Jill Fraley Publishes Article in the Santa Clara Law Review The article examines how some private law doctrines can serve structural constitutional functions.

By Law Communications
July 2, 2026

Washington and Lee law professor Jill Fraley has published an article in the Santa Clara Law Review. The article, titled “Constitutional Structures in Private Law and the Example of Waste Law,” examines how some private law doctrines can serve structural constitutional functions. After first establishing a framework for identifying such structures, Fraley explores the common law doctrine of waste law as a foundational mechanism of constitutional private law.

“[G]iven 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,” writes Fraley.

The full article is available online in the W&L Law Scholarly Commons.

Fraley’s recent research focuses on the intersection of environmental and constitutional law, particularly as those issues relate to environmental justice across race and class. She has written about takings, race, and environmental destruction in the U.S. territories, and she has examined the politicization of the Supreme Court, an issue that is critical for the interpretation of the major environmental statutes such as the Clean Water and Clean Air Acts.

Fraley’s work on the evolution of waste law won the American Association of Law Schools’ Scholarly Paper Award in 2016. Her research on English and Irish property law has won the Arthur Cox Visiting Research Fellowship at Trinity College Dublin, as well as a Fulbright Scholar Award for Ireland. Fraley received her second Fulbright Scholar award in 2019-2020, during which she conducted research on the development of international manufacturing trade by expat Americans living in Turkey in the first part of the Twentieth Century.

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