Cornell Law Review Volume 91 Issue 3

The American Transformation of Waste Doctrine: A Pluralist Interpretation

This Article draws on an episode of nineteenth-century American doctrinal history to develop a pluralist approach to explaining changes in property law. It addresses the question: What causes account for the development of property regimes across time? The courts’ answer emerges from examination of nineteenth-century American reform of the law of waste, which governs the changes tenants may make in the estates they occupy. A line of state supreme court cases, beginning in 1810, transformed the doctrine from the strict rule of English common law to a flexible standard. Economic analysis helps to explain the change; the full story, however, emerges only upon consideration of two other influences on waste doctrine: republican political culture, and the belief that European settlers were under a natural-law obligation to subdue the American wilderness and make it a fruitful, agrarian landscape.


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