Twelfth Global Studies Conference

Abstract

A distinct feature of modern global economic governance is the enforcement of property-rights by rule or rule-like norms. My project explores the earlier origins of this development, by explaining why states came to enforce private property rights at all. In particular, I examine the case of the United States. Before the Civil War, localized conventions governed property ownership, and in court settings, juries deferred to customary practices over the black-and-white letter of common law. For most, written law existed only on paper. In short, property ‘rights’ were governed by idiosyncratic relationships rather than standardly applied rules or rule-like norms. By the end of the Antebellum era, courts emerged from this vehement anti-legalism as the most powerful redistributive force in the country, transferring power over ownership from people to rules, communities to courts, and insulating these from popular control. Following the revolution, an identifiable network of elite lawyers begins positioning itself in legislatures, executive and cabinet positions, judgeships, and law-school professorships. This small group of men formed tight-knit networks: they attended the same schools, read the same books, married into one another’s families, and appointed each other to the boards of their companies and to high ranking government positions. Together, these lawyers inhabited a key role in post-revolutionary governance, and self-consciously strove to craft a rule-like system of property ownership. Together, they enshrined their worldviews in legal thought and practice. This project reconstructs that worldview, traces its dissemination in legal education, and its institutionalization in legal practice.