Synopses & Reviews
On June 23, 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in the Fort Trumbull area in order to promote and#147;economic developmentand#8221; by transferring them to a new private owner. The use of eminent domain to take private property for public works is generally considered a permissible and#147;public useand#8221; under the Fifth Amendment. In New London, however, the land was condemned to pursue private economic development. When the Supreme Court upheld these takings in
Kelo v. City of New London it empowered the grasping hand of the state and enfeebled the invisible hand of the market.
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In this detailed analysis of one of the most contentious Supreme Court cases in modern times, Ilya Somin argues that Kelo represents a seriousand#151;and dangerousand#151;error. Not only are economic development and closely related blight condemnations unconstitutional under both originalist and most and#147;living constitutionand#8221; theories of legal interpretation, they also tend to victimize the poor and the politically weak, and to destroy more economic value than they create. Kelo exemplifies these patterns: the neighbors who chose to fight their evictions had little political power, while the influential Pfizer corporation played an important role in persuading officials to proceed with the project. In the end, the poorly conceived development plan failed: the condemned land lies empty to this day, occupied only by feral cats. A notably unpopular verdict, Kelo triggered an unprecedented political backlash, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new state laws turned out to impose few or no genuine constraints on the governmentand#8217;s power to condemn property. The Kelo backlash led to significant progress, but not nearly as much as it would first appear.
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Despite its outcome, the closely divided 5and#150;4 ruling in Kelo shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread opposition to economic development takings. With controversy over this issue sure to continue, The Grasping Hand offers a thorough analysis of the case alongside a broader history of the dispute over the meaning of public use and the use of eminent domain, and an evaluation of options for reform.
Review
“An exhilarating book full of interesting new perspectives.
Rehabilitating Lochner will change the way people think about the transition from the late nineteenth century to the modern New Deal and Civil Rights regime. It does what good revisionist history should do: see what is familiar in new ways.”—Jack M. Balkin, Yale Law School
Review
“David Bernstein drives home powerfully and convincingly the fact that the supporters of Lochner were the biggest proponents of protecting the personal rights of African Americans, Roman Catholics, and other minorities.
Rehabilitating Lochner will have a profound impact on constitutional law scholarship.”
Review
“A terrific work of historical revisionism,
Rehabilitating Lochner brings out some attractive resonances in libertarian themes associated with the widely disparaged constitutional jurisprudence of the period from 1905 to 1937, and some discordant undertones to the Progressive themes sounded during that period. It should induce some changes in the way many students and scholars read the cases from that period.”—Mark Tushnet, Harvard Law School
Review
"As every law student know,
Lochner was a case in which a court packed with business sympathizers stuck it to the little guy in a shameless display of judicial activism. But, like a surprisingly large number of things everyone knows, this conventional wisdom is almost entirely wrong, and David E. Bernstein's new book,
Rehabilitating Lochner, makes clear just how wrong it is—and how and why the
Lochner narrative became established in the legal academy. . . . The false narrative of
Lochner has controlled the past for decades but Bernstein's clear and incisive work may wrest that control away and move us back to the truth."—Glenn Reynolds,
CommentaryReview
"Intellectual history in its highest form. . . . Bernstein has done nothing less than explode the myth of
Lochner, a decision that any pro-liberty student of American constitutional law should embrace. This is a book that will transform the way constitutional law is understood for years to come."
Review
“David E. Bernstein attempts the grand task of 'correcting decades of erroneous accounts' and succeeds with aplomb and notable timeliness. The story of how Joseph Lochner fought legislators and unions to bake his goods in freedom goes especially well with tea.”
Review
"
Rehabilitating Lochner is about a US Supreme Court decision that generations of lawyers and law students have been taught to scorn as the imposition of obsolete economic dogma disguised as constitutional principle. Comes now David E. Bernstein to set the record straight. . . . Not all will find unchallengeable every point the author makes. Yet all will broaden their understanding of our national charter and what the Supreme Court has done with it over the past century or so."—Walther Barthold,
New York Law JournalReview
“David E. Bernstein takes issue with conventional wisdom and argues that if one understands the larger context and broader stream of historical development, Lochner was a ‘good law at the time and, despite the fact that it was overruled, its core principles remain good constitutional law today. This is a delightful and informative book that deserves a broad audience.”
Review
"Rehabilitating Lochner does what it sets out to do very well, placing
Lochner in its historical context, telling us where it came from, what it actually did, who attacked it, and what those people believed. . . . I highly recommend it to anyone interested in the topic."—
Independent Review Review
"A sharp and iconoclastic work of scholarship, one that challenges the deepest beliefs of those who defend almost omnipotent government."—
Carolina JournalReview
"In this thought-provoking volume, David E. Bernstein attempts to “rehabilitate” the
Lochner decision and place it in its proper historical context. . . .The book is a valuable corrective. . . . Bernstein approaches the material with a fresh perspective and a cogent analysis that questions both the received wisdom about
Lochner and the categories that legal scholars have established to create distance between that era and our own, between judicial defense of civil rights and the judicial defense of economic liberties.”
Review
"This fresh and invigorating book is tightly argued in taut and well-wrought prose. It is dense with the insight available to those who spurn the conventional categories and perspectives which, as concerns the
Lochner Court, have been so encrusted—Bernstein rightly notes, by liberals and conservatives alike—as to harden into cliché. The book is not simply an armchair re-interpretion of
Lochner and its “era.” Despite its brevity, it adduces a raft of original source research in contemporaneous newspapers, law reviews, and reports of interest groups to advance its case. Unlike many libertarian scholars (who operate in ideological ghettoes), Bernstein fully engages with most of the important relevant scholarship, whatever its provenance, and endeavors to meet it directly. He opens up new avenues for historical research, and suggests fundamentally new ways of understanding crucial aspects of American constitutional history."
Ken I. Kersch
Review
“This well-written book is destined to be influential and controversial. . . . It is concise, lively, and one of the best examples of libertarian thinking about the Supreme Court’s role in limiting economic regulation.”
Review
"Somin's thorough rebuttal of the constitutional reasoning and philosophical implications of the Supreme Court's Kelo decision demonstrates why that ruling was a constructive disaster: It was so dreadful it has provoked robust defenses of the role of private property in sustaining Americans' liberty."
Review
andldquo;The Grasping Hand is likely to be the definitive analysis of the Supreme Courtandrsquo;s controversial decision in the Kelo case. But Somin attends to much more than that. He sets out the political and doctrinal history that led up to Kelo and critiques the legislative and judicial developments provoked by the reaction to it. Somin has long been a champion of strong property rights. What he has to say will be of value to those who share that commitment and perhaps even more to those who donandrsquo;t.andrdquo;
Review
andldquo;Somin is one of the worldandrsquo;s leading scholars on private property rights, and his analysis of the history of eminent domain and the Kelo decision is extremely thorough and insightful. But The Grasping Hand has something more than just solid legal history and reasoning. With its interviews with property owners and explorations of how eminent domain plays out in the real world, the book, unlike virtually all other scholarly works on eminent domain, compellingly communicates the human dimension and costs of governments teaming up with private interests to take the homes, small businesses, and other property of Americans.andrdquo;
Review
andquot;For anyone interested in the Kelo case, I recommend Sominandrsquo;s book. It is the first book-lengthand#160;discussion of the Kelo appellate proceedings by a legal scholar. It is also by far the most exhaustively researched history of the public use doctrine in the state and federal courts before and since Kelo.and#160;While I do not share Sominand#39;s opposition to the Kelo decision, I welcome his good scholarship on the subject.andrdquo;
Review
andquot;In this carefully researched and convincingly argued volume, Somin provides a powerful critique of the Supreme Courtandrsquo;s and#39;public useand#39; jurisprudence and the controversial Kelo decision. He also gives careful attention to the hostile public reaction to the ruling and points out that much of the post-Kelo reform legislation is inadequate to prevent future eminent domain abuse. This insightful book belongs on the shelf of anyone interested in the place of property rights in constitutional law.andquot;
Review
andquot;By dint of his uncommon thoroughness, Somin has become the leading and most persuasive critic of the Supreme Courtandrsquo;s ill-fated Kelo decision. His close examination of the caseandrsquo;s factual backdrop offers chilling confirmation of his central thesis: weak constitutional protection of property rights opens the door to political intrigue that exacts its greatest toll on the poor and vulnerable in society. Sominandrsquo;s gripping account confirms your worst fears about big government.andquot;
Review
andquot;[A] key contribution to the literature on property rights. I dare say that this is the most important book on eminent domain since Epsteinandrsquo;s classic, Takings. . . . [Sominand#39;s] voice is the voice of reason, precisely the kind of scholarship that is sorely needed in our polarized society. And this book is, today, the leading authority on Kelo.andquot;
Review
andldquo;Sharp legal, economic, and historical analysis of the eminent domain debate. . . . The Grasping Hand tells the story of the battle in fascinating detail. Somin succinctly recounts the facts that many readers will remember but adds a great deal of additional detail to show many ugly but unknown truths about it.andquot;
Review
andldquo;Somin provides a fine tour of the case and of the intellectual history of eminent-domain law. More important, he provides a framework for thinking about the future of eminent domain and private property. . . . Somin has written an important book that maps the road ahead for those who believe that individual freedom cannot be separated from the protection of private property.andrdquo;
Review
andldquo;Somin has written what is likely to be the definitive legal analysis of Kelo, its aftermath, and its future prospects. . . . The Grasping Hand is excellent at laying out the political and doctrinal developments that led up to Kelo and at canvassing the backlash and legislative response to it.andrdquo;
Synopsis
In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of
Lochner v. New York. This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial,
Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of
Lochner proponents as to the more expansive vision of its Progressive opponents.
Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.
Synopsis
In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for andldquo;public use,andrdquo; the Court ruled that the transfer of condemned land to private parties for andldquo;economic developmentandrdquo; is permitted by the Constitutionandmdash;even if the government cannot prove that the expected development will ever actually happen. The Courtandrsquo;s decision in
Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.
and#160;and#160;and#160;and#160;and#160; and#160;and#160;and#160;and#160;and#160;
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and andldquo;blightandrdquo; condemnations are unconstitutional under both originalist and most andldquo;living constitutionandrdquo; theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them.and#160; Moreover, the cityandrsquo;s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The Supreme Courtandrsquo;s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.
and#160;
Synopsis
Ilya Sominand#8217;s The Grasping Hand: Kelo v. New London and the Limits of Eminent Domain is the definitive review of one of the most controversial Supreme Court cases of the 21st century.and#160; Somin provides a thorough analysis of the caseand#8217;s historic and factual background along with the broader history of American public-purpose takings and the challenges posed by economic-development takings.and#160; The book offers a detailed account of the trajectory of the Kelo case itself, from the neighbors electing to fight their eviction through finding legal representation via a collection of strange-bedfellow public-interest groups.and#160; The litigatorsand#8217; strategies are examined and Somin brings us into the Supreme Court to scrutinize the thrust and parry of oral argument.and#160; Sominand#8217;s close reading and incisive critique of the Kelo opinion is the heart of the book.and#160; Holding that the Court made several serious doctrinal errors, Somin carefully parses the majority opinion, concurrences, and dissents to show where the Justices went wrong, and even offers some responsible speculation about why.and#160; A notably unpopular verdict, Kelo sparked significant political backlash.and#160; Somin takes a qualitative and quantitative tour through the large number of new state laws passed in the wake of Kelo, studying the mechanisms by which they were passed, their effectiveness, and public awareness of these new laws.and#160; The work concludes with recommendations toward reform, or prohibition, of takings justified on the premise of blight or hoped-for private economic development.
About the Author
and#160;Ilya Somin is professor of law at the George Mason University School of Law and an adjunct scholar at the Cato Institute. He is the author of Democracy and Political Ignorance: Why Smaller Government is Smarter. Sominandrsquo;s work has appeared in numerous academic and popular publications, including the Yale Law Journal, Los Angeles Times, and USA Today. He writes regularly for the popular Volokh Conspiracy blog, affiliated with the Washington Post.
Table of Contents
Acknowledgments
Introduction
1. The Rise of Liberty of Contract
2. The Lochner Case
3. Progressive Sociological Jurisprudence
4. Sex Discrimination and Liberty of Contract
5. Liberty of Contract and Segregation Laws
6. The Decline of Liberty of Contract, and the Rise of “Civil Liberties”
7. Lochner in Modern Times
Conclusion
Notes
Index