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CONTACT: Patrick Ross or Amy Smorodin
October 19, 2005
(202) 289-8928
Kelo Decision Could Impact IP Rights
PFF's DeLong Testifies On Capitol Hill

WASHINGTON D.C. - While the Supreme Court's Kelo v. New London decision caused a public uproar, there is a long history of misuse of eminent domain and regulatory takings power, explained James V. DeLong in testimony presented today at a House Subcommittee on Commerce, Trade, and Consumer Protection hearing, "Protecting Property Rights After Kelo." He views the implications of the decision in a broader context, encompassing both physical and intellectual property, and believes that the Court and Congress need to reject the distinction between personal and property rights.

DeLong, Senior Fellow at The Progress & Freedom Foundation and Director of the Center for the Study of Digital Property (, crafted his testimony around four major observations regarding the Kelo decision:

• Given the existing case law, the decision in Kelo was not a surprise.

• As property rights horror stories go, Kelo is second-rank. Ms. Kelo got paid for her property; there are uncounted numbers of regulatory takings for which no compensation is paid.

• The strong public reaction of antipathy to the result in Kelo was a surprise -- a pleasant and, hopefully, productive one.

• One's understanding of the implications of Kelo is enriched by viewing it in a more general context that includes rights to intangible and intellectual property as well as to real estate.

DeLong explains that the U.S. Supreme Court has effectively removed itself from judging what a state determines to be a legitimate public use and is "willing to accept as a 'public use' anything that claims an economic development rationale." Therefore, the Kelo decision was not unexpected. DeLong also stated that, while Susette Kelo was compensated for her property, there are a number of instances of "regulatory taking," of private property. He also notes that, "[a]s long as a government avoids actual physical seizure, and as long as it avoids a complete destruction of economic value, it can inflict huge losses on property owners. It can, in essence, seize their property for public or private benefit with no payment whatsoever."

DeLong views the strong public response to the Kelo decision as evidence of the public's willingness to let the market determine land use. "In other words, the American people think that the virtues of the free market and its invisible hand attach to land use as well as to other economic activities. The people are content with the idea that government does not bear total responsibility for urban perfection, and that for the most part we will, rightly, let our urban spaces grow organically." DeLong also identifies the public's present focus on intellectual property rights as a factor in the public outcry against the Kelo decision and a recognition of the concrete similarities between physical and intellectual property rights.

In his conclusion, DeLong cites the Supreme Court ruling on a 1972 case where it was established that "a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other." While the Supreme Court seems to have overlooked this principle, DeLong urges the Subcommittee to reject the distinction between personal and property rights.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation