Residential Protectionism and the Legal Mythology of Home
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 evidencebased and minimal approach to residential protection.