Law, Economy, and Society in Early New England. (Correspondence)
Mann, Bruce H., The Yale Law Journal
Claire Priest, Currency Policies and Legal Development in Colonial New England, 110 YALE L.J. 1303 (2001).
Claire Priest makes a valuable contribution to our understanding of the relationship between law and the economy in early New England in her recent article in these pages. (1) By drawing our attention to the obscure but nonetheless important subject of colonial currency policies and by demonstrating a correlation between currency instability and litigation volume, she adds a previously unexplored strand to the generally accepted explanation of how and why law changed in the eighteenth century--an explanation I first put forward fifteen years ago. (2) This by itself would be a worthy accomplishment. Priest, however, aspires to more. She argues that the prevailing interpretation of legal change in early New England is wrong and offers her account in its place. One can hardly deny the appeal of erecting a new edifice rather than adding to an existing one. Unfortunately, Priest misrepresents the scholarship she purports to overturn. More unfortunately still, as a stand-alone interpretation of legal change, her account drains the field of much of its nuance by removing society from the triad of law, economy, and society. In this brief reply, I demonstrate where Priest went wrong and suggest how she could have gotten it right had she not overreached.
The core of Priest's contribution is her analysis of debt litigation in Plymouth County, Massachusetts, from 1718 to 1751, in which she establishes a correlation between rises and falls in the volume of debt litigation and periods of decrease and increase in the supply and value of paper currency. (3) As she recognizes, demonstration of an empirical fact, however interesting in itself, is but a first step toward explaining how and why it occurred and what its significance is. It is here that she goes astray. To Priest, the data prove that "the legal and economic changes of the first half of the eighteenth century in New England did not emerge endogenously out of individuals' obligations, shaped by local conditions and enforced by local courts," but rather from "the effort by colonial legislatures to expand their powers and to gain control over the economy by issuing the first paper currencies and by taxing in paper currency." (4) She argues that previous legal historians have erred by focusing on "judicial decisionmaking" as "the best means of assessing the role of law in economic development" and that this focus has led them to the false conclusion that "judges actively promoted an agenda in harmony with local preferences"--that is, "optimally satisfying the legal needs of local communities." (5) The errant legal historians fall into two camps, each wrong but for different reasons. The first is led by Morton Horwitz, who highlighted what he regarded as the dynamic instrumentalism of nineteenth-century judges by dismissing law in the colonial period as static and bound by the anticommercial values of an agrarian, communitarian society. (6) The second camp is a group that Priest labels "modernization theorists"--primarily Cornelia Dayton and myself. (7) According to Priest, Dayton and I argued that, whereas judges in the seventeenth century "tailored their decisions to individual litigants and to the relationship between the parties underlying the transaction," judges in the eighteenth century "began to apply more formal and predictable legal rules" in response to economic growth, thereby promoting "even further economic development." (8) Our evidence for this, in Priest's characterization, is statistics that show an exponential rise in the volume of civil litigation, attributable primarily to an increase in debt litigation, which we claim "accompanied a process of legal formalization and was a function of economic advance and commercialization." (9) This is the "modernization hypothesis--economic growth leading to greater legal predictability and resulting in exponential increases in litigation" (10)--that Priest purports to disprove. …