Monthly Archives: December 2015

A Good Read

We are pleased to announce that the Law Professor Blogs Network has announced its list of the best land-use/eminent domain law review articles in the past 10 years, and have included in that list one of ours: Gideon Kanner, The Public Use Clause: Constitutional Mandate or “Hortatory Fluff”? 33 Pepperdine Law Review 335 (2006). The title says it all, but if you haven’t seen this article before, here is a brief quote from the conclusion:

“The Constitution does not require courts to facilitate predatory behavior by a business-government alliances seeking to increase their cash flow by depriving people of modest means  of their homes. The Public Use clause is not “hortatory fluff.” Its plain meaning deserves judicial respect, no less than other cherished constitutional provisions. Those who seek its protection deserve a better judicial reception than the “thinly disguised contempt”[*] for their vital interests, that is their frequent litigational lot. ” Id. at 383, footnotes omitted.

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*The first quote comes from Justice O’Connor’s dissenting opinion, and the second quote from an unrelated opinion by Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.

Eminent Domain on the Silver Screen

We finally got our hands on a 1960 20th Century Fox movie we had heard about but never saw until now. It’s titled “Wild River,” and it’s a story of TVA’s taking of the last parcel for a dam. It stars Montgomery Clift and Lee Remick. The parcel is an island in a river and is owned by an old widow who is one of those classic “holdouts” who does not want to part with the land on which she was born and on which she means to die.

The romantic interest is provided by a right of way agent (Montgomery Clift) and the old lady’s widowed granddaughter (Lee Remick). The movie has all the stock characters  of such stories: a sympathetic old-lady condemnee, and a warm-hearted, understanding right of way agent who has to acquire her island, even if he sympathizes with her plight. If you want to know how it all turns out, see the movie, which may not be easy because it is not available on Netflix.

For our purposes, we note the usual New Deal propaganda — the movie leaves its viewers with the impression that the TVA will bring unalloyed goodness and its ministrations will transform the flood-prone river valley into a paradise. And never mind that in reality, the TVA’s taking of land for dams on the Tennessee River turned out to be a bonanza for the TVA which became able to sell electricity from its newly-built dams for 50% less than competing private electrical utilities. The demand for TVA’s electricity became so great that it exhausted its hydroelectric generating capacity. Whereupon the TVA built a bunch of coal-fired generating plants which provided power to its customers at a mere 30% discount below existing privately owned utilities. To say nothing of the resulting need for coal for those new fossil-fuel fired power plants, which inspired extensive strip mining leading to environmental degradation that included gross pollution when a giant ash heap collapsed and inundated nearby land.

All in all, not a bad eminent domain saga, particularly if you ignore its propaganda aspects, and the fact that in spite of the law and its promises, the TVA did not pay for all the land it acquired by eminent domain — which we learn from the New York Times.