Essay by D. Benjamin Barros
Intuitions play a significant role in our consideration of legal issues. In some instances, intuitions are the express basis of legal positions. Margaret Jane Radin's classic personhood theory of property, for example, is founded on the intuitive idea that people become personally attached to some types of property, including homes. This intuition in turn led Radin to argue that the interests of homeowners should be favored over competing interests because homeowners are personally attached to their homes. In other instances, the reliance on intuitions may be more subtle. In search and seizure law, for example, the United States Supreme Court has measured reasonable expectations of privacy in terms of the “understandings that are recognized and permitted by society.” While this test has a surface level of objectivity, the Justices have not considered empirical evidence on this issue, leaving the impression that they are basing their decisions on their own intuitions about which expectations of privacy are reasonable. Positions on a host of other legal issues are influenced by intuitions about people's relationships to their homes. Recent research on analogous intuitions in philosophy, however, suggests that reliance on intuitions, whether conscious or unconscious, may be deeply problematic. An entire subdiscipline, experimental philosophy, has arisen within the last decade to test philosophically relevant intuitions. Experimental philosophical research has suggested two distinct types of problems regarding intuitions. First, philosophers' broad statements about shared intuitions may be inaccurate. In other words, people may not in fact have the intuitions that scholars think they do. Second, the intuitions that people have about philosophical issues may be contradictory or otherwise troubling. For example, people intuitively will make apparently contradictory decisions about mathematically equivalent scenarios depending on whether the scenarios are framed in terms of gains or avoided losses. While the experimental philosophy movement remains controversial in some respects, its findings are fascinating and merit close attention from legal scholars. Difficult issues surround the normative significance of this type of experimental research. I will presume for the purposes of this Essay, however, that there is at least some room for consideration of experimental psychological evidence in the normative evaluation of legal rules and that research into legally relevant intuitions would be important and informative to legal scholarship. Imagine, for example, that research demonstrated that, contrary to widely held intuitions, people do not have psychologically important connections with their homes. Although they may not be dispositive on any given legal issue, such findings would undercut the theoretical and practical support for many legal rules that give special protections to homes and homeowners. One positive effect of the experimental philosophy movement is that it has sparked psychological research directly related to philosophical issues. There is a strong need for a comparable experimental law movement to conduct psychological research targeted to legal issues. The number of open psychological issues surrounding people's relationships to their homes provides an example. Psychological researchers, of course, have investigated people's relationship with their homes. The number of empirical studies that have been performed, however, is surprisingly small in light of the central role that the home plays in everyday life. Those studies that have been performed often address issues at a level of generality that inhibit their usefulness to informing debate about a particular legal issue. The result is that the existing research on the psychology of the home is of limited use to legal scholars. It is possible to look to the existing psychological research to gain insight into legal issues involving the home and to try to make legal arguments based on that psychological research. The fact remains, however, that the existing research on the psychology of home is too sparse, and too little targeted to specific legal contexts, to support fully compelling legal arguments. This Essay was initially presented as part of a panel at the 2008 American Psychology-Law Society conference. It is primarily aimed at psychological researchers in the hope that it will highlight the need for further research that can in turn inform legal scholarship. This Essay discusses a series of legal issues related to the home and asks psychological questions raised by these legal issues. It also discusses various contexts (some legal and some not) in which researchers could investigate these psychological questions. Legal issues about the home can be divided into two broad categories. The first is embodied by the common law maxim that “a man's home is his castle.” In a wide range of legal contexts, the home is given more protection than other types of property when issues of privacy, security, and freedom are at stake. The second concerns a person's ability to possess a particular home in a particular place. In certain areas, such as rent control and foreclosure law, possession of a home is given an unusual degree of legal protection. In others, such as eminent domain law, possession of a home may be given too little legal protection. I will discuss each of these broad legal contexts, and the psychological issues that they raise, in turn. Part I takes a relatively brief look at the legal issues, and the attendant psychological issues, raised by the castle doctrine. Part II examines issues surrounding the possession of a home in more depth, placing these issues in the context of a theoretical debate about the strength and nature of people's personal connection with their homes.
About the Author
D. Benjamin Barros. Associate Professor of Law, Widener University School of Law, Harrisburg Campus.
Citation
83 Tul. L. Rev. 645 (2009)