Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity
Northwestern University School of Law; American Bar Foundation
Shari Seidman Diamond
Northwestern University, School of Law & American Bar Foundation
Journal of Empirical Legal Studies, Vol. 5, pp. 713-749, 2008
Northwestern Law & Econ Research Paper No. 08-15
Northwestern Public Law Research Paper No. 08-24
American Bar Foundation Research Paper No. 08-03
The U.S. Supreme Court's decision in Kelo v. City of New London, allowing governments to force the sale of private property to promote economic development, provoked bipartisan and widespread public outrage. Given that the decision in Kelo was rendered virtually inevitable by the Court's earlier public use decisions, what accounts for the dread and dismay that the decision provoked among ordinary citizens? We conducted two experiments that represent an early effort at addressing a few of the many possible causes underlying the Kelo backlash. Together, these studies suggest that the constitutional focus on public purpose in Kelo does not fully, or even principally, explain the public outrage that followed it. Our experiments suggest that subjective attachment to property looms far larger in determining the perceived justice of a taking. We have only begun to map out the contours of this response, but these initial findings show promise in helping to build a more democratic model for the law and policies dealing with takings.
Number of Pages in PDF File: 47
Keywords: eminent domain, law & psychology, property, subjective value
JEL Classification: K30
Date posted: July 19, 2008
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