Home as a Legal Concept
D. Benjamin Barros
Widener University - School of Law
Santa Clara Law Review, Vol. 46, January 2006
This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home.
The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.
Number of Pages in PDF File: 52
Keywords: Home, psychology of place, psychology of home, search and seizure, fourth amendment, privacy, castle, self-defence, rent control, landlord-tenant, takings, kelo, eminent domain, public use, just compensation, homestead, mortgage, income tax, equitable distribution, personhood, property, radin
JEL Classification: K10, K11, K13, K14Accepted Paper Series
Date posted: September 16, 2005
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