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THE SUPREME COURT'S 1954 decision in Berman v. Parker1 serves as the foundation for much of our modern eminent domain jurisprudence. But the story behind the case starts well before 1954. It is a story that has played out in many cities across the nation, just as it did in Washington, D. C, where the case arose. It is the story of urban decay and urban renewal.
Urban renewal was not a new concept prior to Berman v. Parker;2 Baron Georges Haussman had transformed Paris' logements insalubres3 during the latter half of the nineteenth century4 and Mussolini had cleared wide swaths of Rome during the 1920s and 1930s, demolishing lower class neighborhoods in the process.5 Some American cities had also experimented with urban renewal. Washington itself had cleared an area known as "Murder Bay" in the 1920s and rebuilt it with federal buildings.6 But in the years following Berman v. Parker, urban renewal was undertaken on a vastly larger scale. Hundreds of thousands of Americans were displaced from their homes, and cities were remade with modern architecture and highways. The social impacts of urban renewal were huge, as lower class and often minority families were moved out of center cities to make room for uses that would generate higher tax revenues.
Although Berman v. Parker would have lasting and far-reaching effects, the Supreme Court's treatment of the issues was limited. Indeed, Berman v. Parker has come to stand for the exceedingly deferential standard of review applied in eminent domain and other land use cases. While it paved the way for the "sacking of [our] cities[,]"7 it also established important precedent for a wide range of now commonplace police power regulations, including sign and billboard laws,8 scenic landscape protections,9 landmark and historical preservation laws,10 and aesthetic zoning of all sorts." Its direction that "when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive"12 has been repeated in dozens of cases and included in many constitutional law textbooks.
Yet while Berman v. Parker is frequently cited by the courts, it is rarely analyzed in detail and it is almost never set in its proper historical context. In 2005, when the Supreme Court upheld the use of eminent domain for economic development...