Abstract

This Article proposes three criteria for when a private law mechanism performs a structural constitutional function: when it constrains present authority in the name of future stability, when it disperses enforcement to avoid centralized authority, and when it has structural entrenchment to avoid ordinary displacement. While many private law doctrines contain constitutional resonances or echo rights, the core of constitutional law is the power structure—a precondition for the protection of those rights. Constitutional structures have three key components: self-binding through time, separation and diffusion of power, and entrenchment beyond ordinary politics. For a private law doctrine to do more than resonate with constitutional norms, to indeed play a role as a constitutional structure, it should reflect those three key traits. Those traits create the necessary and sufficient framework for identifying a structure of constitutional private law.

Having established a framework for identifying such structures, this Article then examines the common law doctrine of waste as a foundational mechanism of constitutional private law. Traditionally cast as a minor relic of feudal regimes, waste is a private constitutional technology: it mediates the obligations of property across time and functions as a form of decentralized constitutional governance—constraining present authority, allocating responsibility for enforcement, and resisting ordinary displacement mechanisms.

Finally, given waste’s role as a private constitutional structure, this Article argues that judges should resist the growing pressure to subsume waste into either tort or contract law. Courts increasingly apply waste law between parties who have a contractual relationship (such as mortgagor and mortgagee), generating questions about the validity of waivers. Tort law creeps into waste analysis because waste’s taxonomy draws explicitly on tort-like categories of fault and responsibility. Yet historically waste has resisted most of the pressures of tort and contract. By identifying how waste functions as a private constitutional structure, this Article both suggests an explanation for waste’s resistance to change and argues that judges should take care to guard those structures in the face of present forces. Waste does more than monitor future interests. Waste encodes a constitutional sensibility about democratic time: that owners are not merely entitled holders of present power but stewards within a system designed to endure.

Recommended Citation

Fraley, Jill M., CONSTITUTIONAL STRUCTURES IN PRIVATE LAW AND THE EXAMPLE OF WASTE LAW, 66 Santa Clara L. Rev. 466 (2026).
Available at: https://digitalcommons.law.scu.edu/lawreview/vol66/iss3/2