Stern on the Legal Mythology of Home

Stephanie Stern (Loyola Chicago) has posted Residential Protectionism and the Legal Mythology of Home on SSRN.  Here's the abstract:

Residential real estate has achieved an exalted status and privileged position in American property law. The notion of the home as a special object deserving heightened protection is widely accepted within the case law and scholarship. Influential scholars, most notably Margaret Radin, have argued that the home is critical for an individual's very identity and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Over the past century, there has been a proliferation of legislation creating special protections for owners of residential real estate such as homestead exemptions, tenancy by the entirety, property tax relief, and more recently foreclosure relief and state eminent domain legislation shielding residential real estate. This type of legislation imposes a variety of social costs including raising the cost of credit, skewing housing prices and incentivizing over-investment, and forcing less affluent homeowners to subsidize more affluent homeowners through regressive measures. One motivation for residential protection legislation is the desire to protect the special values attributed to the home, especially for families. More often, the impetus for such legislation is rent-seeking by special interest groups, competition between states to attract residents, actions by local home voters who attempt to externalize costs across localities, or grandstanding by politicians anxious to capitalize on the evocative chord of home protection. The belief that homes play a critical and irreplaceable role in the lives of individuals and families has provided a gloss of moral legitimacy to rent-seeking and greased the wheels of the residential protectionism machine. It is time for a critical reexamination of the importance attributed to the home. Drawing on the research literature in psychology, sociology, and demographics this paper argues that there is scant evidence to support a categorical theory of the home as a special object that constitutes individual identity or enables a rich web of social interactions. The psychology research illustrates the importance of social interaction and relationships (not possessions) for human functioning while the demographic research indicates that closely-knit, low-turnover, territorial neighborhoods are the exception, not the norm.

Ben Barros

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