Today is the day that the Supreme Court gets a chance to reconsider its egregious Kelo decision by deciding whether or not to review the soon-to-be notorious Didden case. In Kelo, as the New York Sun trenchantly explains it, the nine permitted a definition of "public use" that was so vague that New London could seize property from one private owner to make way for another private owner to build a shopping center. The effect of Kelo was to revive the notorious practices behind the urban renewal efforts of the 1960s that did so much to uproot African-American and ethnic neighborhoods at great social and economic cost to the cities. Shortly after the Kelo judgment, one John Stevens, the liberal author of the majority opinion, expressed regret at having handed down such a decision.

In the Didden case the village of Port Chester, NY (New York is one of 18 states that haven’t moved legislatively to effectively overturn Kelo) effectively handed its powers of eminent domain over to a developer who then used that authority to try and shake down property owners who were about to build a Walgreens. The 2nd U.S. Circuit Court of Appeals used last the Kelo decision as a basis for a decision backing the village's power play.

Like ACLUers, orthodox Hayekians assume that citizens can be protected from this sort of public abuse by drawing bright lines defining what does or doesn’t constitute public use. Both groups want to eliminate the possibility of officials exercising discretion.  But the problem with bright lines is that no matter how pure the intentions, any set of rules can be gamed so that in the end there is no substitute for discretion and judgment.

This point is made in Let There Be Blight, an engaging op-ed piece in Thursday’s Wall Street Journal, in which William Maurer describes the machination of the town government of  Burien Washington. The town government wanted to displace a popular diner to make way for its redevelopment scheme. Rather than risk a law suit if they used their powers of eminent domain to seize the property only to hand it over to a private developer, they decided to run a road through the diner—all in the name of serving public uses, of course. “A trial court,” notes Maurer, “concluded that the city's actions might be "oppressive" and "an abuse of power"—but allowed the condemnation anyway. The Washington Court of Appeals affirmed, and the Washington Supreme Court refused to hear the case.  That leaves matters in the hand of our nine legislators in robes.