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Friday, June 9, 2006

Hamilton on Limits of Sovereignty

Chicagosmall_phoenix_3I've been reading the fall university press catalogs, looking for books that Law and History Review needs to review.  I thought I'd mention today one book that propertyprof readers might enjoy: Daniel W. Hamilton's Limits of Sovereignty: Property Confiscation in the Union and the Confederacy During the Civil War.  Here's a description from the University of Chicago Press website:

Americans take for granted that government does not have the right to permanently seize private property without just compensation. Yet for much of American history, such a view constituted the weaker side of an ongoing argument about government sovereignty and individual rights. What brought about this drastic shift in legal and political thought?

Daniel W. Hamilton locates that change in the crucible of the Civil War. In the early days of the war, Congress passed the First and Second Confiscation Acts, authorizing the Union to seize private property in the rebellious states of the Confederacy, and the Confederate Congress responded with the broader Sequestration Act. The competing acts fueled a fierce, sustained debate among legislators and lawyers about the principles underlying alternative ideas of private property and state power, a debate which by 1870 was increasingly dominated by today’s view of more limited government power.

Through its exploration of this little-studied consequence of the debates over confiscation during the Civil War, The Limits of Sovereignty will be essential to an understanding of the place of private property in American law and legal history.

Commoditypropriety I was fortunate enough to read Hamilton's book for the press.  I think it is very good--and of much interest to the legal history and property communities.  Hamilton's interested in the ideology of property.  And he very effectively mines the debates over confiscation in both the United States Congress and the Confederate Congress.  If you, like many property profs, are interested in political theory behind property, I think you'll enjoy his book.  It joins other important University of Chicago Press books on property, like Gregory Alexander's Propriety and Commodity--another brilliant book, IMHO.  The University of Chicago Press will also shortly publish Alexander's The Global Debate over Constitutional Property: Lessons for American Takings Jurisprudence.  I haven't yet seen or read Alexander's Global Debate, but I am eagerly awaiting it and Hamilton's Limits of Sovereignty.

On the same page of the University of Chicago Press catalog is Kent Grennfield's The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities, which is another book I'm really looking forward to reading.  Here's the catalog's description of Failure of Corporate Law:

When used in conjunction with corporations, the term “public” is misleading. Anyone can purchase shares of stock, but public corporations themselves are uninhibited by a sense of societal obligation or strict public oversight. In fact, managers of most large firms are prohibited by law from taking into account the interests of the public in decision making, if doing so hurts shareholders. But this has not always been the case, as until the beginning of the twentieth century, public corporations were deemed to have important civic responsibilities. 

With The Failure of Corporate Law, Kent Greenfield hopes to return corporate law to a system in which the public has a greater say in how firms are governed. Greenfield maintains that the laws controlling firms should be much more protective of the public interest and of the corporation’s various stakeholders, such as employees. Only when the law of corporations is evaluated as a branch of public law—as with constitutional law or environmental law—will it be clear what types of changes can be made in corporate governance to improve the common good. Greenfield proposes changes in corporate governance that would enable corporations to meet the progressive goal of creating wealth for society as a whole rather than merely for shareholders and executives.

I think there are a lot of parallels between what Kent does with corporate law and what Joseph Singer does with property in Entitlement and Edges of the Field.  I hope to talk a little more about this after I've had a chance to read The Failure of Corporate Law.

Alfred L. Brophy

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We're spoken about Daniel Hamilton's The Limits of Sovereignty already. I'm delighted to say that it's now out from the University of Chicago Press. Here's the Press' description:Americans take for granted that government does not have the right to per... [Read More]

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