Browsing by Author "Drobak, John N."

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The Constitutional Protection of Property Rights: Lessons from the United States and Germany
(2005) Drobak, John N.; Strube, Julie D.
"Constitutional limitations on a government's power to confiscate property, whether by an outright taking of title or by excessive regulation, are important to economic growth. Over the past 200 years, the Supreme Court of the United States has used different clauses in the constitution as the basis for this protection. When the usefulness of one clause waned, the Supreme Court turned to another clause to continue its protection of property rights. Our paper will trace the path from the use of the contract clause in the nineteenth century to the rise of substantive due process after the Civil War and its demise during the New Deal to the modern use of the takings clause. After analyzing the extent of the protection accorded property rights in the United States today, we will turn to the German constitution for a comparison of constitutional property rights protection. In many ways, the German courts have used Article 14 of the German constitution to provide similar protection to that given in the United States. However, the German courts have used a principle of Aproportionality as a basis for greater scrutiny of legislative action. We will show that the German proportionality principle is similar to the principles that had been used in the United States under substantive due process but no longer apply under the takings clause. We will also show that the decision of the United States Supreme Court and the German Constitutional Court are so similar that they could be viewed as part of one legal doctrine, both in terms of analysis and outcome. Next we will examine why the constitutional law of the two countries are so similar given two constitutional provisions with vastly different language. Finally, we will conclude by considering the lessons we can draw from the similar enforcement of the two different constitutional provisions and the lessons each country can draw from the other's experience."
The Courts and Slavery in the United States: Property Rights and Credible Commitments
(1992) Drobak, John N.
"Recent literature has examined the role of Congress in creating a credible commitment to the institution of slavery in the antebellum United States. This paper explains the contributions of the courts to that commitment. The paper first shows the disparity in the rulings between the state courts in the North and South in cases concerning the freedom of nonresident slaves. Then the paper examines the attempts by the federal courts to strengthen the national commitment to slavery and mitigate the anti-slavery conduct of the North. The paper concludes by showing the futility of the decision in Dred Scott, an opinion that failed in its attempt to reinforce the federal government's commitment to slavery because the courts could not overcome the decades of increasing hostility to slavery. Not only did the Supreme Court in Dred Scott fail to placate the South, the Court exacerbated the tension between the North and South and helped move the country even closer to civil war. The episode described in this paper illustrates how sometimes a government institution can no longer make a formal commitment credible when the public has renounced that commitment."
Credible Commitment in the United States: Structural and Substantive Limits on the Avoidance of Public Debt
(1995) Drobak, John N.
"Institution s are crucial to economic growth. Institutions that create the right incentives, that create confidence in the economic system, that allow business to achieve productive efficiencies and to realize the gains from trade, all make the chance of economic growth more likely. Institutions that do otherwise make economic growth very difficult. Institutions come in many forms and arise from different sources -- for example, standards of behavior established by religion , ideology or culture ; or customs developed by firms interacting in the same industry. Over the centuries of our country's existence, the law has been one of the most important institution s advancing economic growth. A small, but important, part of that success comes from the law's role in creating confidence in government debt."