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

Authors


  • This research was supported by the American Bar Foundation. For helpful comments and suggestions, we thank Stewart Diamond, Robert Ellickson, Jeff Rachlinski, members of the Medin Lab Group, participants at the University of Illinois Law, Psychology and Economics Workshop, and participants at the 2007 Conference on Empirical Legal Studies. Thanks to Jessica Server and Thomas Gaeta for excellent research assistance.

*Janice Nadler, American Bar Foundation, 750 N. Lakeshore Dr., Chicago, IL 60611; email: jnadler@northwestern.edu. Nadler is Research Professor, American Bar Foundation and Professor, Northwestern University School of Law. Diamond is Research Professor, American Bar Foundation, and Howard J. Trienens Professor of Law, Northwestern University School of Law.

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 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.

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