The American Transformation of Waste Doctrine: A Pluralist Interpretation

Document Type



The most up-to-date version of this piece can be found in the Duke Law Scholarship


Professor Purdy takes an early American change in the common-law doctrine of waste - governing relations between tenants and reversioners (sometimes landlords, sometimes heirs of deceased owners) - as an occasion to compare two modes of explaining doctrinal change: one exclusively economic, the other embracing political and ideological as well as economic explanations of individual and institutional behavior. Professor Purdy concludes that the fullest and most convincing interpretation of waste doctrine's transformation from English to American common law emerges from a pluralist account. He insists, however, that economic explanation not only has a central place in doctrinal interpretation, but is enriched even on its own terms by the addition of plural elements.

Early American courts moved the law governing tenants' use of land from a bright-line rule to a fuzzy standard. Courts styled the change an effort to rationalize the law in light of the very different proportions of land, labor, and capital present in North America as against those prevailing in England. Curiously, however, basic economic analysis of the American doctrine suggests it was not a clear improvement as an efficiency-enhancing device. The doctrine emerged, moreover, in the context of quasi-feudal landlord-tenant relations in the manorial estates of the Hudson Valley, which were in many respects the bete noir of the broadly republican ethos then prevalent in American law and politics. By examining the context of the seminal case and the thought of one its deciding judges - New York's Chancellor James Kent - on the relationship of property law to republican society, Professor Purdy shows how the change would have seemed attractive from the point of view of creating a formally egalitarian free-market society. This interpretation is not so much at odds with a conventional economic explanation as it is illuminating of what market economics meant in early eighteenth-century America. The free market described a set of social relationships, regarded as the antithesis of feudal hierarchy, which legislators and jurists did not assume as given, but set about deliberately to create, always in the shadow of the feudal counterpoint.

Date of Authorship for this Version

September 2005