Property, Contracts, and Politics

Authors

Mark Tushnet, Harvard Law SchoolFollow

Abstract

Rebecca Scott is a historian, not an economist. Describing how a dispute over a mule's ownership was resolved, Professor Scott reproduces a receipt two claimants left when they took the mule from the plantation whose manager claimed it as well (p. 185). By contrast, analyzing property relations in the pre-Civil War American South, economic historian Jenny Wahl observes, "[E]conomic historians tend to [use] ... frequency tables, graphs, and charts." The differences in visual aids to understanding indicate the various ways historians and economists approach a single topic-the relation between markets and politics, the latter defined to include the deployment of collective force. Professor Scott's theme is the mutual dependence of markets and politics in post-emancipation Louisiana and Cuba. Professor Scott examines post-emancipation Louisiana and Cuba, which are similar in some respects and different in others. Sugar production was important in both locations, for example, but the politics of freedom differed: In Louisiana freedom resulted from the North's defeat of the South in a civil war, whereas in Cuba it resulted from an independence struggle by Cubans, including slaves, against colonial domination. Few economists would disagree with many of the propositions that they would extract from her narrative. Yet the tension between narrative and proposition is apparent. This Review explores some aspects of that tension. Part I describes in largely economic terms some aspects of the post-emancipation property arrangements that Professor Scott describes historically. Relying on Professor Scott's descriptions in Part II, I sketch why her insistence on the mutual dependence of markets and politics is correct, with some speculation about why a division of labor among economists leads many economics influenced legal scholars to underemphasize that dependence. It would be foolish to claim, and I do not, that only a historian could illuminate the mutual dependence of markets and politics. Rather, the historian's narratives and the economist's propositions shed light on that phenomenon from different angles.

Recommended Citation

Mark Tushnet, Property, Contracts, and Politics, 105 Mich. L. Rev. 1223 (2007).
Available at: https://repository.law.umich.edu/mlr/vol105/iss6/13