|Willard Hurst (U. Wisc. Law Library)|
Property, once conceived in patrimonial and static terms, came to be seen as a dynamic asset to be exploited, leading to pro-productive rules favoring prior appropriation of water and fugitive minerals such as oil and natural gas, the refusal to recognise easements for light and air, and the abandonment of traditional restraints in the law of waste.Orth goes on to doubt the utility of the phrase:
I will venture to say that I find the ‘release of energy’ to be an unhelpful trope in legal history. As the American story makes plain, energy can be released by repealing statutes or by adopting them. It can be released by legislatures or by courts. It can be released by changing the law or by leaving it unchanged. To the extent that it means ‘the power to make contracts freely’, it may be no more than a polite expression for laissez-faire. To the extent that it means ‘placing the nation’s natural wealth at the people’s disposal’, it may be simply a euphemism for Gilded Age corporate giveaways.