Welcome to the Yale Law School Legal Scholarship Repository. This repository provides open, global access to the scholarship of Yale Law School faculty and jornals, as well as a selection of unique collections.
Communities in Yale Law School Open Scholarship Repository
Select a community to browse its collections.
Recently Added
-
Eliding Original Understanding in Cedar Point Nursery v. HassidCedar Point Nursey v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled the decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding. American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries unless they caused economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even a rejection of what made the new nation a land of liberty.
-
Caribbean “Credit Nations”: Consignment Economies in the British West IndiesA central tenet of English property law has been the protection of land and the interests of potential interest holders in such land. For centuries, creditors could not reach land to satisfy debts either in the British Isles or in the colonies. Against this background, Claire Priest delineates how the British Parliament, in a series of deeply controversial moves culminating in the Debt Recovery Act of 1732, modernized law in the American colonies so that it privileged creditors. More specifically, the Debt Recovery Act made it possible for creditors of colonial debtors to execute debt judgments on real property as well as on enslaved people for the recovery of debts. Colonial governments in the American colonies, building on this legislative framework, also promoted innovations that would allow creditors to reach both land and slaves more easily. For example, several colonial statutes were passed to make clear that enslaved persons were property that could be utilized as collateral for loans, and also auctioned, in the event that debtors later defaulted.
-
Rethinking Property Rights in the Light of Credit NationThe publication of Claire Priest’s new book, Credit Nation: Property Laws and Institutions in Early America, is an occasion well worth marking. Several years ago, when I read her article Creating an American Property Law, the first piece in the project that became this book, I was dumfounded. The subject of that article, the Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America, enacted by the British Parliament in 1732, was a major, unilateral revision of property rights to land in the colonies, though not in Britain. The act not only made it possible for creditors of colonial borrowers to seize land in payment of unsecured debts, but it stripped future generations of property rights that had long been secured to them under English law. How could it be that a redistribution of this importance was so little known until Priest called attention to it? How could it have been so completely ignored in writing on colonial political, legal, and economic history, especially in accounts of the British impositions that led to the Revolution? Much more minor afflictions, such as Virginia Governor Dinwiddie’s attempt in 1752 to levy the fee of one pistole for sealing land patents, have been singled out as precursors to the rebellion: “Liberty & Property and no Pistole!” Priest’s work not only remedies this omission, but by connecting the debt recovery act to later Revolutionary-era events, provides a deeper understanding of the protests over Dinwiddie’s fee, as well as over later, more consequential, levies such as the Stamp Act.
-
A Glimpse of Early Modern Governance in Claire Priest’s Credit NationClaire Priest’s remarkable book serves up a whole new view of commercial relations in the colonies that were to become the United States. Her striking revelation of the importance of slavery in colonial commercial innovation will undoubtedly catch the attention of readers and reviewers, coming as it does at a moment when the history of slavery has come under an especially searching spotlight. A second theme that will capture attention runs through the entire book: the countervailing efforts of colonial entrepreneurs to borrow and thus take potentially wealth-producing risks while also leavening risk with now-obsolete property devices like entailed fees. Both these themes necessitate revisions of conventional views. The first revision, among others, concerns the geography of colonial commercial growth, which, as Claire reveals, very much involved trafficking in enslaved persons. The conventional view of colonial entrepreneurship is that the major location was in the north: Yankee clippers plying the seas, Ben Franklin types setting up print shops, Paul Revere producing silver goods, and so on. But in Claire’s book, the major financial innovators were the southern planters, taking on debt to invest in what looks like industrial agriculture—staple crops like indigo and tobacco—and for that purpose pledging not only their land as surety but their slaves as well.
-
Property and Credit: A Legal and Economic HistoryMany legal historians engage in various forms of critique of capitalism and Western colonialism. Very few actually study capitalism from the inside, addressing questions related to capital accumulation, financial institutions, entrepreneurs, or business corporations. Fewer still scrutinize, from the inside, the connections between capitalism and colonialism, by studying global trade, capital flows, the City of London, or multinationals. Some of the historians who have been attracted to these internal issues in recent years and identify themselves as new historians of capitalism avoid economic history and economic theory, it would seem, due to ideological hostility, ignorance, or a lack of the specific competencies required in these realms. Few of these historians pay attention to law. But the group of scholars who are involved in what I term legal-economic history—historians who are willing to tackle the details of legal doctrines and institutions, on the one hand, and draw on economic history literature and insights from economic theory, on the other—is markedly small. I can think of fewer than a dozen such active legal-economic historians. Claire Priest is one of these exceptional few. She does legal-economic history of the kind I appreciate and aim to do myself. In Credit Nation, she employs economic history literature and engages with economic historians.





