Beyond Kelo: An Experimental Study of Public Opposition to Eminent Domain (original) (raw)
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Journal of Empirical Legal Studies, 2008
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.
2008
The Supreme Court's 2005 Kelo decision upholding a condemnation of private property for economic development purposes sparked a wave of reform legislation in state legislatures. However, there is considerable variation in the extent to which state legislatures restricted the power of eminent domain. This article seeks to account for this variation. It tests hypotheses drawn from the literature on state responses to Supreme Court decisions and research on factors shaping state policy change in the wake of federal actions more generally. The results show support for an organized interests explanation, a need/scope of the problem explanation, and some elements of an explanation featuring institutional characteristics of the state legislature; there are mixed findings with respect to the role of public ideology.
Kelo’s Legacy: Eminent Domain and the Future of Property Rights
The Supreme Court Review, 2005
The most striking thing about Kelo v New London,' which held that the condemnation of fifteen homes pursuant to an economic development plan qualifies as a "public use" under the Fifth Amendment's Takings Clause, 2 is that there was significant public surprise and outcry at the outcome. For decades conventional wisdom had held that the phrase "public use" in the Takings Clause placed little, if any, constraint on exercises of the eminent domain power, 3 and that any acquisition of property undertaken to further a legitimate public purpose was almost certain to be judged lawful. To be sure,
We wish to thank all of the symposium participants for their comments and suggestions, and particularly Steve Eagle, who served as discussant for the paper and also provided detailed and thoughtful written comments. In addition, we want to thank Alex Tabarrok, for his helpful suggestions in his capacity of Research Director for the Independent Institute, and Laura Schonmuller, who provided research assistance. Nothing in this paper should be construed to represent the views of the Charles G. Koch Charitable Foundation.