Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity

47 Pages Posted: 19 Jul 2008

Abstract

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.

Keywords: eminent domain, law & psychology, property, subjective value

JEL Classification: K30

Suggested Citation

Nadler, Janice and Seidman Diamond, Shari, Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity. 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. Available at SSRN: https://ssrn.com/abstract=1162789

Janice Nadler (Contact Author)

Northwestern University - School of Law

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-3228 (Phone)
312-503-2035 (Fax)

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611

Shari Seidman Diamond

Northwestern University, School of Law & American Bar Foundation ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-2040 (Phone)

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