Abstract
Since Kelo v. City of New London, the preferred
litigation strategy for challenging a condemnation that benefits a
private party is to allege that the taking is "pretextual."
This Article contends that, although pretextual takings are socially
undesirable, the current judicial test for identifying such takings
is problematic. Yet an alternative, intent-based test might be impracticable,
as well as underinclusive: condemnors often have mixed motives, particularly
when confronted with a firm's credible threat to relocate. Instead,
the Article develops a framework that emphasizes informational differences
between local governments and private developers. When the government
lacks information regarding the optimal site for an assembly, the
government may need to rely on a private party to identify,
as well as develop, a particular site. However, when the government
itself possesses information regarding the site, pre-condemnation
private involvement, as well as post-condemnation involvement by a
preferred developer, is generally unnecessary. Such involvement increases
the likelihood of a pretextual transfer without any corresponding
public benefit. The Article concludes that a burden-shifting framework,
analogous to Title VII's test for identifying pretext, can be
adopted in the takings context. The new framework is then applied
to several situations in which allegations of pretext are likely to
arise.