As regular readers of DPP know, a significant portion of my research concerns property rights–especially takings. A piece of this research that I have been working on over the last year or so was published last week in the Journal of Law and Courts, in an article titled “Beyond Kelo: An Experimental Study of Public Opposition to Eminent Domain.” In this study, I show that Americans really do not like eminent domain: large majorities of people consistently oppose eminent domain across a wide range of political contexts. Additionally, I argue that public opinion toward takings is sensitive to the purpose for which that property is to be taken. In particular, I show that people are strongly opposed to takings for the purpose of economic development–such as those at issue in the Supreme Court’s infamous decision in Kelo v. New London. Put differently, government takings of individual’s property is almost always unpopular, but it is really unpopular to take property (even a vacant lot) for the purpose of economic redevelopment.
My article is the latest in a growing body of research that suggests that eminent domain, as it is currently practiced in the U.S. , rests on very shaky footing in terms of both its democratic legitimacy (see my article, as well as these by Ilya Somin), and in terms of its policy and economic outcomes. [I reviewed Somin’s excellent book on Kelo and eminent domain reform here.] Taken together, my reading of this research is that significant reforms in the law of eminent domain are needed. Stronger protections for the rights of property owners would protect disadvantaged and minority groups in the face of takings by affluent and connected interests; such protections are also more consistent with leading theories of constitutional interpretations–including both originalism and living constitutionalism; and as I argue, given the very low levels of public support for takings, they would improve the fit between policy-in-action and the public will.