Residential protectionism and the legal mythology of home.

AuthorStern, Stephanie M.

The theory that one's home is a psychologically special form of property has become a cherished principle of property law, cited by legislators and touted extensively in the legal scholarship. Influential scholars, most notably Margaret Radin, have asserted that ongoing control over one's home is necessary for an individual's very personhood and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Remarkably, the legal academy has accepted these theoretical accounts of the home without demanding a shred of empirical evidence. The misplaced belief in the psychological primacy of the home has encouraged the overproduction of home-protective legislation and added a gloss of moral legitimacy to rent seeking. In light of the political groundswell to "save homes" and the social costs of residential protectionism, it is time for a critical reexamination of the psychological importance attributed to the home. Drawing on the research literature in psychology, sociology, and demography, this Article argues that there is scant evidence to support the theory that one's home is a special object that constitutes psychological personhood or enables a rich web of territorial relationships. The psychology research illustrates the primacy of social relations, not possessions, to self and flourishing. The sociological and demographic data indicate that closely-knit, low-turnover territorial neighborhoods are the exception, not the norm. In view of the high costs and limited psychological benefits of protectionism, I advance an evidence-based and minimal approach to residential protection.

TABLE OF CONTENTS INTRODUCTION I. RESIDENTIAL PROTECTIONISM: THE COSTLY MYTH OF HOME A. Overproduction of Home-Protective Legislation B. The Legal Mythology of Home II. THE HOME AS PROPERTY FOR PERSONHOOD: A REVIEW OF THE PSYCHOLOGICAL EVIDENCE A. The Nonprimacy of Home to Self-Constitution B. Relocation and Psychological Flourishing C. Other Correlates of Flourishing: Homeownership, Life Satisfaction, and Self-Esteem D. Conclusions III. RESIDENTIAL COMMUNITARIANISM: EVIDENCE FROM SOCIOLOGY AND DEMOGRAPHY A. Our Town Revisited: Neighborhoods and Weak Ties B. Demographic Mobility C. Residential Stability, Homeownership, and Positive Externalities IV. RETHINKING RESIDENTIAL PROTECTIONISM A. Dismantling the Legal Mythology of Home: Implications for Property Theory B. Rent Seeking Masquerading as Moral Conviction C. A Minimal Theory of Home Protection D. Life-Cycle Effects and Home Protection V. REVISING THE LEGAL THEORY OF HOME: OBJECTIONS AND CONSIDERATIONS A. Preferences Versus Flourishing B. Castles and Control C. The Fear of Mass Destabilization D. What About Poletown?: Protection for Exceptional Communities VI. APPLICATIONS A. Eminent Domain B. Homestead Exemptions CONCLUSION INTRODUCTION

Residential real estate has achieved an exalted status and privileged position in American property law. In the past century, there has been a proliferation of legislation that protects and privileges homeowners by reducing the risk of dislocation and extracting rents to the detriment of non-owners and lower-income owners. I term this movement "residential protectionism." The panoply of home-protective legislation includes bankruptcy protections, property tax relief, and most recently foreclosure reform and state eminent domain legislation. Residential protectionism has imposed social costs by encouraging excessive investment in residential real estate, raising the cost of credit, creating regressive tax subsidies, and frustrating land planning. (1) Despite these costs, protective legislation has attained the stature of moral right. A compelling justification attributed to such legislation is that it safeguards one's (particular) home as a wellspring for psychological flourishing. Involuntary dislocation wreaks psychological devastation and imperils self and identity--one's very personhood. (2) The belief that ongoing control of one's home is a psychological imperative has become a tenet of American property law, discussed and conceded in every first-year property class and touted extensively in the legal scholarship. The legal academy has accepted this theoretical notion as fact and in doing so facilitated the home's illustrious and uncontested reign over American property law. (3)

Property scholarship spins an alluring tale of how the force of law stands as a vigilant guardian over the personal and psychological values of the home. Few articles have enthralled property theorists as Margaret Radin's theory that certain kinds of property, including homes, are constitutive of personhood. (4) Radin argued that ongoing control over objects, such as homes, that are "bound up" with one's self is necessary for proper self- constitution and psychological flourishing. (5) Personhood theory infused a generation of scholarship, engraining the notion that homes are special objects deeply intertwined with psychological functioning. Scholars have cited the personhood value of the home to support constraints on government takings, to justify property redistribution, and more generally to offer a long-awaited reprise to economic theory. (6) In a separate vein, a number of community-development and communitarian scholars have advocated legal protection of the home based on a theory of territorial social relations rather than individual identity. They argue that home protection furthers important normative interests by situating individuals in strong and meaningful networks of social ties. (7) Astonishingly, no one has questioned whether empirical evidence exists to support these theories.

The widely held belief that homes are psychologically vital to their owners has added a gloss of moral legitimacy to home-protective legislation. One motivation for legal protection is the desire to safeguard the perceived psychological and social value of the home. More often, the impetus is rent seeking by special interest groups, competition between states to attract residents, or grandstanding by politicians anxious to capitalize on the evocative chord of home protection. (8) The legal mythology of the home (and the legal academy's reflexive acceptance of this notion) has disguised rent seeking with rhetoric and recast economic protectionism as a humanistic endeavor.

Moreover, the mythology of home and residential protectionism are self- perpetuating. If property law treats the loss of home as the amputation of one's very identity and ability to thrive, then owners are likely to construe dislocation as a dire event. (9) Thus, residential protectionism creates the very demoralization costs it seeks to redress and increases political demand for home-protective legislation.

In light of the social costs of protectionism and the political groundswell to "save homes," it is time for a critical reexamination of the importance attributed to maintaining one's home. Drawing on the research literature in psychology, sociology, and demography, this Article argues that there is little evidence to support a categorical theory of ongoing control over one's home as a prerequisite to psychological flourishing. Psychology research shows that people may like their homes, imbue their homes with a certain emotional resonance, and utilize their homes to reflect and display identity. But there is scant empirical support for the proposition that homes are requisites of psychological functioning such that object loss imperils the dispossessed owner's self-concept or impedes psychosocial functioning. (10) Indeed, there is little evidence that consumer possessions in general are primary or requisite constituents of self or flourishing. (11) Instead, the empirical research indicates that the prerequisites for human flourishing are social relations and interaction, not ownership of certain types of property. (12)

Community-development and communitarian scholars have long recognized the value of social relations as a normative matter (if not an empirical one). (13) These scholars take a more instrumental view of the benefits of residential stability. However, some of these accounts have romanticized territorial ties and oversimplified neighborhood social networks. (14) Homes do not situate individuals in tight-knit communities marked by deep affective ties. To the contrary, sociological and demographic research shows that neighborhoods are characterized by weak and intermediate ties, and there is evidence that neighborhood sociability is in decline. (15)

An evidence-based theory of home protection is long overdue, particularly in view of the recent upsurge in home-protective legislation and national attention to residential real estate. The humble home has also seized the limelight in property scholarship, with heated debates over the psychological value of the home in the contexts of takings legislation, foreclosure, and affordable-homeownership initiatives. Prominent articles have proposed compensation models for psychological losses from eminent domain, (16) examined how "homevoters" shape land use law, (17) and considered foreclosure reform for residential real estate. (18)

This Article offers a new perspective on these perennial debates in property law by distilling the empirical research on homes. The central claim of this Article is that the psychological and social benefits of remaining in a particular home do not warrant the vast apparatus of categorical protections that pervade American property law. We may opt to retain these protections for other reasons, but they cannot be justified on a theory of the home as psychologically vital. A corollary is that the legal academy has been unduly deferential to conjecture about homeowners' subjective preferences while neglecting entirely the data on objective psychological outcomes. In light of the psychological evidence, and absent...

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