by Jedediah Purdy. New Haven: Yale University Press 2010. 240 pp. Cloth $28.00. ISBN 9780300115451.
Reviewed by Andrew Morriss, D. Paul Jones, Jr. & Charlene A. Jones Chairholder in Law & Professor of Business, The University of Alabama School of Law. Email: amorriss [at] law.ua.edu.
Duke law professor Jedediah Purdy has written a fascinating but frustrating account of property law that makes a valiant attempt at constructing a theoretical framework within which to think about a wide range of interesting questions. The book embodies the contradictions of the legal academy – a strange world in which I spend most of my professional time – by reaching for a grand theory and weaving a compelling story out of diverse sources but ultimately falling short of achieving its ambitious goals. It falls short in part because grand legal theorizing lacks the solid disciplinary foundation that exists in political science, economics, philosophy, and anthropology. Despite that caveat, Purdy’s writing is superb and the intellectual ride the book offers is well worth the journey, even if the destination is ultimately not quite convincing. In particular, the book ought to make the rest of the legal academy be embarrassed about our writing – it had that impact on me – as it is a pleasure to read. Purdy is a contributor to journals like The Atlantic Monthly as well as to elite law journals and perhaps that experience has helped him develop such a fluid style.
The book is divided into three parts: Origins, Crises, and Reclamations, bracketed by a brief introduction on “Blackstone’s Sociability” and a brief afterward. Origins delves into English property law and political thought, opening with a quote from the Putney debates conducted by the officers of Cromwell’s New Model Army, passing through John Locke, and then delving deeply into the development of the transformation of the English law of waste in the 1810 New York case of Jackson v. Brownson. Waste was the area of law governing relations between multiple owners sharing a variety of interests in a single property. One who holds a property for his life cannot commit waste by destroying the value of the property to the detriment of the owner of the interest who will come into possession upon the death of the life tenant.
Purdy is an excellent legal thinker and his dissection of the nuances of Jackson is masterful. He also does a thorough job of setting his interpretation in contrast to Richard Posner’s economic, Morton Horowitz’s class-based, and John Sprankling’s environmentalist accounts of the same case. Purdy instead argues that “U.S. courts refashioned the law of waste for several reasons: to promote efficient use of resources that English law would have inhibited; to advance an idea of American landholding as a republican enterprise, free of feudal hierarchy; and because of a belief that the cultivation of wild land underlay the Anglo-American [*645] claim to North America. These values were parts of a single logic in the legal imagination traced in this book. They figured not as alternatives but as elements of a single vision of property in a social order” (pp.46-47).
Purdy’s claim is a bold one and the conception of a legal imagination that he uses to make it is a powerful construct. Yet it is hard not to wonder whether the law of waste – a relative backwater in the law of property and a tiny piece of the larger developments in American law – can really bear all the weight he has placed on it. Waste is interesting as a theoretical matter, and Purdy does a marvelous job of picking out all the issues that division of interests in a single property creates. But waste just is not important enough to stand in for the overall development of the law. There were many more significant legal developments in nineteenth century America, such as the law of negligence. It would be easier to accept the larger points Purdy makes if his discussion of waste had more connection to those developments as well.
More importantly, Purdy focuses largely on atypical judges like New York’s James Kent. Purdy is offering a book about ideas, so it is not surprising that he spends most of his time talking about judges like Kent, whose massive Commentaries on American Law offer lots of raw material. But this focus on ideas neglects what American judges said they were doing. Perhaps judges’ decisions were shaped by the three classes of values Purdy identifies, but mostly what nineteenth century American judges said they were doing was constructing legal arguments based on precedent. Posner’s account of nineteenth century American legal developments has been rightly criticized for attributing economic efficiency as a value to a process that never mentions it. Purdy’s case is stronger than Posner’s, but not by as much as he suggests since he provides too little support that the large intellectual disputes mattered in the run of the mill legal disputes that made up the vast majority of the law.
“Crises”, the second part of the book, begins with U.S. Supreme Court John Marshall’s opinion in the landmark case of Johnson v. M’Intosh, in which claims derived from the British crown clashed with those derived from Native American title. It then analyzes the legal and intellectual arguments over free labor and slavery. As in the first portion of the book, Purdy provides an enlightening and thoughtful dissection of Johnson and several slavery-related opinions. For example, he shows how Marshall’s treatment of the British Privy Council’s opinion in a case dealing with an analogous purchase of land in India reveals Marshall’s ambivalence over his opinion.
Virtually every law student in the United States encounters Johnson early in her property course, for it is widely recognized as a case that raises significant issues about the nature of claims to property. But Johnson is also an important outlier in property law, decided by a court itself largely irrelevant to the development of property law. Thus Johnson is well known among the law faculty or lawyers who are an audience for the book, and likely an audience of philosophers or political scientists who think about property as well. But it is a thin reed upon which to construct a theory about the role property played in [*646] the lives of nineteenth century Americans precisely because it had little to do with the role of property law in people’s day-to-day lives. Purdy offers keen insight to Justice Marshall’s conflicted views but Marshall’s views on property represented the views of only a tiny minority of Americans. To take just one example, Andrew Jackson had none of Marshall’s qualms about applying the law of conquest to settle land ownership disputes with Native Americans and Jackson commanded broader support on that point than Marshall ever did.
The treatment of the free labor idea is more satisfying because Purdy supports his analysis with a broader range of evidence. Rooted in self-ownership, the free labor idea was a powerful part of American jurisprudence. But even here Purdy’s evidence is largely drawn from debates over ideas. This ignores the context of the legal expression of free labor ideas: in courts, deciding disputes where judges had to worry about balancing their roles with juries’, where many judges were elected, and where legal resources were often few and far between.
The third part of the book, Reclamations, begins with chapter that mixes Bentham and micro-finance programs in Bangladesh, Amartya Sen and Kenneth Arrow. On one level, the reader must simply applaud as Purdy keeps an astonishing number of balls in the air throughout this chapter. The point of the juggling is less clear, however. There is little connection with the earlier portions of the book or with the policy discussions that follow in the next chapter. Despite rereading this chapter several times, it was never quite clear to me where it fit in the overall argument made in the book.
The final substantive chapter offers what Purdy calls a “sketch” of how we might use his approach to analyze policies for income supports, climate change, and intellectual property law. These are indeed sketches, as there is almost none of the detailed discussion of ideas and their consequences. Instead there are brief summaries of the problems: we need incentives for people to make good choices, but much of our success is due to factors outside our control; an environmental problem that affects the entire world is hard to get individuals to sacrifice to address when most of the benefits go to others; artists create works using bits and pieces of our common culture and then fence off their content from others seeking to do the same using copyright laws. What is to be done? Purdy concludes by stating that “Both climate change and the digital age demand as much technical expertise, and as broad a range of it, as any problem in history. Natural science, engineering, and conventional economics are all indispensable. Nonetheless, the problems are more than technical. Technical solutions will interact with developing ideas about what is right, fair, and dignified. Success will mean moving outward the limits of the possible” (pp.155-56).
This is a book about ideas, generally the ideas of a relatively small group of people who spent time writing down their ideas in legal opinions, books of philosophy, economics articles, and other things that intellectuals spend their time reading. The claim it makes is that not only do those ideas matter but that we can learn from the history of the development of those ideas about current problems, including some quite difficult [*647] ones. That is a difficult claim to substantiate and, almost to the end, Purdy makes an extremely strong case that he’s got hold of an interesting thread in the intellectual development of the modern world. As noted above, it sometimes seems like a thin reed upon which to place as much weight as he does. If the best that a history of ideas has to offer is “moving outward the limits of the possible,” the level of skepticism about the enterprise is bound to increase.
A reviewer must always be wary of lecturing an author for not writing the book the reviewer imagines he would have written in the author’s place. I do not think it crosses that line to wish that Purdy had looked at a few more ideas from people who disagree with his approach. For example, his climate change discussion asks whether “we will develop a moral vision of global ecology that will power value-based decisions by people whose identity involves doing the right thing by the planet. We know that this is not just airy talk – not necessarily, anyway – because it has been a precondition of our politics concerning other environmental issues, such as water pollution and open-lands conservation” (p.144). Maybe.
If Purdy grappled with the ideas of public choice economists, he’d know that many environmental laws involve what my friend and sometime coauthor Bruce Yandle calls a “bootleggers and Baptists” coalition. In such a coalition, the “Baptists” provide a high moral purpose for legislation (just as real Baptists do for Sunday closing laws in the South) while the “bootleggers” gain an advantage through inserting special interest provisions in the law (just like real bootleggers do by shutting down their legal competitors through those Sunday closing laws). Indeed, in both Purdy’s paradigmatic cases of water pollution and land conservation, there is powerful evidence of special interests using the cover of environmental regulation to advance their own welfare. Not every law is a special interest feeding frenzy, of course. But to ignore the role of special interests in shaping environmental law when the prescription is a call for a moral dialogue is a recipe for failure. It is not just on this point that a broader net might have served him well. Terry L. Anderson and Fred McChesney’s “raid or trade” model provides an alternative way to think about settlers’ relations with Native Americans that could have broadened the discussion about those issues. Rather than turn on intellectual currents, Anderson and McChesney show how it was settlers’ ability to capture Army resources that determined the level of conflict. If they would have to fight the Native Americans themselves, settlers were happy to trade. If the Army would do the fighting for them, expropriation became the preferred option. Again, because Purdy’s argument ultimately ends up with moral exhortation, a clearer discussion of the role of self-interest would have been useful.
Walter Russell Mead’s recent three part essay on “The Failure of Al Gore” in The American Interest is a comprehensive analysis of how former vice president Al Gore failed to move us toward a Global Green Climate Treaty. One of Mead’s main points is that Gore failed on climate change in part because the proposed remedy – a complex Global Green Climate Treaty – was “so enormously complicated, so economically expensive, so administratively difficult, so dependent on the coordination and [*648] cooperation of so many different powerful political interests with radically different agendas that its adoption was extremely unlikely. Any serious discussion of the merits of the GGCT would be fatal because the more the world reflects on the topic the more the world’s diplomats, policy makers and opinion leaders realize just how utopian and unworkable this ‘strategy’ really is.”
Mead’s point is relevant for Purdy too. At some point the intellectual arguments have to roll up their sleeves and get dirty, writing legislation, treaties, regulations, and so forth. When it came to that point, Purdy punted to moving the limits of the possible. Given the skill with which he constructed the arguments in this book, his envious facility with words, and the breadth of his reading and research, it is not unreasonable to expect a bit more from him, if not from Al Gore.
Anderson, Terry L. and Fred S. McChesney. 1994. “Raid or Trade? An Economic Model of Indian-White Relations,” 37 Journal of Law & Economics. 39.
Mead, Walter Russell. 2011. “The Failure of Al Gore,” http://blogs.the-american-interest.com/wrm/2011 /06/24/the-failure-of-al-gore-part-one/
Yandle, Bruce. 1983. “Bootleggers and Baptists: The Education of a Regulatory Economist,” Regulation (May/June), 12-16.
Jackson v. Brownson 7 Johns. 227, (N.Y. 1810).Johnson v. Mc’ntosh 21 U.S. (8 Wheat.) 543 (1823).
© Copyright 2011 by the author, Andrew P. Morriss