Jill Fraley of Washington and Lee University has recently posted a long and exciting article with a short title, "Waste Law," on ssrn. Cribbing now from the abstract:
The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’ influential view of the transformation of American law. While Horwitz’ general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’ account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.
Given that Horwitz’ overall theory of transformation has been criticized and that the evidence so little supports Horwitz’ account, the traction of Horwitz’ narrative of waste presents quite a quandary. By examining the resilience of Horwitz’ narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.
I always enjoy reading about the latest takes on The Transformation of American Law and also on changing methodologies of legal history. I think Jill's work reflects the re-emergence of doctrine as a key variable in legal history. Jill attributes a lot of the original waste doctrine (that life tenants could not modify the property, even by making improvements on it by, for instance, clearing the land for planting) because such changed threatened to erase evidence of boundaries. That is, Jill has an evidentiary based explanation of waste law. This shows the importance of a serious engagement with doctrine -- but her conclusion is pretty consistent with what a lot of other people have said about property law (including in some places Horwitz), that it's designed to promote stability. I think Jill's piece will reach a receptive audience among legal historians who are re-thinking the role of doctrine these days and maybe also returning to doctrine as a key variable of analysis.
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