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

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  • Janice Nadler
  • Shari Seidman Diamond

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.

Suggested Citation

  • Janice Nadler & Shari Seidman Diamond, 2008. "Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 5(4), pages 713-749, December.
    • Handle: RePEc:wly:empleg:v:5:y:2008:i:4:p:713-749
    DOI: 10.1111/j.1740-1461.2008.00139.x
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    1. Gideon Parchomovsky & Peter Siegelman, "undated". "Selling Mayberry: Communities and Individuals in Law and Economics," Scholarship at Penn Law upenn_wps-1024, University of Pennsylvania Law School.
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    1. repec:cup:judgdm:v:11:y:2016:i:4:p:326-331 is not listed on IDEAS
    2. Christoph Engel & Michael Kurschilgen, 2011. "The Coevolution of Behavior and Normative Expectations. Customary Law in the Lab," Discussion Paper Series of the Max Planck Institute for Research on Collective Goods 2011_32, Max Planck Institute for Research on Collective Goods.
    3. Charles Millar & Christina Starmans & Jonathan Fugelsang & Ori Friedman, 2016. "It's personal: The effect of personal value on utilitarian moral judgments," Judgment and Decision Making, Society for Judgment and Decision Making, vol. 11(4), pages 326-331, July.
    4. José Manuel Palma‐Oliveira & Benjamin D. Trump & Matthew D. Wood & Igor Linkov, 2018. "Community‐Driven Hypothesis Testing: A Solution for the Tragedy of the Anticommons," Risk Analysis, John Wiley & Sons, vol. 38(3), pages 620-634, March.
    5. Chen, Daniel L. & Yeh, Susan, 2016. "Government Expropriation Increases Economic Growth and Racial Inequality: Evidence from Eminent Domain," TSE Working Papers 16-693, Toulouse School of Economics (TSE).
    6. Hoehn, John P. & Adanu, Kwami, 2014. "What motivates voters’ support for eminent domain reform: Ownership, vulnerability, or ideology?," International Review of Law and Economics, Elsevier, vol. 37(C), pages 90-99.

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