What has Love Got to Do with It?: Sentimental Attachments and Legal Decision-Making
David L. Markell
Florida State University College of Law
Yale University - Law School
Sarah F. Brosnan
Georgia State University
September 7, 2011
Villanova Law Review, Vol. 57, No. 2, 2012
FSU College of Law, Public Law Research Paper, No. 534
Our underlying premise in this article is that a government is likely to bolster its legitimacy when it uses legal decision-making procedures in which the public has confidence. Our findings, which are based on a survey about options for resolving disputes in the land use arena, identify an important anomaly in public preferences. While people generally preferred to resolve disputes through judicial adjudication, they did not prefer to have the courts make decisions involving sentimental value. These findings suggest that it is not possible to paint a simple picture of public procedural preferences because those preferences shift depending upon the nature of the issues at stake.
Our results also offer insights as to why people held different preferences. We found that when monetary values predominated, people were most sensitive to their perceptions of the neutrality of a process and accepted decisions made by an arbiter they perceived to be neutral. When sentimental values were important, people were attuned to their trust in the motives and character of the decision maker. Trust in turn was influenced by the opportunities a process provided for voice and the quality of treatment it provided (the respect it signaled for participants and their rights), as well as by the neutrality of the decision making process. These features of voice and quality of treatment carried much less weight when monetary values predominated. These findings hold promise for procedural reforms that would increase satisfaction with litigation and other procedures when sentimental values are important, for example when the government is trying to take someone’s home for public purposes.
Building upon our findings, we offer a framework for structuring efforts to incorporate public views into the design of legal procedures in order to deal with issues of sentimental value. We also consider how our findings might be used in the field of eminent domain law, where dissatisfaction often runs high and sentimental values frequently are important. Here litigation, a generally acceptable procedure, is being used in a situation in which it needs to take account of sentimental values, something that people feel courts are ill-equipped to do.
Previous efforts to deal with sentimental value have focused upon trying to increase compensation to acceptable levels, for example via contingent valuation, or upon narrowing the allowable use of procedures such as eminent domain. We propose a new framework based upon designing procedures that produce publically acceptable decisions when sentimental values are at issue. We argue that this approach is a promising one in an arena in which prior approaches have met with at best limited success.
Number of Pages in PDF File: 52Accepted Paper Series
Date posted: September 8, 2011 ; Last revised: August 30, 2012
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