Harry N. Scheiber

Property Law, Expropriation, and Resource Allocation by Government: the United States, 1789–1910

Expropriation of private property by government is seldom found on the list of policies which have influenced the course of economic development in American history. To be sure, the once-vigorous myth of antebellum laisser-faire has been discarded; and it is no longer taken as a startling proposition that governmental interventions to promote and regulate the economy occurred regularly throughout the nineteenth century. But for two reasons, I think, expropriation as an instrument of conscious resource allocation has failed to receive from historians the attention it deserves.

Regulation, Property Rights, and Definition of “The Market”: Law and the American Economy

This article identifies four problems in the recent interdisciplinary studies of property rights, law, and economic development in the nineteenth-century United States. First, recent studies stress too exclusively the positive functions of law in either the “release of entrepreneurial energy” or the exploitative allocation of advantages (by courts and legislatures) to the business interests leading industrialization. Second, the dichotomy between alleged “instrumentalism” as the prevailing judicial style before 1860 and “formalism” after 1865 has been exaggerated. Third, generalizations have been based too much on the eastern states and Wisconsin. Fourth, there has been a failure to identify accurately the winners and losers in the struggle over regulation and the definition of property rights. Thus, although rediscovery of the importance of institutions by economists and the renaissance of legal history among historians and legal scholars constitute welcome (converging) developments in recent scholarship, much more research is needed on these main themes in the literature.

The Pet Banks in Jacksonian Politics and Finance, 1833–1841

In September 1833, Andrew Jackson issued an executive order ending deposit of Federal funds in the Bank of the United States, which had been the government depository since 1817. The culmination of Jacksons long struggle with the Bank and its friends in Congress, this measure closed a chapter in the political history of the era. To the conservative Jacksonians, “victory over the Bank of the United States was a consummation†that freed the state banks and business enterprise from the control of a powerful and despised institution. To the radical, hard-money faction of the Democratic party, however, “removal of the deposits†(as the order was popularly termed) was merely a first step toward more fundamental reform—elimination of the monetary disturbances that they attributed to reliance on bank paper for the currency of the country. Because of this divergence of views, partisan and factional disputes over Jacksonian financial policy did not cease with victory over the Bank. Central to the continuing debate was the relationship of die Treasury Department to the group of state-chartered banks, usually called the “pet banks,†in which Federal funds were deposited after September 1833. My purpose here is to review Treasury operations in die period 1833–1841, to suggest the political role of die pet banks and the economic impact of financial policy in die administrations of Jackson and Van Buren.

The great rights of mankind : a history of the American Bill of Rights

Chapter 1 Preface Chapter 2 English Antecedents Chapter 3 Colonial Charters and Laws Chapter 4 Revolutionary Declarations and Constitutions Chapter 5 Confederation and Constitution Chapter 6 State Ratifying Conventions Chapter 7 The Great Rights Secured Chapter 8 The Bill of Rights in Operation Chapter 9 Afterword Chapter 10 Appendix A: Amendments Proposed by Madison, June 8, 1789 Chapter 11 Appendix B: Amendments Reported by House Select Committee, July 28, 1789 Chapter 12 Appendix C: Amendments Passed by House of Representatives, August 24, 1789 Chapter 13 Appendix D: Amendments Passed by Senate, September 9, 1789 Chapter 14 Appendix E: Amendments Passed by Congress, September 25, 1789 Chapter 15 Notes Chapter 16 Index

From Science to Law to Politics: An Historical View of the Ecosystem Idea and Its Effect on Resource Management

Introduction .................................................... 631 I. Emergence of an Ecosystem Research Vision .......... 636 II. Applying the Vision: The Post-War California Current Project .................................................. 640 III. Interdisciplinary Environmental Study and the California Coastal Zone Concept ....................... 645 IV. Conclusion: Dilemmas and Conundrums ................ 648

Historical memory, cultural claims, and environmental ethics in the jurisprudence of whaling regulation

Abstract This study considers in historical perspective the ethical and juridical norms relevant to commercial and indigenous whaling activities and their regulation. An assessment is offered of the records of the International Whaling Commission from 1946 to the present, and of individual whaling nations, especially Japan and Norway. The argument is made that historic behavior should matter, when the question is raised: What nations or interests come to the table with “clean hands”? The author rejects arguments by Japan, Norway, and various scholars that coastal whaling communities in industrialized countries should be regarded as equivalent to indigenous whaling communities such as the Inuit in justifying exceptions to the IWC moratorium. In light of whale species’ precarious condition and in light of past behavior by whaling fleets, only strongly based indigenous cultural claims should be permitted to trump a general rule against whaling.

From Extended Jurisdiction to Privatization: International Law, Biology, and Economics in the Marine Fisheries Debates, 1937-1976

1. Scheiber is the Stefan Riesenfeld Professor of Law and History, Boalt Hall School of Law, University of California, Berkeley. Carr received his J.D. from Boalt Hall in 1994 and is an associate at Beveridge & Diamond, LLP. He is also a Ph.D. candidate in the Jurisprudence and Social Policy Program at the University of California, Berkeley. This article is dedicated to Professor Stefan A. Riesenfeld on the occasion of his 90th birthday. Funding for this research was provided by a grant from the United States Department of Commerce (NOAA) and the State of California through the California Sea Grant College Program, to the Ocean Law and Policy Program, Center for the Study of Law and Society, University of California, Berkeley. Agencies of the United States Government may reprint or distribute without restriction. The authors wish to acknowledge research contributions in the projects early phase by Noah Baum, J.D., graduate student in the Jurisprudence and Social Policy Program, University of California, Berkeley, during the period of his service as a Sea Grant Trainee on the project; and to thank Professors James Wilen (UC Davis), Bonnie McCay (Rutgers University), Gfsli Pdlsson (University of Iceland), and other participants in the conference on ITQ policies at which a shorter (and preliminary) version of the present paper was first presented. The conference paper was published in a proceedings volume sponsored by the Nordic Council, see note 73, and portions are reprinted with copyright permission from the Council. We are also indebted to members of the Ocean Governance Study Group, especially Professors Biliana Cicin-Sain and Robert Knecht (University of Delaware), Richard Hildreth (University of Oregon), Jon Van Dyke and Casey Jarmon (University of Hawaii), David D. Caron (UC Berkeley), and, above all, William T. Burke (University of Washington) and Lee Anderson (University of Delaware) for provocative and insightful discussions of fishery policies at the annual OGSG meetings. We are also indebted to Ms. Kitty Simonds, Executive Director, Western Pacific Regional Fisheries Management Council, Honolulu, HI, for giving us access to the Councils extensive library collection; and to the late Prof. Kenneth Pitzer, College of Chemistry, UC Berkeley, for his advice on sources and his enthusiastic encouragement of the project.

Reflections on George Rogers Taylor's The Transportation Revolution, 1815–1860: A Twenty-five Year Retrospect

“All books are dead in twenty-five years,” Mr. Justice Holmes wrote to Sir Frederick Pollock. An example of Holmes’ mastery of the art of over-statement, the dictum has its notable exceptions, as even a relatively young discipline such as economic and business history reveals. Professors Scheiber and Salsbury make the case for the permanent impact of one such exception. At the Editors discretion, communications like the following may be published in the future about other milestones.

Property Rights versus “Public Necessity”: A Perspective on Emergency Powers and the Supreme Court

Chief Justice Earl Warren once wrote that a free government is continuously “on trial for its life.”1 And never are the foundations of constitutional liberties more fragile than in periods of emergency, when government invokes extraordinary powers. Invariably, emergency powers involve the immediate curtailment of some rights; at their extreme in martial law, they can warrant an entire suspension of normal civilian governmental functions, as well as full suspension of due-process guarantees.2 Once the constitutional fabric has been stretched to accommodate urgent public necessity in such situations, moreover, restoration to its earlier condition is not automatic or inevitable. On the contrary, as Justice Robert Jackson presciently warned, once the Supreme Court validates as constitutional the abridgement of essential rights during an emergency—and especially when the Court does so in relation to “the vague, undefined and undefinable ‘war power’”—any principle that is thus articulated to justify such emergency action “then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”3

State Policy and the Public Domain: The Ohio Canal Lands

One of the principal sectional issues in nineteenth-century American politics related to Federal subsidies for major transportation facilities in the territories and newer western states. Not unreasonably, western political and business leaders contended that tax revenues in newly settled areas were insufficient to support the cost of large-scale public transport projects. Road and canal facilities were essential to regional economic development, declared a Cincinnati editor in 1824; yet “the Western states … are too poor, too exhausted, to engage in those public works.†The states recently admitted to the Union, he asserted, required “the fostering aid of the nation.†But appeals for such aid ran into a bedeviling series of political and financial obstacles. First, military expenditures during the War of 1812 and the legacy of war debt drained the Federal Treasury of surplus funds. Then, Jeffersonian “strict constructionists,†notably Presidents Madison and Monroe, questioned on constitutional grounds the propriety of an active Federal role in transport development. Underlying the tortured constitutional debates was a basic sectional conflict, which posed the eastern and southern states (some of which had been supplicants themselves for Federal aid a few years earlier) against the claims of the West. Of all the major western demands for Federal patronage, the National Road was virtually the only project approved before 1824.