-making malls and such, and presumably make lots of money, all in the hope that some of it will trickle down into the community. This is called “economic redevelopment” and it is supposed to increase municipal tax revenues and thus serve a “public purpose.” Of course, such talk can be no more than a triumph of hope over reality, and municipalities can lose their shirts on such deals, leaving the taxpayers holding the bag. Mihaly concedes, as he must, that “public entities rarely make money on those projects,” but that doesn’t stop them from snowing the courts with optimistic projections about conjectured financial wonders that redevelopment will surely bring to the condemnor-municipality.  They can do that with impunity because the courts do not permit any inquiry into the truth of such matters — the condemnor’s decision to condemn, says the Supreme Court, is well-nigh conclusive.

As you also probably know, the Kelo decision got just about everybody, including those without a dog in this fight, thoroughly ticked off, and has brought upon the Supreme Court a tidal wave of public anger that has been unprecedented, at least in our lifetime. So you’d think that lawyers on the government side, the winning side, of this right-to-take controversy, people like Mihaly,  would be pretty pleased with the court’s handiwork, though given the fierce public and legislative reaction around the country, the more astute among them might well worry that the court went too far.

But not Professor Mihaly. He is all bent out of shape because  he thinks the U.S. Supreme Court’s majority didn’t go far enough.  And what might Mihaly’s specific beef be? We’re glad you asked. It appears that Mihaly is sorely put out with the U.S. Supreme Court because Justice Stevens, the author of the majority opinion — are you ready? — said nothing about the “contribution of public-private economic redevelopment to modern American cities.” Not only that, by Mihaly’s lights  Justice Stevens had the effrontery to limit himself to following what he deemed to be legal precedent in preference to his personal predilections of which Mihaly disapproves. What Justice Stevens should have done, says Mihaly, was to “articulate[] how the regime advocated by the dissents would do violence to the planning and contractual process that has recreated the modern American center city — a new land use regime that is the product of hard-won sophistication among city officials, regulators, and public and private redevelopment advocates.”

This is no place to get into a lengthy disquisition on the legal, social and economic failings of American redevelopment process that even at its best has historically exacted a high price, nor on the injustices inflicted by it on condemnees who are bulldozed out of the way of profit-seeking redevelopers without full and fair compensation for all their demonstrable economic losses, though we undoubtedly will touch on some of those things in future blogs.

In the meantime, here is a bit of advice to Mihaly: when a court bestows a doctrinal and economic bonanza upon you and your clients, it might be a good idea to say “thank you,” and failing that, just to keep quiet. Save your complaints for the times you lose, Marc, and we hope there will be many of those.

2 thoughts on “Sore Winner Bites the Hand that Feeds Him

  1. Carl Christensen

    “As you also probably know, the Kelo decision got just about everybody, including those without a dog in this fight, thoroughly ticked off, and has brought upon the Supreme Court a tidal wave of public anger that has been unprecedented, at least in our lifetime.”

    So Brown v. Board of Education and Roe v. Wade were relatively uncontroversial?

  2. Gideon Kanner

    You are right in noting that both Brown and Roe were indeed highly controversial, but they were not one-sided. In both of them there were, and still are, large constituencies that favored and still favor the court’s rulings. Not so in the case of Kelo. The polls that followed that decision have been overwhelmingly one-sided, running as high as 80-90% against the court’s decision. Ditto for the congressional reaction, and the overwhelming judgment of legal commentators.

    Also the state legislative responses and ballot initiatives, all rejecting or limiting the Kelo holding, speak for themselves. So what I was addressing was not the controversial nature of Kelo (as you seem to believe), but the lopsided public and legislative disapproval of it.

    Finally, most state supreme court public-use cases decided after Kelo have rejected its extremist approach. Read our earlier blog entitled The Cheese Stands Alone.

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