Protection Of Private Property Research Articles

Garrett Davis and the Problem of Democracy and Emancipation

Garrett Davis and the Problem of Democracy and Emancipation Christopher Waldrep (bio) It should come as no surprise that two Civil War-era political leaders born in Kentucky would hold similar constitutional understandings. President Abraham Lincoln (1809-65) and Senator Garrett Davis (1801-72) shared a common biography; both were natives of Kentucky and both followed Henry Clay to oppose slavery and favor democratic values. Both revered the founding principles of the U.S. Constitution as binding. Both served as Whigs in Congress, Lincoln [End Page 363] for one term, 1847-48, and Davis for four terms, 1839-46, where both opposed the Mexican War for similar reasons: they opposed the expansion of slavery. In the secession crisis, the two worked together as a team to keep Kentucky in the Union and crush the Confederacy.1 They fell out after 1863, ultimately because they disagreed not just over slavery but over the nature and meaning of self-government. Elected to the Senate in 1861, Davis came to Washington echoing key points Lincoln had made in his first inaugural address, especially the idea that "mystic chords" bound the American people together, committing ordinary citizens to their nation and its founding principles. To Davis the "mystic chords" were a "golden cord" or a "magic chain," but the idea was obviously the same.2 Lincoln and Davis both recognized that the power to interpret constitutional law ultimately resided in the people, but at the same time they saw that power was limited by organic law. Before the Civil War, many or most white Americans shared the idea that a static, unchanging Constitution constrained politics.3 The rub came when Lincoln attacked the idea that slavery could be a local matter, left to local elections; slavery, he said, was a moral wrong, an affront to the "leading principle—the sheet anchor of American republicanism" as articulated in the Declaration of Independence. He said that the entire nation had an interest in whether [End Page 364] the states had slavery or not.4 To Davis, such thinking violated democratic principles. He thought that the Founders had limited popular authority by channeling it through the state governments. The people could end slavery but only through their state political systems, not through the apparatus of the national government, so long as they stayed in the Union. Such state-centered constitutionalism could encourage sectional agitation, as Davis fully understood. Davis saw two features in the "social system" of American constitutionalism that strengthened its force and tended the Union toward permanency.5 The Framers, rather than challenging nature, which would have made the document seem unnatural and contrived and therefore vulnerable to criticism, had instead adapted fundamental rights universally found in natural law. The most important of these, in Davis's mind, protected private property with due process of law. Natural law did not dictate property rights: "The natural law gives no right of property to a man in anything," Davis said. Through a political process the American people chose to put naturally occurring property rights in their constitution. He called it "public national law, growing out of the practice, usages, and uniform customs of the civilized world."6 So long as they remained in the Union, property owners need not fear government confiscation of their property outside legal processes. Basing the Union on natural law, and not just political bargaining, made any agitation against it seem less legitimate, Davis thought. For Davis, though, the naturalness of the Constitution went beyond such bedrock principles, no matter how important they might be. He also thought the Constitution incorporated a way [End Page 365] of thinking about race consistent with the best scientific knowledge available. Primarily by their silences, many historians have argued for Davis's irrelevance.7 Davis's frequent absences from the secondary sources, when he is so prominent in the primary sources, silently argues that most Civil War-era white Americans did not share his ideology or his continued commitment to antebellum constitutionalism in the postbellum era. "Racism had been rampant" before the Civil War, one scholar recently wrote about Northerners before continuing, "[b]ut the war years changed those attitudes." Racial prejudice endured at the end of...

Does social trust determine the size of the welfare state? Evidence using historical identification

Most modern welfare states offer an extensive array of services and benefits that are wholly or partly financed by tax revenue. One missing link in explaining the long-run sustainability of such comprehensive welfare states could be the already-existing stock of trust. Indeed, our cross-country results suggest that trust determines the size of welfare states as well as three features that are arguably necessary for their preservation: high levels of political confidence, strong legal institutions protecting private property rights, and low levels of bureaucratic corruption.

Historia económica general de México: De la colonia a nuestros días

Historia económica general de México: De la colonia a nuestros días

The Rogue Republic: How Would-Be Patriots Waged the Shortest Revolution in American History (review)

Reviewed by: The Rogue Republic: How Would-Be Patriots Waged the Shortest Revolution in American History Gene Allen Smith The Rogue Republic: How Would-Be Patriots Waged the Shortest Revolution in American History. By William C. Davis. Boston: Houghton Mifflin Harcourt, 2011. xv, 400 pp. $28.00. ISBN 978-0-15-100925-1. During the morning of September 23, 1810, storekeeper Philemon Thomas led armed Americans against the dilapidated Spanish fort in Baton Rouge, West Florida. Within minutes the Americans had captured the Spanish bastion along with Commandant Carlos De Hault DeLassus. A convention of delegates representing the area soon issued a Declaration of Independence, raised a single-star blue flag, and requested annexation into the United States. By mid-October, the independent Republic of West Florida (comprising parts of present-day Louisiana, Mississippi, Alabama, and Florida) had drafted a constitution based on the American model. President James Madison instructed officials and troops to occupy the "Rogue Republic" as part of the Louisiana Purchase of 1803. After seventy-eight days, the country's original lone star republic was consolidated into the constellation of the Stars and Stripes without war and without financial costs. William C. Davis's account of the West Florida Rebellion uses the life of the three Kemper brothers—Nathan, Reuben, and Samuel—to describe how bold and decisive Americans swept across the Gulf region, incorporating these lands into the United States. Arriving in the lower Mississippi Valley during the late 1790s, Reuben and Nathan Kemper tried their hands at the mercantile business, as flatboat operators, and earning a living from the land. Before 1804 Spanish policy had won the loyalties of the region's multinational inhabitants by granting access to cheap and abundant lands, providing political stability, and protecting private property. In return settlers—Spanish and foreign inhabitants alike—had displayed a willingness to abide by Spanish law, supported the local government, tacitly accepted the Roman Catholic faith, and even swore fidelity to the Spanish Crown. The Kempers found it difficult to obtain financial success in these Spanish-controlled lands. After the Kempers lost their property through legal proceedings, Spanish authorities expelled them from the province. Reuben and his brothers gathered supporters from the Mississippi Territory, and in 1804 they raided West Florida and moved against Baton Rouge, trying to foment [End Page 137] a rebellion that could become a revolution. Instead, Americans in the area generally refused to join the Kemper filibuster because they were happy with the liberal Spanish land policy and with the government's protection of slavery; the Kemper raids ultimately degenerated into a crime spree rather than a revolution. Between 1804 and 1810, however, attitudes in West Florida changed radically, revealing considerable discontent and providing the foundation for revolution. Legitimate Spanish imperial authority disintegrated when Napoleon appointed his brother Joseph as emperor. The appointment of DeLassus, who enforced strict policies prohibiting the amassing of land, eroded local Spanish control. The American embargo of 1807 further undermined the region's economic stability, effectively curtailing trade between American New Orleans and Spanish Baton Rouge. This chaos almost immediately altered the loyalty of the region's inhabitants. The strength of Davis's account of the West Florida Revolution is that he weaves a colorful and dramatic story, centering on the actors who stood in the vanguard of American Manifest Destiny. The Kemper brothers, especially Reuben, were in the middle of almost every disruption in the Gulf region during the period 1800-1821. Once West Florida had been incorporated into Louisiana, however, the Kempers fell from favor. Samuel appears again during the Gutiérrez-Magee Expedition into Texas (1812-1813), and Reuben and Nathan participated in the American defense of New Orleans during the British campaign of 1814-1815. By1821 the Spanish had lost control over most of the north shore of the Gulf of Mexico, retrenching farther west in Texas; by the end of 1821 Mexican independence had wrested Texas from Spanish hands. Historians such as Andrew McMichael, Frank L. Owsley Jr., James Cusick, Peter Kastor, James E. Lewis Jr., and this reviewer have all offered interpretations that address the Americanization of the Gulf Coast. These authors generally contend that on the local level inhabitants...

Security of ownership versus public benefit: a case study for land taking for infrastructure in Greece, as an EU member state

This paper presents the results of a 4 year research (Internet, existing literature, interviews with experts from the public and private sectors, Ministry records) on the general legislative and technical aspects and the procedures implemented in Greece, an European Union (EU) member State since 1981. It is a study of compulsory land acquisition and is a case study focused on collecting and analysing recent information about land taking procedures and practices in Greece with an emphasis on current major highway projects. Included is a study of the legal framework; the legislative amendments adopted progressively through recent years; and the existing conflicts among the various Greek courts and the Court of Justice of the European Union and between interpretation of the Greek legislation and the practices in free market economies. Additional problems with the land acquisition process are investigated. This case study focuses on the investigation of emerged problems, and the legislative changes made, due to pressure for a number of major infrastructure projects for the 2004 Olympic Games and motorway projects commissioned by the Hellenic Ministry of Infrastructure, Transport and Networks. These consist of major transportation road networks in the areas of Northwestern Greece (Ionia Odos), North Greece (Egnatia Odos), Attica peninsula (Attiki Odos) and the Peloponnesus (Olympia Odos). An effort is made in this study to develop strategic recommendations for improving the protection of private property in Greece; harmonising land expropriation practices with the European approach; and for simplifying and accelerating the adjudication process and the achievement of more transparent and just compensation.

Commercial law reform in the Russian Federation

The author explains that the privatisation of state-owned undertakings engaged in economic and commercial activities has become the staple of economic policies of developing countries and many developed countries. In the Russian Federation, the enormity of the process is beginning to be fully understood. This article discusses the interventions by the World Bank and the European Commission to introduce a new legal order in the country to protect private property and economic rights and complete the transformation from a socialist to a market economy. Article by Dr K.V.S.K. Nathan (Barrister / Arbitrator, Italy). Published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

IS THE COMMON LAW A FREE-MARKET SOLUTION TO POLLUTION?

Whereas conventional analyses characterize environmental problems as examples of market failure, proponents of free-market environmentalism (FME) consider the problem to be a lack of markets and, in particular, a lack of enforceable and exchangeable property rights. Enforcing property rights alleviates disputes about, as well as the overuse of, most natural resources. FME diagnoses of pollution are much weaker, however. Most FME proponents suggest that common-law tort suits can adequately protect private property and ecological resources from pollution. Yet such claims have not been substantiated. Further research is needed before the common law, or regulatory reforms grounded in common-law principles, can be seen as a viable alternative to traditional environmental regulation.

The Case for Imperfect Enforcement of Property Rights

A persistent theme in the literature on property rights suggests that perfect state protection of private property rights would provide owners with an optimal incentive to invest in their assets. In this Essay, we challenge this view. Specifically, we argue that in many instances, perfect state protection would result in over-investment in resources. This is because perfect enforcement gives rise to a problem akin to the moral hazard problem that plagues insurance markets. In addition to pointing out this problem, we define the conditions under which it may arise in the real world and discuss the measures law should take in order to combat it. To illustrate our thesis, we provide examples of legal rules and doctrines that may be best understood as a response to the moral hazard problem resulting from state protection of private property.

In Quest of Judicial Independence for Protecting Private Property: Evidence from Constitutional Review in South Korea

The sanctity of private property is an essential requirement for economic prosperity of an economy. However, in some countries, the ruler who is supposed to ensure the supremacy of private property is sometimes seen expropriating private property. In this circumstance, judicial independence is vastly required to restrict grabbers from attenuating property rights. Because court plays an important role not only in interpreting the law but also bears the responsibility to ensure the rule of law. This paper first, looks for the judicial independence in South Korea through the lens of constitutional review. In relation to property rights, constitutional reviews were required if any clause in the existing laws goes subversive to private property. The paper then analyzes some widely cited cases relevant to property rights issue before and after the establishment of the Constitutional Court in Korea. The analysis shows that in the pre-democratic era the court’s activities were frequently intervened by the government and hence the court did not possess sufficient power to uphold the spirit of private property. However, in the post-democratic regime, the court has been bestowed with adequate discretion and therefore, property rights are better protected.

Earth into Property: Colonization, Decolonization, and Capitalism by Anthony J. Hall

Earth into Property: Colonization, Decolonization, and Capitalism by Anthony J. Hall

Reporting Timeliness, Private Information and Stock Price Synchronicity Morck et al. (2000) Revisited

Morck et al. (2000) argue that lack of private property protection discourages informed traders from capitalizing on firm private information which incorporates more market risk in stock returns. This paper extends Morck et al. (2000) investigations and suggests alternatively that firm corporate transparency namely frequent reporting motivates private information flow into stock prices. It also suggests that private property protection is associated with less market risk noise and not more firm-specific information. These results are consistent with Jin and Myers (2006) who suggest that insiders in opaque firms are reluctant to release firm information during normal and momentum earnings leading to more systematic risk in share prices. The findings suggest that firm timely reporting convey relevant expected cash flow information that motivates risk arbitrageurs to trade on firm private information and incorporate more firm-specific information into stock returns.

Urban and suburban lifestyles and residential preferences in a highly urbanized society

It is widely recognized that cities nowadays are confronted with (new) challenges like segregation and suburbanisation. This paper explores the idea that these processes are related with residential choices (or preferences) made by residents with divergent lifestyles and value patterns. The paper focuses on differences between urban and suburban lifestyles and residential preferences. Firstly the concept of lifestyles in general, and urban and suburban lifestyles more specifically, are approached. Secondly the results of a quantitative survey amongst residents within four neighbourhoods in the Ghent Region, a city in Belgium, are presented. This survey confirms that residents of urban and suburban zones have divergent lifestyles, but only for behavioural aspects, such as : private property protection, status behaviour and ecological behaviour. This results however in a social-spatial inequality and polarization between the urban centres and the suburban fringe. The shared aims amongst urban as well as suburban residents for a more secure residential environment and the ideal of the detached single-family house with private garden situated within a purely residential area, were identified as drivers for future suburban migrations. These residential preferences might cause (further) suburbanisation but do not need to lead to segregated social communities, since living with peers does not seem to be a driver for migration in Flanders, Belgium.

Pastoralism within the cadastral system: Seasonal interactions and access agreements between pastoralists and non-pastoralists in Northern Kenya

The imposition of exclusive statutory real property rights in or near pastoralists’ areas and their migration corridors permanently excludes and extinguishes pastoralist rights to mobility and access to required resources. Seasonal interactions with non-pastoralist land use actors often occur during pastoralist migrations between rangelands and highlands or dry season grazing areas. In an embedded case study in Northern Kenya, in which interviews based on semi-structured questionnaires were held with pastoralists and non-pastoralists, we investigated how non-pastoralist land use actors manage encounters with migrating pastoralists within the context of the Land Administration system. We found that the majority of non-pastoralist land use actors encounter migrating pastoralists during distinct periods. Most never allow herders access to privately owned land. A small proportion allow access and make temporary verbal or written access agreements containing provisions on grazing fees, grazing regulations and rules to protect private property. The majority of non-pastoralists are unwilling to have access arrangements formalized. We argue that land rights adjudication should identify and confer all existing land rights to all users to avoid obstruction or renegotiation for access, and recommend the inclusion of pastoralists’ access rights as real property rights in the Land Administration system.

Modernizing Chinese Law

Over the past three decades a progressive transformation of the law and legal institutions in China took place as part and parcel of China’s broader modernization process driven by economic reform and development. The recognition and protection of private property as embodied in the amendment of the 1982 Constitution, the 2007 Property Law and other legislations, is one of the stories contributing to the transformation of modern Chinese law and legal institutions, which relects a historical modernization process of socio-economic change in contemporary China. However, this study by examining the development of a legal framework for the protection of private property, the problems related to urban housing demolition, and the rule of law in relation to the protection of private property, submits that the legal modernization in the protection of private property had no radical departure from, but conined within and compromised with, China’s current existing systems which, among others, still uphold socialist ideology and practice.

Economic Freedom and Employment Growth in U.S. States

We extend earlier models of economic growth and development by exploring the effect of economic freedom on U.S. state employment growth. We find that states with greater economic freedom - defined as the protection of private property and private markets operating with minimal government interference - experienced greater rates of employment growth. In addition, we find that less restrictive state and national government labor market policies have the greatest impact on employment growth in U.S. states. Except for labor market policies, we find that state employment growth is influenced by state and local government policies, but not the policies of all levels of government, including the national government. Our results suggest that policy-makers concerned with employment should seriously consider the degree to which their own labor market policies, as well as those of the national government, may be limiting economic growth and development in their respective states.

Contraband and Private Property in the Age of Imperialism

AbstractA belligerent declaration of war binds all of its subjects, so that merchants of a belligerent state are forbidden from trading with the enemy. But when a neutral state declares neutrality, that act does not bind all subjects of the neutral state. Neutral merchants are free to trade with belligerents – even in contraband, at their own risk. This essay examines international negotiations over contraband during the first decade of the 1900s while highlighting, in particular, the contradiction between the wish to maintain belligerent rights to determine contraband and to capture it on the high seas and, at the same time, to uphold neutral rights of free trade, which meant protecting private property in trade, including contraband. This asymmetry of the rules of contraband demonstrated that war is not a relation exclusively between states and, as a consequence, some within the international community proposed making individuals subjects of international law or, as an alternative, making neutral states responsible for prohibiting their subjects from trading contraband.

Foreign Aid, the Rule of Law, and Economic Development in Africa

Foreign aid has failed to bring about any significant development results in the poor countries of Africa in over sixty years of existence. The failure of aid is due to the fact that development planning faces an insurmountable calculation problem. Attempting to salvage aid by making it more selective does not address this problem, and will not make aid effective. Aid by its very nature causes waste, corruption, politicization, privilege seeking, and statism, all of which are detrimental to economic development. Instead of relying on aid, African economies should occupy themselves with creating legal institutions that are commensurate with the protection of private property and the Rule of Law, which are foremost among the institutions necessary for sustainable, long run economic growth.

Driving growth: Regulatory reform and expressways in Indonesia

This article uses the case study of Indonesian governments' attempts to construct a 1,000 kilometer toll road through the densest parts of Java to shed light on how governments with a checkered past of enforcing contracts and protecting private property rights go about establishing the requisite regulatory framework to attract private investment for infrastructure. While regulatory reform has taken place in Indonesia, vested interests and power will keep the country's political economy from taking on World Bank-promoted best practice characteristics. Programs that promote private sector participation in infrastructure need to be reconsidered where the main ingredients for these programs' success exist in small measures.

The Peace Treaty of Fredrikshamn and its Aftermath in Sweden and Finland

This article analyses the Peace Treaty of Fredrikshamn (Hamina in Finnish) and its consequences in Sweden and Finland. The Russians set strict preconditions for the commencement of peace negotiations with the Swedes in the summer of 1809. These conditions were realized almost <em>in toto</em> in the final peace treaty, which consisted of just twenty-one articles. In addition to regulations directly related to the ending of hostilities, the main provisions of the agreement entailed huge territorial losses for Sweden, strictly defining the regions it was to cede to Russia, the most important of which was Finland. Sweden was also enjoined to give up its alliance with Britain and to join the Continental Blockade. Furthermore, the peace treaty laid down provisions for securing the position of both Finns and Swedes as subjects in the new situation, defined measures to ensure the continued functioning of the economy, and stipulated strict provi- sions for the protection of private property. The latter were very significant, especially with regard to the legitimacy of the administration, the pacification of society, and the safeguarding of the infrastructures in both Finland and Sweden. The post-war resumption of peace was not easy for either the Finns or the Swedes. However, the problems caused by the peace treaty were very different on the two sides of the Gulf of Bothnia. The problems in Finland were easier to solve because they were more concrete. The Grand Duchy of Finland, which was born out of the treaty, was permitted to maintain the existing Swedish legislative, social and local administrative framework, and a new central governmental machinery was created on top of it. In Sweden, the most important problems attending the return to peace (which could also be described as a ‘crisis of peace’) included the difficult question of the succession along with serious internal and economic issues. However, the most serious worry concerned the re-establishment and maintenance of the legitimacy of the government in the new situation.

Memo on Binary Economics to Attorneys for Women and People of Color Re: What Else Can Public Corporations Do for Your Clients?

Memo on Binary Economics to Attorneys for Women and People of Color Re: What Else Can Public Corporations Do for Your Clients?