A New History of Waste Law: How a Misunderstood Doctrine Shaped Ideas about the Transformation of Law

71 Pages Posted: 14 Oct 2015 Last revised: 3 May 2016

See all articles by Jill Fraley

Jill Fraley

Washington and Lee University - School of Law

Date Written: October 23, 2015


In the traditional account, American courts transformed the law of waste, radically diverging from British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law.

That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the modern rule in comparison with the drawbacks of the earlier, common law rule. A full history, reaching back to the common law doctrine has not been written until now. This article provides a legal history of the doctrine of waste, exploring the original common law doctrine prior to the nineteenth century transformation, and demonstrating the multiple flaws of the traditional account.

This article demonstrates that there is little support for the traditional story of a radical and American break motivated by land development. A full account demonstrates that the change was not radical, but rather consistent with centuries of British law. The shift also was not particularly American, but rather roughly contemporaneous with and parallel to a British shift. Most importantly, courts in both countries shifted doctrines to address a change in the technology of surveying and title recordation, rather than in response to economic forces.

This new history of waste law also offers a critique of theories of the transformation of law, along with current methods in legal history that privilege social factors and economic circumstances and largely abandon the traditional legal history methods of tracing the evolution of doctrine. Abandoning doctrine and privileging social factors has detracted from accurately understanding both legal transformation and the role of law — and particularly property law — in American society, suggesting that law is much more flexible and responsive to social change than it necessarily is in everyday politics

Keywords: Waste Law, Resource Exploitation, Morton Horwitz

JEL Classification: K10, K11, K32

Suggested Citation

Fraley, Jill, A New History of Waste Law: How a Misunderstood Doctrine Shaped Ideas about the Transformation of Law (October 23, 2015). Washington & Lee Legal Studies Paper No. 2015, Available at SSRN: https://ssrn.com/abstract=2673652 or http://dx.doi.org/10.2139/ssrn.2673652

Jill Fraley (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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