Burnt Orange Report

Kelo v. New London Calling: Eminent Domain... F*** Yeah!

By Jim Dallas

There's nothing we love over here at Burnt Orange Report more than our rights to life, liberty, and property. Especially property. Especially if said property is the last bottle of beer in the cooler.

While I can't speak for my Burnt brethren, I've been following the Kelo case (1 | 2) with great interest, and not merely because it could potentially make everything I'm learning in Property about "public use" obsolete.

Oral arguments were yesterday, and the inimitable Dahlia Lithwick writes up the whole story in Slate. SCOTUSblog reports that the city of New London will probably win this one... big... and governments everywhere will have unbridled authority to turn your living room into a Wal-Mart.

But, thankfully, the American Prospect pitches an idea to use all of this awesome power for good instead of evil. At least until the administrating agency is captured by the pharmaceutical industry:

Unless the drug industry starts to negotiate significantly lower prices, it may find itself battling debt-strapped states for control over the manufacture of drugs. States already take land and other property in order to benefit the public by building things such as roads and schools. Now some legislators and officials are saying they should be able to take away a drug company’s intellectual property, its patent. They want to give these patents, which allow a company to manufacture a product, to competitors that agree to sell the drugs to the states at much lower prices.

Patents are the key to huge drug-company profits. The industry will fight vociferously to protect them. In West Virginia, where the issue came up last summer, industry lawyers warned a legislative advisory council away from proposing such action on patents, claiming it would be unconstitutional. With virtually unlimited resources, the drug companies could drag states through courts for years. Still, the specter of states compelling companies to license their patents to other firms terrifies the industry. And even the fight to do this would open the industry to further scrutiny on pricing policy. All of which, some officials hope, could make drug companies more willing to negotiate discounts.

I had this idea about a month ago, but I thought it was too crazy to even consider asking the Prof about (and after all, I'm supposed to be learning about real property, not intellectual property). Maybe my initial gut feeling was right -- it's so crazy, it might just work.

Remember, the number one top reason why drugs are so expensive is because the government aids and abets the monopolistic instincts of Big Pharma.