A recently published book, “Wrestling with Moses,” recounts battles waged by renowned urban-planning advocate Jane Jacobs against projects proposed by master planner Robert Moses that would have torn down hundreds of residential buildings in Manhattan to clear the way for “urban renewal.” With the New York Court of Appeals now poised to rule in the long-running eminent-domain fight arising out of the proposed condemnation of homes and other private property for a sports arena and luxury housing in Brooklyn’s Atlantic Yards, the book’s discussion of Moses’ bulldozing of New York City neighborhoods takes on special resonance.

Moses’ widespread use of eminent domain coincided with a significant relaxation by the Court of Appeals of its view of the state constitutional provision that regulates government taking of private property. This approach corresponded with similar trends in federal law, which culminated four years ago in the U.S. Supreme Court decision in Kelo v. City New London, Connecticut,1 in which the Court approved the condemnation of private property to clear the way for a massive private development project. Kelo ignited a national controversy about the government’s power to seize private property and turn it over to private interests for economic development. In light of this controversy, the surprise decision by the New York Court of Appeals to take on the Atlantic Yards case provokes the question whether the Court is considering moving back toward its pre-Moses condemnation jurisprudence.

Pre-Moses Law

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