Tuesday, August 15, 2006

Two by Roark

Marc Lane Roark (Smith, Gambrell & Russell, LLP) has posted two articles on SSRN on property subjects:

Louisiana Colonial Slave Law - Revolution, Property and Race:

Using the slavery experience of colonial Louisiana, this article argues that sentiment, revealed as political ideology, operated in a parallel dimension with the market, isolated from interaction with the economic dimensions, so that there would be no disruption in either. The law served to insulate both in their separate spheres - honoring both ideological and economic concerns. This article thus recommends a slightly different conclusion than Tushnet and a far different conclusion than Cover - that in the face of political ideology that was prime for emancipation of slaves and an economy that was not yet firmly entrenched as agriculturally dependant, that the law reconciled both the economy and ideology by altering the defining characteristics of humanity, making them personal, valueless and white. Conversely, the slave was exactly the opposite - without legal personality, value rich, and non-white. In this sense, white planters were able in good conscious to continue rhetoric that claimed all men are created free and equal, while driving humans under forced labor conditions. The article begins by describing the political and ideological landscape of colonial Louisiana. Turning to the law, the article considers two ways that the law changes the identity of slaves - first as economic units, and second as non-white persons. Indeed, the observation that slaves were black may be too obvious to state; but towards the end of the eighteenth century, the non-white status of slaves became a determinative social and legal factor in the colony. The article concludes hypothesizing that one of law's most salient features is to remove personal conscious from legal decision making.

The Constitution as Idea: Defining Describing Deciding in Kelo:

In June 2005, the Supreme Court in a Five to Four Decision marked its most controversial decision in recent memory. The case of Kelo v. City of New London, set off a fire storm of response to the Court's ruling that economic development takings satisfied the Fifth Amendment. This essay is about how the Court uses words, how the defining ability of words create institutional space in which the Court operates, and which defines things beyond the words. The essay focuses on notions of Space and Place to define physical ideas and institutional ideas.

UPDATE:  As Al mentions in the comments, we've commented on Roarke's work before.  I thought some of this sounded familiar!

Ben Barros

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Propertyprof readers may recall our discussion of Roark's Louisiana paper last June.

Posted by: Al | Aug 15, 2006 12:51:55 PM

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