Introduction

The first decade of the new century may prove to be a watershed in the evolution of both state powers and private property rights. The eminent domain powers of government for very broadly defined “public” purposes, including transfer to private developers, were reaffirmed in Kelo v. City of New London (545 U.S. 469 (2005)). While the decision was predictable, given precedents (e.g., Berman v. Parker 348 U.S. 26 (1954)), Kelo has served a dramatic political focal point, resulting in a widespread backlash against government use of eminent domain. This backlash has produced legislation in many states that at least appears to constrain takings powers. This Kelo backlash is actually part of a larger takings backlash, however. Regulatory takings through police power have also come under attack. This is exemplified by Oregon’s Measure 7 passed by voters in 2000. This measure was intended to amend the Oregon Constitution by mandating compensation for takings through land-use regulation. It was declared unconstitutional by the Oregon Supreme Court (League of Or. Cities v. Oregon, 56 P.3d 892 (Or. 2002)), but Oregon voters responded by passing Measure 37 in 2004, this time requiring compensation by amending Oregon statute law.1 This measure withstood court scrutiny. In 2006, Arizona passed a similar Measure. There has also been a revival of academic interest in the issues of eminent domain and regulatory takings, both among legal scholars and economists.