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

Abstract

The U.S. Supreme Court's decision inKelo 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 inKelowas 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 theKelobacklash. Together, these studies suggest that the constitutional focus on public purpose inKelodoes 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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