There were two good instances of students thinking like a lawyer in class when we discussed Kelo last year. We were talking about public use takings and common carrier/public-access such as on railroads and public utilities (e.g., electric and telephone).
And Justice O'Connor had said that a taking of a Motel 6 in order to transfer the land to a Ritz Carlton should not be recognized as a public use. I think she is right, but....
But isn't a Ritz open to the public, to anyone willing to pay its nightly room charge?
What about taking homes from Ms. Kelo and her neighbors in order to transfer the land for use as executive, upscale condominiums?
Both of these arguments were good examples of thinking like a lawyer. The condo argument, although a good one, falls short because once the land is sold to the owner of the condo it is not open to public access. It becomes a private home for whomever purchased the condo from the developer.
But the Ritz argument stands. Yet there seems to be something wrong about taking the land from one private hotel (the Motel 6) and transferring it to another, even if the second owner puts the land to a more profitable use.
What about a taking from a small independent grocer in order to sell the property to a Walmart? Public use? Walmart is open to the public, but....
Could the answer be that true public access takings involve public utility monopolies (or oligopolies) such as the railroad, the electric company, and the landline telephone/wifi company? Eminent domain is necessary to allow the public utilities to acquire large masses of private land to run their rails or their wires? The farther away we move from true public utilities to commercial businesses like the Ritz and Walmart, the less persuasive is the argument for public use takings.
