We have our merry band of bloggers here at DOL. I would guess that most readers are familiar with The Institute for Justice, which has their merry band of litigators defending individual rights and the rule of law. IJ has always done important work, but recently they've landed an impressive string of blows in the proverbial good fight.

You know about the Kelo case, which was a nominal defeat but fueled a backlash that, by the time it runs its course, may end up strengtheninig property rights. More detail on this below the fold.

Since Kelo, IJ has won a development takings case before Ohio's Supreme Court, Norwood v. Horney, the first of its kind to reach a state supreme court after Kelo. If you're into the whole Stackelberg leader idea, this is an important signal to courts in other states.

IJ has also meticulously documented the extent of eminent domain "abuses" (roughly, takings for economic development purposes). Two reports by IJ senior attorney Dana Berliner, one pre-Kelo and one post-Kelo, count the state-by-state filings of eminent domain for economic development, from 1998 through middle of 2006. Good stuff.

IJ's current splash is their new lawsuit against the city of Riviera Beach, Florida. The scenario is familiar. The mayor and city council expanded the city's redevelopment area, hired a big developer to put in a new fashionable multi-use complex, and threatened eminent domain on lont-time property owners to pave the way. IJ filed suit on behalf of four property owners yesterday.

Last week, IJ Senior Attorney Scott Bullock was out at San Jose State to give a Kelo lecture. He did a great job fielding questions, everything from Austrian-subjectivist critiques of "just compensation", to 14th Amendment selective incorporation stuff, to how the Roberts Court might have decided Kelo.

Like Richard Posner, IJ seems to be okay with eminent domain for "traditional public uses" under holdout problems. Others are more hawkish, such as Bruce Benson's article in The Independent Review undermining the holdout justification. Even for right-of-way, holdout-likely, traditional public uses, eminent domain poses serious problems for efficiency and for giving property owners the right incentives. Yesterday in Tehachapi, California, a homeowner had this to say about his struggle with the city over a proposed road (article).

“We’ve been notified that the road [Pinon Street] goes through our garage and the city has told me there’s nothing I can do about it,” Timothy Dunn said to the council...."If you take my garage, you take my whole property. Someone’s going to pay for the stress,”...

IJ has a knack for choosing sets of facts that will lead to larger ramifications when brought to court. In general, I think IJ deserves a fresh round of props for doing good work on many fronts, including and especially to stem the tide of development takings.

So far about 30 state legislatures have passed or enacted legislation to curb eminent domain. In some western states (most notably prop 90 in CA), ballot propositions would curb regulatory takings as well. Not all the state laws impose actual constraints, but are instead symbolic gestures to an agitated electorate. Timothy Sandefur has a nice detailed analysis in his Michigan State Law Review article. In this paper (forthcoming in The Independent Review), my co-author and I analyze the backlash and conclude with a guardedly optimistic outlook:

If state legislatures can eschew symbolic politics and lobbying pressure from organized interests, an important effect of Kelo will be to restrict government’s ability to seize land for economic development, thus empowering policymakers to reconcile their own interests with those of “all members in the social group” (Buchanan and Tullock 1962, 23).

In the bigger picture, Kelo may strengthen property rights.