Daniel J. Hulsebosch, New York University School of Law, has posted Confiscation Nation: Settler Postcolonialism and the Property Paradox, which is forthcoming in the Yale Journal of Law and the Humanities:
This essay, part of a forum on Claire Priest’s Credit Nation: Property Laws and Institutions in Early America, points toward a different framing for the history of property and credit in early America, one compatible with many of Priest’s finding but that trades off the theoretical elegance of the New Institutional Economics in favor of wider historical context that includes space for revolutionary ideas. It places the destabilization of property, including confiscation, at the center of the creation of American property law. Consequently, it focuses on the revolutionary struggle for property: a struggle over how property was supposed to function politically; who could own it; and where to resolve conflicting claims to it. Although much American property law remained the same after as before the Revolution, the changes were significant. The Treaty of Peace memorialized the largest changes by including substantial guarantees to British creditors and confirming a trend in the law of nations toward shielding foreign debt from wartime predations. That same treaty, however, contained no guarantee that the states would return or provide restitution for the massive confiscation of property from American loyalists and absentee Britons. The resulting compound of the new American property included well-advertised solicitude toward foreign creditors; public subsidies of patriotic debtors; and the expropriation of property from those excluded from political membership. These elements helped build states, not just markets. Finally, the essay contributes to answering one of the chestnuts of American legal history to which Priest gives new urgency: Why did some (but not all) states eliminate the property estate of fee tail in the revolutionary era? Building on the republican or anti-aristocracy explanation, the essay argues that eliminating fee tail enabled some states to perfect the confiscation of massive loyalist estates held, in some instances, by actual aristocrats.
--Dan Ernst
