Price on Stability and Change in Antebellum Property Law: A Study of Judicial Rhetoric

Stability and Change in Antebellum Property Law: A Study of Judicial Rhetoric is a new essay by Polly J. Price, Emory University School of Law. It appears in Transformations in American Legal History: Essays in Honor of Morton J. Horwitz, Daniel W. Hamilton and Alfred L. Brophy, eds. (Cambridge, Harvard Law School, 2008). Here's the abstract:

This essay, appearing in a collection in honor of Morton J. Horwitz, explores one aspect of judicial methodology inspired by The Transformation of American Law, 1780-1860 (1977) - the extent to which judges viewed themselves to be primarily responsible for stability in the law. In the antebellum United States, judges, in their rhetoric at least, expressed a profound interest in maintaining stability in order to preserve certain property rights. This view self-consciously recognized the undesirability of changing common-law rules which had created property reliance interests. State court judges discussed the protection of settled expectations about property and contracts to be essential to the preservation of property rights.

Although the rhetoric associated with the stare decisis property rule no doubt served a legitimating function, and it was probably ignored when for instrumental reasons courts wanted to change the rules, the concept is invoked frequently enough that one can draw more general conclusions about judicial attitudes toward the stability of property rights. Judges viewed abrupt changes in precedent to be undesirable when settled property expectations would be disturbed.

At another level, the rhetoric of stare decisis employed by antebellum jurists in questions relating to property rules was not a concern that private property might be taken for public benefit without compensation, but instead expressed the absolute prohibition to the taking of property from A to give to B - a power courts expressly denied to the legislature in this period. In this sense, it is correct to state that these state court judges would not have recognized a general prohibition against "judicial takings" as the issue is argued today.

Many judges, however, believed it was important to honor the "reasonable expectations" of property owners and those engaged in commercial transactions based upon their general understanding of common-law rules, or at least the settled understanding as those judges could discern it. These judges clearly showed an appreciation of the potential effect of their decisions on property reliance interests, but their focus was a pragmatic concern for economic stability that was sometimes paramount to the reliance interest of a particular individual.