Impact of Richard A. Epstein

Presented at the 2005 Brigham-Kanner Property Rights Conference

Still in Exile? The Current Status of the Contract Clause

The Contract Clause is no longer the subject of much judicial solicitude or academic interest.\u27 Since the 1930s the once potent Contract Clause has been largely relegated to the outer reaches of constitutional law.2 This, of course, was not always the case. On the contrary, throughout the nineteenth century the Contract Clause was one of the most litigated provisions of the Constitution. In 1896, Justice George Shiras astutely commented: No provision of the constitution of the United States has received more frequent consideration by this court than that which provides that no state shall pass any law impairing the obligation of contracts. \u27 A brief survey of the evolution of contract clause jurisprudence helps to put into perspective the current desuetude of the Clause

American Independence and the Law: A Study of Post-Revolutionary South Carolina Legislation

Joseph Brevard, a South Carolina judge, observed in 1814 that the laws of a country form the most instructive portion of its history. Certainly the successive printed collections of state statutes are among the most reliable and readily available sources for early American legal history. While statutes on their face do not reveal the extent to which they proved effective, the fact remains that to a unique degree statute law, as the product of the legislative process, mirrors the considered values and ideals of a society. Yet the legal history of South Carolina, and indeed that of most southern states, remains largely unexplored. This study attempts to fill part of the gap with an analysis of South Carolina statutory law in the immediate post-Revolutionary era, between the British evacuation of Charleston in December of 1782 and the ratification of the Constitution of the United States in 1788. An investigation of the statutes governing the state during these years should furnish some insight into the impact of the Revolution upon the status of the law as well as the functioning of South Carolina society in the Critical Period. These crucial and unsettled years would see Carolinians follow their victory in the Revolution with the restoration of civil government

Book Review: Unfinished Business: A Civil Rights Strategy for America\u27s Third Century. by Clint Bolick; Property and the Politics of Entitlement. by John Brigham; Regulatory Taking: The Limits of Land Use Controls. Edited by G. Richard Hill.

Book review: Unfinished Business: A Civil Rights Strategy for America\u27s Third Century. By Clint Bolick. San Francisco, Calif.: Pacific Research Institute for Public Policy. 1990 ; Property and the Politics of Entitlement. By John Brigham. Philadelphia, Penn.: Temple University Press. 1990. Pp. xi, 223 ; Regulatory Taking: The Limits of Land Use Controls. Edited by G. Richard Hill. Chicago, Ill.: Section of Urban, State and Local Government Law, American Bar Association. 1990. Pp. xix, 422. Reviewed by: James W. Ely, Jr

How Far Does Natural Law Protect Private Property?

This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century. The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical review, it concludes that natural law, standing alone, is largely theoretical and does not appear to offer meaningful guidance to current problems

Buchanan and the Right to Acquire Property

This article examines the impact of the Supreme Court decision in Buchanan v. Warley (1917) invalidating residential segregation laws as a deprivation of property rights without due process of law. The decision was premised on a strong affirmation of the right to acquire property. The article explores the historical background and contemporary significance of the right to acquire property. It notes that early state constitutions expressly recognized such a right. It points out that the right to acquire found practical expression in hostility to state-conferred monopoly and in the right to follow common occupations, two doctrines which evolved under the due process clause of the Fourteenth Amendment. The article stresses that the right to acquire property, as in Buchanan, serves to protect the interests of the economically disadvantaged, racial minorities, and fledgling entrepreneurs. Although courts continued to invoke the right to acquire property, by the early twentieth century such right was increasingly limited by the spread of occupational licensing and enactment of laws hampering competition in certain businesses. This trend was facilitated by the emergence of New Deal jurisprudence which downplayed the rights of property owners and emphasized judicial deference to the economic judgment of legislators. As judicial review of economic regulations became largely perfunctory, occupational licensing and entry barriers proliferated in the years following World War II. Recently, however, some courts have looked skeptically at laws restricting entry into common occupations. The article concludes that the right to acquire property, although often ignored, retains some vitality