Submitted by John Ryskamp, Aug 2, 2007 14:12

I discussed this case in my recent book, THE EMINENT DOMAIN REVOLT: CHANGING PERCEPTIONS IN A NEW CONSTITUTIONAL EPOCH. I said there that the lawyers better do their homework and get the facts showing that private purpose had been substituted for government purpose. They did not do that. The case was thrown out because the Judge said there wasn't sufficient allegation of fact to meet the test. Can you believe it? So the lawyers fulminated too much in their complaint.

They're pretty confident on appeal, but I'm not so confident. I don't think they understand the private-government distinction very well, even though it's crucial to allow the Federal suit to go forward. Of course, the evidence is overwhelming that private purpose was substituted for public purpose, but you have to actually SHOW it. The attorneys think moral posturing and bravado makes the case. It doesn't.

Nor am I sure the state suit will rescue them. There is very broad discretion under the law, which I have tried to point out to them before. But they are awfully sure they are right, so certainly they will win. So they say.

Actually, they haven't a clue as to how to proceed, because their understanding of the law--and, fundamentally, of their rights--is not good. For example, DDDB also talks in terms of development, and so adopts the ground of Ratner. Big mistake. DDDB won't talk about rights. Big mistake.

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