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

  • Publication: Journal of Empirical Legal Studies

2009, Shari Seidman Diamond, Janice Nadler, Journal of Empirical Legal Studies

Nadler, J. & S.S. Diamond Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity, 5 J. Empirical Legal Studies 713-749 (2009)

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 democraticmodel for the law and policies dealing with takings.

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