The I am grateful for the opportunity to address the importantissue of constitutional property rights before this Committee. Iwould like to thank Chairman Leahy, Ranking Member Sessions, andthe other members.
As President Barack Obama has written, "[o]ur Constitutionplaces the ownership of private property at the very heart of oursystem of liberty."1 The protection of property rights was one of themain objectives motivating the establishment of theConstitution.2 Unfortunately, the Supreme Court has often relegatedproperty rights to second class status, giving them far lessprotection than that extended to other constitutionalrights.3 Ihope that the Committee's interest in this issue will ultimatelyhelp change that.
The purpose of my testimony is to analyze Judge SoniaSotomayor's two most important constitutional property rightsdecisions: Didden v. Village of Port Chester4 and Krimstock v.Kelly.5 Part I briefly sets the stage for the discussion ofDidden by summarizing the Supreme Court's controversialdecision in Kelo v. City of New London,6 and the politicalreaction it generated. In Part II, I consider the Diddencase itself, which goes even further than Kelo in givinggovernment a virtual blank check to undertake even the most abusiveof condemnations.7Didden raises serious questions about JudgeSotomayor's willingness to protect property owners' constitutionalrights under the Takings Clause.8
Finally, Part III briefly considers Krimstock, a casewhere Judge Sotomayor authored an opinion providing importantprotection for the property rights of suspects in criminalinvestigations. Although Krimstock was not a close case inmy view, it is of some importance because the issue it addressedwill be considered by the Supreme Court this fall in Alvarez v.Smith.9
In this testimony, I take no position on Judge Sotomayor'soverall qualifications for a seat on the Supreme Court. Although Ifind some aspects of her judicial philosophy troubling, she is acapable jurist with an inspiring life story. My purpose here is tohelp ensure that proper consideration is given to property rightsissues, including some disturbing aspects of Judge Sotomayor'srecord on these questions.
I. THE KELO DECISION AND ECONOMIC DEVELOPMENTTAKINGS.
The Supreme Court's 2005 decision in Kelo v. City of NewLondon and the controversy it generated are the essentialbackground to Judge Sotomayor's ruling in Didden. TheTakings Clause of the Fifth Amendment to the Constitution requiresthat property can only be condemned for a "public use." Traditionalpublic uses include those where the condemned land is actually"used" by the public either by building a government-ownedstructure on it (such as a road or a bridge), or by constructing aprivately owned facility that the owner is required to allow thegeneral public to utilize, as a matter of law - such as a publicutility.
In Kelo, the Supreme Court ruled that the condemnationof private property for transfer to another private party in orderto promote "economic development" was a permissible "public use"under the amendment; indeed, it ruled that virtually any potentialbenefit to the public counts as a "public use."10 The Court upheldthe condemnation despite the fact that the condemned property wouldnot be owned by the government, the general public would have noright of access to it, and there was no legal requirement that thenew private owners actually produce the promised "economicdevelopment" that supposedly justified the takings in the firstplace. Kelo was arguably consistent with two previousSupreme Court decisions that defined "public use" verybroadly.11 But it was at odds with the text and originalmeaning of the Fifth Amendment, which do not conflate "public use"with potential "public benefit."12 It also placed undue faith in thewillingness of government officials to protect the constitutionalproperty rights of poor and politically weak. As historian and lawprofessor James W. Ely, Jr. has written, "among all the guaranteesof the Bill of Rights, only the public use limitation is singledout for heavy [judicial] deference" to the very governmentofficials whose abuses of power it is meant toconstrain.13
Takings that transfer property to private owners pose greaterrisk of abuse than condemnations for traditional public uses, suchas government-owned facilities. Private-to-private takings enablegovernments to condemn property for the benefit of politicallyinfluential interest groups. They are also far less likely to beneeded to overcome "holdout" problems. Private developers who seekto assemble land for projects that provide genuine economicbenefits can generally do so without using the power of governmentto force current owners to sell.14
A. Dangers of Unconstrained Eminent DomainPower.
Judge Sotomayor has said that she "strive[s] never to forget thereal-world consequences of [her] decisions."15 The real world consequencesof judicial failure to enforce public use limitations on takingsare bleak. Perhaps the most important shortcoming of economicdevelopment condemnations is that they are often used to transferproperty from the politically weak to the politicallypowerful.16 It is not accidental that the Kelocondemnations were in large part instigated by the influentialPfizer Corporation, which stood to benefit from them.17 Similarly, thefamous 1981 Poletown condemnations - in which some 4000 people wereforcibly expelled from their homes in a Detroit neighborhood inorder to transfer property to General Motors to build a new factory- also benefited locally powerful interests such as the United AutoWorkers labor union and of course General Motors itself. In bothcases, the people displaced were mostly poor or lower middle classresidents and small businesses with little politicalinfluence.18 It is difficult to imagine an economic developmentcondemnation that transfers property from a powerful interest suchas Pfizer or GM to people with little political power, and thereare few if any such cases on record. Since World War II, hundredsof thousands of Americans - most of them poor and lacking inpolitical influence - have been forcibly displaced by economicdevelopment, urban renewal, and "blight" condemnations of the sortlicensed by Kelo and previous Supreme Court decisions thatallow government to condemn virtually any property.19 As the NationalAssociation for the Advancement of Colored People and other civilrights groups pointed out in an amicus brief they filed in supportof the property owners in Kelo, economic developmenttakings continue to disproportionately victimize poor and ethnicminority property owners.20
Since economic development takings are often driven by politicalrather than economic considerations, it is not surprising that theygenerally fail to produce the economic development that supposedlyjustified them in the first place.21 By destroying existingbusinesses, homes, churches, and schools, they often inflicteconomic damage on communities that outweighs whatever benefitsthey create. The problem is exacerbated by the fact that, in mostcases, neither the condemning authority nor the new private ownerof the condemned property is under any legal obligation to actuallyproduce whatever economic benefits were promised as justificationfor the taking. Predictably, this state of affairs gives publicofficials and corporations an incentive to inflate claims ofprojected economic benefits, which are then used as justificationsfor condemnation.22
In theory, voters could potentially monitor economic developmenttakings and punish public officials who approve abusivecondemnations at the polls. In practice, such case-by-case publicmonitoring is often difficult or impossible.23 Many condemnations arecomplex affairs that take place out of the public eye. Moreover, itrarely becomes clear whether an economic development has reallyproduced any benefits until years after the fact. By that time,public attention is likely to have moved on to other issues, andthe offending political leaders are unlikely to be punished at thepolls as a result. For example, the 1981 Poletown condemnationsmentioned above never produced more than a fraction of the 6000jobs that were promised. But this fact did not become clear untilthe late 1980s, and the political leaders who approved thecondemnations never suffered any significant politicalpunishment.24
B. The Public Reaction to Kelo.
Kelo led to a massive political backlash against eminent domainabuse, with over 80% of the public disapproving of the decision.The ruling was also denounced by many political leaders andactivists from across the political spectrum, including RalphNader, Democratic Representative Maxine Waters, and formerPresident Bill Clinton.25 Since Kelo, forty-three states haveenacted reforms that purport to constrain the use of eminent domainfor "economic development."26 Unfortunately, the majority of the new lawsare likely to have little or no effect because they allow economicdevelopment condemnations to continue under other names, usually bymeans of blight condemnation statutes that define "blight" sobroadly that virtually any area qualifies.27 In these states,post-Kelo reform is likely to have little impact becausethe new laws don't actually impose any meaningful restraints oneminent domain. "Business as usual" will probably continue underanother name. For that reason, judicial protection for propertyrights remains critical, especially with respect to the rights ofpoor and politically weak populations.
II. THE DIDDEN CASE.
A. Factual Background.
In 1999 the village of Port Chester, N.Y., established a"redevelopment area," giving designated developer Gregg Wasser avirtual blank check to condemn property within it. When localproperty owners Bart Didden and Dominick Bologna sought a permit tobuild a CVS pharmacy in the area, Wasser demanded that they pay him$800,000 or give him a 50 percent partnership interest in thestore, threatening to have their land condemned if they said no.They refused, and a day later the village condemned theirproperty.
Didden and Bologna challenged the condemnation on the groundthat it was not for a "public use," as the Constitution's FifthAmendment requires. Their argument was simple and compelling:extortion for the benefit of a private party is not a public use.Nevertheless, in a short, cursory opinion, Judge Sotomayor's panelupheld the condemnation.
To be sure, Wasser disputed part of Didden and Bologna's accountof the facts. He claimed that in addition to offering Didden andBologna the options of paying him $800,000 or giving him a 50%stake in their business, he also offered to buy the land from themin exchange for an $800,000 payment from him. Wasser's proposal wasextortionate even if he was telling the truth. If Wasser's versionof events is correct, he in effect gave Didden and Bologna twooptions: pay him $800,000 or 50% of the proceeds of their projectfor the right to proceed with the construction of a CVS on theirland, or transfer the land to him in exchange for an $800,000payment from Wasser, in addition to the fair market value of theproperty (ultimately estimated to be $975,000).
If Wasser did make that additional offer, it was actually evenless generous to Didden and Bologna than the demand for a paymentof $800,000. Wasser himself had estimated the potential profitsfrom the drug store project at $2 million. If the owners hadaccepted this third proposal, they would have given up a total of$2.975 million ($2 million from the drug store project and $975,000in fair market value) in exchange for $1.775 million - a total lossof $1.2 million. Under Wasser's supposedly more generousalternative offer, he would have gained 50% more in extortion moneythan he would have obtained had Didden and Bologna given in to hisalternative demand for a simple payment of $800,000.
If a Mafia don approaches a business owner says that he willbreak his legs unless the victim either 1) pays him $800,000, 2)gives him a 50% stake in his business or 3) sells him the land at aprice $1.2 million below its value, that would surely be extortion.Wasser's offer was exactly the same, except that his leverage wasbased on the threat of condemnation rather than breaking theowner's legs. If this is not extortion using the threat of eminentdomain as leverage, then nothing is.
In any event, Judge Sotomayor's panel was required to assume thetruth of Didden and Bologna's version of events. The Second Circuitwas reviewing the district court's ruling on the Village's motionto have the plaintiffs' case dismissed before going to a jury onthe ground that they had no possible legal basis for their suitunder the Federal Rule of Civil Procedure 12(b)(6). Whenconsidering such "a motion to dismiss, the facts in the complaintare presumed to be true, and all reasonable inferences are drawn inthe plaintiff's favor."28 What is most frightening about the panel'sruling is that it apparently concluded that Didden and Bologna hadno case even if their account of the facts was true.
B. Legal Implications for Property Rights.
1. Didden holds that even the most abusive "pretextual"takings are constitutional.
Didden is probably the most extreme anti-propertyrights ruling by any federal court since Kelo. It goesbeyond Kelo in gutting protections for property ownersagainst abusive takings. It is also striking that Judge Sotomayorand her colleagues not saw fit to dispose of this important case ina brief, unpublished summary order.
Although based partly on Kelo's very broad definitionof "public use,"29Didden actually exceeded it. Indeed, itvalidated precisely the sort of egregiously abusive pretextualcondemnation that even the Kelo majority considered to beunconstitutional. A pretextual condemnation occurs when theofficial purpose of the taking is actually just a pretext for aneffort to benefit a private party. Justice John Paul Stevens'opinion for the Court noted that "the mere pretext of a publicpurpose, when its actual purpose was to bestow a private benefit,"was not enough to count as a "public use."30 As an example of such anunconstitutional pretextual taking, he cited a case with far lessextreme facts than Didden-a California district courtruling invalidating the condemnation and transfer of a 99 Centsstore to Costco.31 The taking had been rationalized on the ground thatCostco might produce more tax revenue and economicgrowth.32
Like the Didden property, the 99 Cents store was located in aredevelopment area subject to a development plan.33 The rationale forthe 99 Cents condemnation and transfer was at least plausible,since the upscale Costco store might have generated more economicactivity than the 99 Cents store, and hence a public benefit.Nonetheless, the Supreme Court described the 99 Cents condemnationas unconstitutional because it was "a one-to-one transfer ofproperty, executed outside the confines of an integrateddevelopment plan."34 In Didden, by contrast, there was noplausible public benefit. Wasser's plan for the condemned land wasto build a Walgreens pharmacy-virtually identical to Didden andBologna's plan to build a CVS pharmacy.35 In any event, Didden andBologna's land would not have been condemned but for their refusalto pay Wasser the money he demanded. As in 99 Cents, the mere factthat a taking occurred in a redevelopment area should not have ledthe court to conclude that anything goes. Under Kelo, ataking within a redevelopment area can still be invalidated aspretextual.
Nearly all economic development takings occur in redevelopmentareas of one type or another. If the mere existence of aredevelopment area licenses otherwise pretextual takings, thenproperty owners are left completely unprotected against even themost abusive condemnations.36
For these reasons, Didden was a grave error thatundermined even the modest protection for property owners mandatedby Kelo. Since Kelo was decided, there has beenconsiderable disagreement over the question of what sorts ofcondemnations are to be invalidated as "pretextual."37 But if this casewas not an unconstitutional pretextual condemnation, it is hard tosee what would be. A judge unwilling to invalidate the condemnationof property for purposes of blatant extortion is unlikely toprotect property owners in less extreme takings cases.
A final disappointing aspect of Didden is the way inwhich the panel disposed of this important constitutional issue ina single sentence that offered virtually no analysis:
[E]ven if Appellants' claims were not time-barred, tothe extent that they assert that the Takings Clause prevents theState from condemning their property for a private use within aredevelopment district, regardless of whether they have beenprovided with just compensation, the recent Supreme Court decisionin Kelo v. City of New London . . . obliges us to concludethat they have articulated no basis upon which relief can begranted.38
Judge Sotomayor and her colleagues offer no defense of theirconstitutional ruling other than a misleading claim that it wasrequired by Kelo - an unsupported assertion that simplyignores the Kelo Court's admonition that pretextualtakings remain illegal.
2. The statute of limitations issue.
In addition to rejecting Didden and Bologna's constitutionalargument, Judge Sotomayor's panel also ruled that their claim wastime-barred because it exceeded the relevant three year statute oflimitations. This, however, in no way vitiates the extreme natureof the decision.
First, it is essential to recognize that the panel clearly didrule on the substantive issue as well.39 Thus, even if they were correcton the statute of limitations issue, they still committed a graveerror in their ruling on the vastly more important constitutionalquestion.
Second, the Second Circuit's conclusion that the propertyowners' claim was time-barred is completely dependent on theirsubstantive ruling that a condemnation enacted within aredevelopment area cannot be invalidated as pretextual. The panelruled that Didden and Bologna were required to challenge thecondemnation of their property within three years after itsinclusion in a redevelopment area in July 1999. But their propertywas not condemned at that time and Wasser did not make hisextortionate threats until November 2003. Until then, it wasimpossible to file a pretextual taking claim because no pretextualtaking had yet occurred or even been threatened. Judge Sotomayor'spanel ruled that Didden and Bologna's case was time-barred becauseit assumed that there is no legal difference between the meredeclaration of a redevelopment area and the use of condemnation forpurposes of extortion. The panel's seemingly technical proceduralruling was actually based on a serious substantive error.
III. KRIMSTOCK V. KELLY
Judge Sotomayor's opinion in Krimstock v.Kelly,40 her other significant property rights ruling, ismuch better than the summary order in Didden. InKrimstock, she wrote an opinion invalidating New YorkCity's policy of seizing and holding vehicles owned by suspectsaccused of DUI and other offenses, and then retaining them formonths or years at a time without allowing the defendants tochallenge the seizures in any kind of legal proceeding.
Judge Sotomayor correctly ruled that this policy violates theDue Process Clause of the Fourteenth Amendment, which mandates thatcitizens cannot be deprived of life, liberty, or property without"due process of law." One can certainly argue about how muchprocess is "due" in any given situation. But surely it is aviolation of the Clause for the state to deprive citizens ofvaluable property for many months without any judicial processwhatsoever. That is especially true if the deprivation imposes asubstantial burden on the owner, as is often the case when theproperty seized is a car. Perhaps little or no process should berequired for a very small deprivation of property; but surely moreis "due" when the owner suffers serious harm as a result of thegovernment's seizure of her possessions. For these reasons, it ishard to dispute Judge Sotomayor's conclusion:
A car or truck is often central to a person'slivelihood or daily activities. An individual must be permitted tochallenge the City's continued possession of his or her vehicleduring the pendency of legal proceedings where such possession mayultimately prove improper and where less drastic measures thandeprivation pendente lite are available andappropriate.41
The Krimstock case is similar to the recent SeventhCircuit decision in Alvarez v. Smith,42 which will heardby the Supreme Court this fall. Krimstock may actuallyhave been a slightly less egregious case because three of theowners of the vehicles in Alvarez had not even been charged with acrime,43while the seven plaintiffs in Krimstock had pleaded guiltyto the charge of driving while impaired (though forfeiture ofproperty was not part of the legally mandated sentence for thisoffense).44
Judge Sotomayor also participated in another ruling thatupholding minimal procedural Due Process Clause rights for propertyowners. In Brody v. Village of Port Chester, she was on apanel that held that property owners subjected to takings wereentitled to individualized notice of the government's plan tocondemn their property and the time limit for challenging it incourt.45
In my view, Krimstock and Brody are relativelyeasy cases. Surely holding onto valuable property for years at atime with no legal process at all is not "due process" under anydefensible definition. Similarly, even a minimalist interpretationof the Due Process Clause requires that property owners be givennotice of a city's decision to condemn and the time period forchallenging it; otherwise, they could easily be deprived of anyopportunity to present their case whatsoever. However, the factthat the Supreme Court decided to hear Alvarez and may end upreversing it suggests that we cannot take anything for granted.Therefore, Judge Sotomayor does deserve some substantial credit forher opinion in Krimstock.
Krimstock is a praiseworthy decision. But it does notfully offset Judge Sotomayor's deeply flawed ruling inDidden. For reasons described above, judicial enforcementof Public Use Clause limitations on takings is vital for protectingthe rights of property owners, particularly the poor andpolitically weak. The procedural Due Process Clause protectionsJudge Sotomayor enforced in Krimstock and Brodyhave great value. But ultimately, they are less significant thanthe constitutional rules that prevent government from taking homes,businesses and other property without any legitimate public use.For property owners, there is only limited consolation in the factthat the government must provide notice and a hearing before ittakes their land for the benefit of well-connected privateinterests.
1BARACK OBAMA, THE AUDACITY OF HOPE 149 (2006).
2 See,e.g., JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OFAMERICAN CONSTITUTIONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY(1990) (emphasizing centrality of property rights for theFounders); Stuart Bruchey, The Impact of Concern for the Securityof Property Rights on the Legal System of the Early AmericanRepublic, 1980 WIS. L. REV. 1135, 1136 (noting that Perhaps themost important value of the Founding Fathers of the Americanconstitutional period, 'was their belief in the necessity ofsecuring property rights.''
3 Ihave summarized the second class status of property rights incurrent Supreme Court jurisprudence in Ilya Somin, Taking PropertyRights Seriously? The Supreme Court and the "Poor Relation" ofConstitutional Law, in THE UNITED STATES SUPREME COURT: CONTESTEDCONSTITUTIONAL DOCTRINES (Steven Kautz, Arthur Melzer, and JerryWeinberger, eds., forthcoming) , available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1247854.
4 173Fed. Appx. 931 (2d Cir. 2006).
5 306F.3d 40 (2d Cir. 2002).
6 545U.S. 469 (2005).
7 Partof my analysis of Didden is based on an amicus brief Icoauthored on behalf of seven prominent property law professorsurging the Supreme Court to hear the case and reverse the SecondCircuit's decision. See Didden v. The Village of PortChester, 2006 WL (U.S. Dec. 8, 2006), Amicus Br. of LawProfessors D. Benjamin Barros, Eric R. Claeys, Viet D. Dinh, StevenJ. Eagle, James W. Ely, Jr., Richard A. Epstein, Adam Mossoff, andIlya Somin in Support of Petitioners.
8Although Didden is an unsigned, unpublished summary order,my understanding is that, in the Second Circuit Court of Appeals,such orders are usually drafted by the senior active judge on thepanel, which Judge Sotomayor was in this case. In any event, sheclearly assented to the panel opinion.
9 Smithv. City of Chicago, 524 F.3d 834 (7th Cir. 2008), pet. cert.granted, Alvarez v. Smith, 129 S.Ct. 1401 (2009).
10Kelo v. City of New London, 545 U.S. 469,473-78 (2005).
11See Hawaii Housing Auth. v. Midkiff 467 U.S. 229, 241(1984) (ruling that takings are for a public use if they are"rationally related to a conceivable public purpose"); Bermanv. Parker, 348 U.S. 26, 32 (1954) (holding that thelegislature has well-nigh conclusive" power to define public use asit sees fit).
12See James W. Ely, Jr., "Poor Relation" Once More: The Supreme Courtand the Vanishing Rights of Property Owners, 2005 CATO SUP. CT.REV. 39, 40-43 (describing early American jurists' rejection of theidea that eminent domain can be used to transfer property from oneprivate party to another without giving the general public anyright to use it).
13Id. at 62.
14For a compelling explanation of the reasons why eminent domain isnot needed to overcome holdout problems that might impeded privatedevelopment, see Daniel B. Kelly, The "Public Use" Requirement inEminent Domain Law: A Rationale Based on Secret Purchases andPrivate Influence, 92 CORNELL L. REV. 1 (2006); see also IlyaSomin, Controlling the Grasping Hand: Economic Development TakingsAfter Kelo, 15 SUP. CT. ECON. REV. 183, 203-209(2007).
15Quoted in Peter Baker & Jeff Zeleny, Obama Hails Judge as"Inspiring," N.Y. TIMES, May 26, 2009, at A1.
16For a more in-depth discussion of this issue, see Somin,Controlling the Grasping Hand, at 190-203.
17See Ted Mann, Pfizer's Fingerprints on Fort Trumbull Plan, THE DAY,Oct. 16, 2005. For a detailed recent account of Pfizer's role, seeJEFF BENEDICT, LITTLE PINK HOUSE: A TRUE STORY OF DEFIANCE ANDCOURAGE (2008).
18For details on the Poletown case, see Ilya Somin, OvercomingPoletown: County of Wayne v. Hathcock, Economic DevelopmentTakings, and the Future of Public Use, 2004 MICH. ST. L. REV.
19See Ilya Somin, Blight Sweet Blight, LEGAL TIMES, Aug. 14, 2006, at42.
20See Kelo v. City of New London, Amicus Br. of NAACP,American Association of Retired Persons, & Southern ChristianLeadership Conference, 2004 WL 2811057. This paragraph summarizespoints made in greater detail in Somin, Controlling the GraspingHand, at 192-204.
21This paragraph summarizes points made in greater detail in Somin,Controlling the Grasping Hand, at 192-204.
22Id., at 197.
23Id. at 201-203.
24Somin, Overcoming Poletown, at 1022-23.
25Ilya Somin, The Limits of Backlash: Assessing the PoliticalResponse to Kelo, 93 MINN. L. REV. 2100, 2108-13(2009).
26Id. at 2101.
27Id. at 2114-37. Similarly broad definitions of blight have beenused to condemn perfectly normal areas for years. For example,courts have ruled that such unlikely locations as Times Square anddowntown Las Vegas are blighted. See Somin, Blight, SweetBlight.
28EEOC v. Staten Island Sav. Bank, 207 F.3d144, 148 (2d Cir. 2000).
29See Kelo, 545 U.S. at 473-78 (holding that any potential"public benefit" counts as a "public use").
30Id. at 478.
31Id. at 487 n. 17 (citing 99 Cents Only Stores v. LancasterRedevelopment Agency, 237 F. Supp. 2d 1123 (C.D. Cal. 2001), app.dismissed as moot, 2003 WL 932421 (9th Cir. Mar. 7, 2003).
32 99Cents, 237 F. Supp.2d at 1128-30.
33Id. at 1130 (noting that the condemnation was part of the "AmargosaRedevelopment Plan" in the "Amargosa Project Area").
34Kelo, 545 U.S. at 487 n. 17.
35Didden v. Village of Port Chester, 304 F.Supp. 2d 548, 552 (S.D.N.Y. 2004).
36Cf. Somin, Controlling the Grasping Hand, at 228-29.
37For a survey of the relevant cases, see Daniel B. Kelly, PretextualTakings: Of Private Developers, Local Governments, andImpermissible Favoritism, 17 SUP. CT. ECON. REV. 173 (2009).
38Didden, 173 Fed Appx. at 933 (somecitations omitted).
39See id. (stating that "even if Appellants' claims were nottime-barred, to the extent that they assert that the Takings Clauseprevents the State from condemning their property for a private usewithin a redevelopment district, regardless of whether they havebeen provided with just compensation, the recent Supreme Courtdecision in Kelo v. City of New London . . . obliges us toconclude that they have articulated no basis upon which relief canbe granted").
40306 F.3d 40 (2d Cir. 2002).
41Krimstock, 306 F.3d at 44.
42Smith v. City of Chicago, 524 F.3d 834 (7thCir. 2008), pet. cert. granted, Alvarez v. Smith, 129S.Ct. 1401 (2009).
43Smith v. City of Chicago, Plaintiffs'Br.,2007 WL 1706653 at 10-12.
44Krimstock, 306 F.3d at 45-46.
45434 F.3d 121 (2d Cir. 2005).