March 17, 2008 | Vol. XI, Issue 25

Merrill Discusses Eminent Domain In First Annual Wolf Family Lecture In American Law Of Real Property

By Rachel Attal

Columbia University Law Professor Thomas W. Merrill cautiously encouraged the use of eminent domain to be determined by local referendum at the first annual Wolf Family Lecture in the American Law of Real Property on Feb. 22. The lecture, entitled “Populism and Public Use,” examined the role and consequences of popular constitutionalism in regards to deciding the use of eminent domain.

Merrill (pictured left with Professor Michael Allan Wolf and Wolf's wife Betty) examined the hostile public backlash concerning the U.S. Supreme Court’s decision in the Kelo v. City of New London case involving an economic development project. The Supreme Court upheld the use of eminent domain because it determined that the property qualified as a public use and thus the use of eminent domain was permissible.

Even though the decision caused an immediate uproar from the U.S. House of Representatives, which passed a resolution condemning the decision the following day, Merrill thought the public outrage would soon cease. However, his assumption was inaccurate and the consequences of the decision have continued. The public opinion of the use of eminent domain is that it has not been properly handled by the courts or state legislatures, Merrill said. As a result, many states have taken matters into its own hands.

Opinion polls showed that 80 percent to 90 percent of people disagreed with the Supreme Court’s decision; and as a result, there were 10 public referendums in various states during the November 2006 election, and the eight pure anti-Kelo measures passed by comfortable margins, Merrill said. “There is some evidence that the closer the decision is to the people via referendum, the more uniformly anti-Kelo, anti-eminent domain the response tends to be.”

The public backlash gave a glimpse into the possible use of popular constitutionalism when deciding contested constitutional issues. The argument entails that constitutional issues should not be decided by the courts or elected officials, but by the people themselves, Merrill said.

Merrill discussed the conflicting principles of eminent domain. On one hand, eminent domain is crucial to help protect ecological sites and fight urban sprawl, but the dissenting opinion views eminent domain as unfair because it provides incomplete compensation for land and undermines general property rights.

When trying to develop a plan to balance the two values, Merrill concluded it is a complicated task. “There is no clear right answer of how to balance these conflicting values.” As a result, Merrill cautiously advocates that this issue needs to be decided by the people at a local level.

He said the experiment would be a risk but insists it’s worth it to decide the issue that has not been properly handled by the Supreme Court or state legislatures. Merrill believes that the eminent domain debate should be decided by local referenda, but it is important to insure the people making the decision are knowledgeable and well informed regarding the issue.

The lecture series was endowed by a gift from UF Law Professor Michael Allan Wolf and his wife Betty. Wolf, the Richard E. Nelson Chair in Local Government Law, is the general editor of a 17-volume treatise, “Powell on Real Property,” the most utilized treatise in the country in the area, which is cited regularly by the courts, including several recent citations in the U.S. Supreme Court. The treatise is a legal source that lawyers, law professors and judges have relied upon for over half a century.

Home | Email to a friend | Print article | Contact FlaLaw Online