July 31, 2008
Nadler and Diamond on the Psychology of Eminent Domain
Janice Nadler and Shari Seidman Diamond (Northwestern) have posted Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity on SSRN. Here's the 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.
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"[W]hat accounts for the dread and dismay that the decision provoked among ordinary citizens?"
I fail to understand what is so difficult about this question that it requires a lengthy analysis. Given the value that Americans place on home ownership, and the fact that this decision sanctioned the ability of bureaucrats to take away one's home for whatever reason they so choose, what other reaction should one expect?
It's also incorrect to suggest that a 5-4 decision was "virtually inevitable."
Lastly, the authors suggest that "the constitutional focus on public purpose in Kelo does not fully, or even principally, explain the public outrage that followed it." I would argue that the constitutional focus--that is that eminent domain is supposed to be used only for public purposes--and the private beneficiaries that were at issue in Kelo are big reasons for the outrage. But I sometimes wonder whether law professors are too esoteric to understand this. Or perhaps they realize, without ever acknowledging as much, that there's hardly a chance that the property they own will ever fall victim to a hijacked political process.
Posted by: B | Aug 8, 2008 2:16:17 PM