Quote Originally Posted by lucy View Post
Again, i think that exactly this should not happen. Although it sounds convincing, a judge should do nothing but decide by the law, and only the law. If this goes against fairness or common sense, the law (or constitution) should be changed. The keyword is subjective, and that's exactly what should be avoided. We all know that sticking to the law still is subjective enough, of course.
What one person in the judicial system might find fair might be utterly unfair to the next one. And the result of this would be arbitrary decisions.
Exactly, a prime example of changing the law to address this is Kelo vs. New London.

A Supreme Court case where the city of New London, CT used Eminent Domain to take the private property of an individual (they owned a bed and breakfast) to give it to another private individual (a developer who wanted to build condos, I think). The cities argument was that the condos would provide more tax revenue, therefore were better for the city and, as such, met the "public use" provision of Eminent Domain.

The Court's decision (5-4) was that this action was Constitutional and legal under Connecticut and Federal law.

The dissent argued that "public use" didn't mean "public good" and that giving the land to another private owner was not Constitutional.

To decide this case on "fairness", well, fair to who?

To the owners of the bed and breakfast, it's not fair that they had their property taken.

To the city, it's not fair that they didn't have the optimal tax base provide services to the community.

To the developer, it's not fair that he can't build his condos.

To the other residents of the city, it's not fair that not collecting those higher taxes means they have to pay a larger share or have reduced services.

To the neighbors of the property, it's not fair that their nice view of a quaint bed and breakfast is changed to a high-rise condo building.

So, when we ask the judge to be "fair" -- who do we mean fair to?

The Kelo case hinged on interpretation of the "public use" clause in the Constitution and set the precedent that private property can be taken by the State and given to another private party to increase tax revenues.

Public backlash was strong and now most States have passed, or soon will, legislation to clarify "public use" to exclude transfer to private developers.

If it were left to "fairness", each instance of Eminent Domain would be left to the interpretation of the individual judge as to whether it was "fair".