Kelo Attorney Fights for Life, Liberty, and Property

BY MAX AMSTER

The standing-room crowd for Institute for Justice attorney Dana Berliner.

The Harvard Federalist Society brought Dana Berliner, lead plaintiffs’ counsel in the recent landmark U.S. Supreme Court case, Kelo v. New London, to campus last Wednesday to speak about the legal fight against eminent domain and her role in that struggle as a senior property-rights litigator at the beltway-based nonprofit Institute for Justice. The standing-room-only crowd in Pound 106 was a testament to the popularity of the Federalist Society’s two staple promotional devices: scintillating discussion of flagrant examples of judicial irresponsibility and free pizza.

Ms. Berliner’s interest in abuse of eminent domain began in 1994 when she learned through a newspaper article that Donald Trump had pressured the New Jersey government into condemning the home of an elderly widow in Atlantic City so that he could build a limousine parking lot for one of his casinos. At the time there existed no comprehensive body of eminent domain precedent, either in state courts of the federal courts, and what did exist was “terrible law”.

According to Ms. Berliner, the constitution draws a “bright line” when it requires in the Fifth Amendment that takings be for a “public use”. She cited as examples of abuse two cases, one in which an Ohio Court declared a neighborhood “blighted” because it contained a cul-de-sac and “too many driveways which you had to back out of,” and another in which the Los Angeles city government tried to condemn the Oakland Raiders.

She began her fight by filing and litigating various state actions, developing a national-scale litigation strategy. These efforts culminated in her serving as lead counsel in the ultimate litmus test for eminent domain, the Kelo case. The case epitomized the view held by many on both the left and the right, that eminent domain is often used unconstitutionally by the self-anointed cognoscenti of city and municipals to further big business interests in the name of economic development.

In that case, a not-for-profit economic development corporation chartered by the state of Connecticut condemned waterfront residences, turning the land over to private developers, to provide condominiums and waterfront office space to Pfizer, the pharmaceutical giant. Ms. Berliner characterized the attitude of the 5-4 majority in the Court, which approved the takings, as “act[ing] like they don’t even care” about the issue, saying that Justice Kennedy’s concurrence sounded “sort of guilty” but was “largely incomprehensible”.

The event concluded with Ms. Berliner discussing the benefits of Kelo – most importantly that it brought the issue into the forefront of public discussion. The popular indignation which ensued after the Kelo decision was manifest in polls, in which 98% were opposed to the decision, and is responsible for the fact that 27 states have since changed their laws or their constitutions to ban such takings. She also answered questions relating to affordable housing and likely future eminent-domain litigation.

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