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Supreme Court Economic Review




The Kelo decision provoked considerable legislative activity as 46 states adopted legislation on eminent domain in its aftermath. Only about half adopted restrictions that were more than symbolic, however. This paper examines those responses using a logistic regression analysis and finds that all else equal: (1) states where legislatures were more constrained by tax and expenditure limits were less likely to adopt substantive restrictions; (2) a larger number of Republicans in the state legislature made a state more likely to adopt a substantive restriction; (3) overall Republican strength (as measured by gubinatorial [sic] elections) made states less likely to adopt a substantive response, suggesting political competitiveness not ideology motivated action; (4) there was no evidence that measures of an electorate's overall ideology (with respect to environmental, liberal, or conservative causes) made a difference; (5) economically growing states were more likely to adopt substantive restrictions; and (6) greater degrees of inequality and larger African-American populations were not correlated with the type of response. Taken together, these results suggest a public choice model of legislative action, rather than an ideological one, with legislatures facing other constraints (e.g. TEL and slower growth) being less likely to give up valuable eminent domain powers and legislatures where adoption of real reform was less costly (faster growth) or more beneficial (more competitive political environments) more likely to do so.

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University of Chicago Press

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