Barros on Kelo and Eminent Domain at Law & Society Blog

Barros on Kelo and Eminent Domain

Published by Hanno Kaiser September 15th, 2005 in Law and Society

Ben Barros, Professor at Widener University Law School, posted his prepared remarks to the Pennsylvania House of Representatives State Government Committee on SSRN. His main point is that homes deserve special protection from government takings, because

homes are different from other types of property. People become personally attached to their homes. Homes tie people to their communities. Displacement of people from their homes can separate them from family, friends, schools and jobs.

Specifically, Barros recommends:

You [= the members of the House] could permit the taking of a home for any type of public use only after a finding, reviewable by a court, that there is no alternative course of action that would serve the same public goal at a reasonable cost
You could require governments to pay a premium (say 10% or 15%) over fair market value for a taken home, which would both provide an economic disincentive to take homes when other types of property are available and compensate the homeowners for some of the personal value they placed in their homes.

These approaches ǃ� alone or in concert ǃ� would help protect homes while maintaining flexibility for local governments to take other types of property.

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2 Responses to “Barros on Kelo and Eminent Domain”

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1 Kenneth Holzman Sep 27th, 2005 at 2:42 pm

I do not believe that there is anything in the constitution which would prohibit Congress from adding further restrictions to the procedure required for the state to acquire a property via the power of eminent domain. Moreover, this proposal offers the very real benefit of recognizing the stock which individuals within our society place on their residences. This reflects a real social value, and one which is almost universally held throughout our culture. Taking a person’s emotional attachment into account when compensating them for a taking of their property would address a real world social problem, and create the appearence of a government which values the lives of its citizens.

It has been well documented over the past decade that human beings are not rational creatures, and that emotional aspects of decision making must be taken into account when engaging in social projects. A homeowner does not see the taking of their property as being a purely economic exercise. Instead, they often see it as robbing them of their own history, their very life’s work. A modest premium would go a long ways towards recognizing this, and dealing with it in a reasonable fashion.