Weekend Roundup

• Rosa Goluboff and G. Edward White reflect on the enduring legacy of the Declaration of Independence (Virginia Law). 

• William Novak reflects on Polan Fellowship and the Future of Democracy (Michigan Law).  

• Legal historian Jennifer Mnookin is now president of Columbia University (NYT). 

•  For Most of Its History, the Supreme Court Didn’t Pretend to Be Apolitical: a preview of Rachel Shelden's forthcoming The Political Supreme Court: A Forgotten History (TPM).

• The Max Planck Institute for Legal History and Legal Theory is expanding its collaboration with India through the launch of the Centre for Legal History of India, in cooperation with the National Law School of India University in Bangalore and the NALSAR University of Law in Hyderabad. 

• 
  
  The July newsletter of the Historical Society of the District of Columbia Circuit is here.  It includes a report of the Society's recent panel on U.S. v. Lewis “Scooter” Libby.

• A new exhibit at the Law Library of Congress: The US Code at 100.

• From the Touro Law Review: a podcast episode featuring David S. Reynolds, interviewed by Rodger Citron, on Reynolds's recent book The Two Ships That Shaped America: The Mayflower, the White Lion, and the History of the Nation.  

• ICYMI: Sarah Trott on the five time the U.S. Constitution has come under threat (Conversation).   Anna Snyder asks, Why do historians complicate things? (Contingent).   Guénaël Mettraux on the history of war crimes (Articles of War).  The history of fireworks in Ohio (CNO). An interview with Jill Lepore on the Constitution (Jacobin).  Herbert Hovenkamp on the history of the rule of reason in antitrust law.  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Hayes on Antitrust Reform in Postwar Japan

Gregory Hayes, a 2025 graduate of Northwestern Law, has published The Failings of Post-War Japanese Antitrust Reforms, in the Northwestern Journal of International Law and Business:

This paper discusses the antitrust reform measures taken during the occupation of Japan following the end of World War I. These antitrust reforms included the dissolution of the zaibatsu business groups and the adoption of the Antimonopoly Act. However, the trust-busting and antitrust measures taken by Japan failed to prevent the eventual rise of keiretsu business groups and lower the concentration of corporate ownership in Japan. The primary reasons behind this failure were the inability of the reformers to fully dismantle the zaibatsu business groups and the changing priorities of the reformers due to the growing threat of the spread of communism in Asia. Despite the shortcomings of the Japanese antitrust reforms, the existence of the keiretsu business groups within Japan did not prevent Japan from successfully democratizing, experiencing significant economic growth, or reducing income inequality.

--Dan Ernst 

Classroom Materials on the Supreme Court, 1874-1921

[We have the following announcement from the Supreme Court Historical Society.  DRE]

Rights, Commerce, and Reform: A New Era of Supreme Court History Classroom Resources

Discover Supreme Court History from 1874-1921 with a new era of resources from Beyond the Bench, our civics education website. The new era, Rights, Commerce, and Reform, includes over 20 new case summaries, resources, and life stories from the Waite, Fuller, and White Courts ready for classroom use.

Featured resources include:

• Justice Oliver Wendell Holmes: The Boston native, Civil War soldier, and Associate Justice whose legal theories revolutionized modern understanding of the law; 

• Belva Lockwood: The educator, activist, and attorney who became both the first woman to argue before the Supreme Court and to run for President of the United States;  

• Civil Rights Cases (1883): The Supreme Court decision that held the Civil Rights Act of 1875 to be unconstitutional and paved the way for Plessy v. Ferguson (1896) and Jim Crow segregation; 

• Muller v. Oregon (1908): The Supreme Court decision that upheld a gender-based state labor law and created a clear legal distinction between men and women in the workplace;  

• Standard Oil Co. v. United States (1911): The Supreme Court decision that established the “rule of reason” in antitrust law and demonstrated the government’s power to regulate monopolies and increase competition; and  

• The Judiciary Act of 1891: The law that created the United States Courts of Appeals and helped shape the modern Judiciary.

Phillips-Sawyer on the Labor Exemption and Extraterritoriality in Antitrust

Laura Phillips-Sawyer, University of Georgia School of Law, has posted two papers.  The first is  Restructuring American Antitrust Law: Institutionalist Economics and the Antitrust Labor Immunity, 1890-1940s, which appeared last year in the University of Chicago Law Review:

Thurman W. Arnold (LC)

 Labor unions and their leaders were cast as the perennial antitrust defendants for the first fifty years of federal antitrust law, and this historic imbalance fostered a movement in economic scholarship and labor activism to restructure American antitrust law. The progressive liberal-institutionalist movement in economics played an important role in legitimizing trade unions by recasting them, not as anticompetitive cartels, but rather as a necessary corollary to the growing market power of industrial firms. Louis Brandeis, the litigator and future jurist, drew from institutionalists’ work to support antitrust reform. He argued that antitrust law was not necessarily anathema to the interest of labor organizations, and he advocated for both the application of the rule of reason to labor association activities and the revision of antitrust laws to exempt certain labor activities. The Clayton Act of 1914 created such an antitrust labor exemption, but as soon as union activity spilled over into interstate commerce the Supreme Court insisted on antitrust liability and applied it categorically against laborers. Even after the passage of additional labor exemptions in the 1930s, the reigning Commerce Clause doctrine rendered labor’s immunity from antitrust liability uncertain. This lingering uncertainty was exacerbated by a fracturing within the progressive liberal movement as some economic institutionalists, schooled in the legal realist tradition, revived the Department of Justice’s antitrust prosecutions in the late 1930s. Assistant Attorney General Thurman Arnold led this renewed antitrust agenda; armed with a more expansive interpretation of federal commerce power, he targeted labor groups in several headline-grabbing cases, enraging his former allies on the Left. Arnold, however, seemed to represent a divergent institutionalism that embraced both the Brandeisian distaste for economic concentration and the Keynesian macroeconomic policies of mass consumption. Ultimately, in 1941, an uneasy settlement was reached in United States v. Hutcheson, where the Supreme Court authorized a non-statutory labor exemption for secondary boycotts. The ruling helped establish guardrails for lawful labor union activities; however, it did not resolve this division on the progressive Left, and laborers continued to seek protective legislation and statutory immunities. Recasting antitrust law’s bias against laborers as historically contingent demonstrates the moments of possibility to reconcile this historic imbalance, and it implicitly argues that the progressive law and economics movement provided necessary groundwork but also required interest group organization and statutory interventions.

The second is Jurisdiction Beyond Our Borders: United States v. Alcoa and the Extraterritorial Reach of American Antitrust, 1909-1945:

In 1945 Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: It narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional intent as protecting an egalitarian business environment; and it established the extraterritorial reach of US antitrust laws. Although each of those contributions has incited legal commentary and critique, Hand’s decision to redraw the territorial application of US antitrust has remained largely unexamined. This essay offers a historical explanation for the origins of antitrust extraterritoriality and advances two arguments: First, before and during the interwar years, the antitrust doctrine of strict territoriality had been eroded through a series of distinguishing cases and contradictory congressional policies. Second, the well-documented connection between European fascism and cartelization provided strong external pressures to extend American antitrust law and policy abroad and to redouble anticartel and antimonopoly provisions at home. Thus, both internal and external pressures culminated in the Alcoa case, which signaled a new era in American antitrust law—renewing both anticartel and anti-monopolization policy while at the same time linking market competition to the protection of American territorial and popular sovereignty. By 1945 extraterritorial antitrust emerged as an acceptable means of governance to curtail international cartel behavior, discipline monopolies at home, and impose an American-led liberal—and hegemonic—internationalism on its trade partners.

--Dan Ernst

Weekend Roundup

• Dylan C. Penningroth (UC Berkeley) recommends "Seven Essential Texts That Show the Human Side of Black Legal History" (Literary Hub).   
  

• Earlier this week, Judge Amul R. Thapar of the Sixth Circuit delivered "Why Originalist Courts Need Originalist Classrooms,” the 17th Joseph Story Distinguished Lecture of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.  Judge Thapar faults the "overwhelmingly anti-originalist" legal academe for teaching "widely accepted originalist methods through a distorted, uncharitable, and often inaccurate lens.  This means that most students never engage with originalism in a serious way during their law school careers, much less learn how to do originalism in practice.”  He proposes solutions.

• Cynthia Neville, Professor Emeritus at Dalhousie University, Halifax, Nova Scotia, will give the Annual Lecture of the Stair Society in the Mackenzie Building, Old Assembly Close, Edinburgh on Saturday 16 November 2024.  Her title is “March Law as Auld Law in the Late Medieval and Early Modern Scottish Legal Traditions.”
  

• Jonathan Gienapp (Stanford) asks Why is the Supreme Court Obsessed with Originalism?
  

• Along similar lines, James Kloppenberg (Harvard) explains to readers of Commonweal "Why History Matters Now" (subtitle: "A Commonweal Catholic on the mess made by Supreme Court Catholics").  
  

• A notice of that Penn conference on the political and legal history of voting (Daily Pennsylvanian).
  

• We spotted a notice for a three-year postdoc at Radboud University in the Netherlands on the project "The Social Life of Early Medieval Normative Texts," headed by Dr Sven Meeder, who "aims to describe and contextualise the spread of social norms as articulated in specific combinations of canons in a bottom-up approach starting from the vast corpus of manuscript witnesses of canonical collections in every shape and form (4th-12th centuries)" (I Am EXPAT).
  

• The Center for International and Comparative Law at the University of Michigan will hold a Junior Scholars Conference on April 25-26, 2025, in Ann Arbor, MI.  The deadline for submitting abstracts is January 5, 2025. The Center seeks submissions from pre-tenure track faculty, as well as Ph.D. and S.J.D. candidates, in law and related fields. 

• From History News Network: Richard R. John (Columbia University) on "The Other Sherman’s March: How the younger brother of the famous general set out to destroy the scourge of monopoly power." 
  

• Rebecca Brenner Graham’s essay, Frances Perkins: Breaking Glass Ceilings in the Cabinet, has recently been posted to the website of the White House Historical Association.
  

• "Justice O'Connor's Papers Show She Would Have Dissented in Chevron" -- so writes Tracy Thomas (University of Akron) over at the Gender and the Law blog.
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.  

Book Event: Antimonopoly and American Democracy

[We have word of the following book event.  DRE]

Antimonopoly and American Democracy, April 22, 2024, 1:30 PM to 03:00 PM.  The Forum at Columbia University, Room 315 (Third Floor), 601 West 125th Street, New York, NY 10027

At this roundtable hosted by the Columbia Center for Political Economy and The Tobin Project, Bill Novak (University of Michigan Law School), an editor and contributor to the book, will join fellow contributors Richard John (Columbia Journalism School), Kate Andrias (Columbia Law School), and Tim Wu (Columbia Law School), to discuss how antimonopoly has figured importantly in the history of American democracy, and what lessons this history may hold for the challenges of market power, economic concentration, and democracy that we confront today. Center Co-Director Suresh Naidu (Columbia University) will moderate the discussion.

[The discussion] will address the deep links between concentrated economic power and durability of meaningful self-governance in American history; the wide range of places where monopoly power was seen as a threat, and the similarly wide range of tools and techniques that people across the society wielded to push back against these perceived threats, especially the ways tools of politics beyond antitrust law have been wielded in democratic politics.

This event is free and open to the public. It will not be livestreamed but is to be recorded and released publicly later.  Register here.

Nachbar on Politically Dynamic Competition

Thomas Nachbar, University of Virginia School of Law, has posted Politically Dynamic Competition:

James Landis (LC)

There is a live debate going on over whether antitrust should take a broader view of the economics of market concentration. When antitrust reformers like Lina Khan (Chair of the Federal Trade Commission) argue for a return to “Brandeisian” approaches to antitrust, they offer arguments sounding in the economics of dynamic competition (in opposition to the currently dominant approach to antitrust: the consumer welfare standard frequently attributed to Robert Bork). But their real argument is not about the economics of efficiency; it’s about the relative roles of government and business in the structuring of competition.

This tension has been at the root of trade regulation since the inception of nationalized trade regulation during the British mercantile order. Couching political disputes such as these in the rhetoric of technical expertise is not new; it was a major part of the movement (James Landis’s “administrative process”) underlying the creation of the larger administrative state of which Federal Trade Commission is only a part. But the FTC has never fit comfortably in the technocratic approach to administrative regulation, and recent proposals by antitrust regulators only highlight why.

When understood in political rather than technical terms, the current battle over the politics of both innovation and competition highlights the inherently political role of politically insulated agencies like the FTC. Although ostensibly appealing to the technical application of economic concepts like the choice between static and dynamic competition, the FTC’s arguments for increased deference to determine what types of conduct constitute “unfair methods of competition” have implications that go far beyond the ambit of economics. Claims by antitrust enforcers that they should have stronger antitrust law to enforce (and more power to interpret antitrust law) should be viewed not through the lens of economics but instead through the lens of the political and constitutional order. That much was clear in 1624, when the Statute of Monopolies was adopted, and 1914, when the Federal Trade Commission Act was; it should be equally so today.

Political claims are hardly new to antitrust, although relative stability in antitrust scholarship since the late 1970s has misled many to think those political questions had been resolved. Antitrust has been dominated over the last forty-five years by seemingly technical, neoclassical microeconomics, but the privileged placement of such concerns has been the product of a separate, political commitment: the consumer welfare standard. The consumer welfare standard is best seen not as a statement about economics but about antitrust’s role in the political, regulatory order. The current attack on the consumer welfare standard is clearly political; its defense needs to be political as well.

--Dan Ernst

Antimonopoly and American Democracy

New from Oxford University Press: Antimonopoly and American Democracy, edited by Daniel A. Crane and William J. Novak, both of the University of Michigan Law School.  TOC is here.

Americans today worry about concentrated power in private industry to an extent not seen in generations Not only do they find diminished diversity of service-providers and producers, but they are disquieted by the power of a few large companies to shape and constrain democratic processes. Americans across the political spectrum, from former President Donald Trump to Massachusetts Senator Elizabeth Warren, have sounded alarms about the overlarge power of business in both public and private life. While many of the technologies and industries that worry Americans are new, the concerns they've raised are not unprecedented.

Antimonopoly and American Democracy traces the history of antimonopoly politics in the United States, arguing that organized action against concentrated economic power comprises an important American democratic tradition. While prevailing narratives tend to treat monopoly as a risk to people mainly in their roles as consumers--by causing prices to increase, for example--this study broadens the conversation, recounting ways in which monopolism can hurt ordinary people without directly impacting their wallets. From the pre-revolutionary era to the age of Big Tech, the volume explores the effects that historical monopolies have had on democracy by using their wealth and influence to dominate electoral politics and regulation. Chapters also highlight a range of sites of economic concentration, from land ownership to media reach, and attempts at combating them, from labor organizing to constitutional revision. Featuring original scholarship from some of the world's leading experts in American economic, political, and legal history, Antimonopoly and American Democracy offers important lessons for our contemporary political moment, in which fears of concentrated wealth and influence are again on the rise.

--Dan Ernst

Werner on the Tobacco Trust

George F. K. Werner, a student at Duke Law School, has posted his note in the Duke Law Journal, Norm Commandeering and the Tobacco Trust: 

(NYPL)

In the early 1870s, Durham became a major center of tobacco marketing. Farmers brought their crops to auction warehouses, which then sold them to the town’s manufacturers. This was a process facilitated by a well-developed system of social norms. But the formation of the American Tobacco Company’s “tobacco trust” in the 1890s threatened that arrangement—buyers conspired to pay less per pound of tobacco, and warehousemen lost the ability to police buyers’ conduct. When farmers attempted to organize in response, geographic and social distance caused their efforts to fail. By the time federal courts dissolved the trust in 1911, the damage had already been done. This Note’s historical analysis will be relevant for scholars of both informal ordering and competition law. For the former, it shows that some norm systems depend on the presence of competition. Informal ordering can, of course, also be a response to a lack of competition. But the possibility of collective action problems means that attempts to organize in reaction will often fail. For scholars of competition law, the possibility of norm commandeering provides a concrete example of how concentrated market power can affect economic and social dynamics.

--Dan Ernst

Weekend Roundup

• 
  Kate Masur, Northwestern University, discussed on Professor Masur's Until Justice Be Done on Crooked Media's Strict Scrutiny podcast.
  

• Long ago, we wrote a seminar paper on the coroner in England and New Hampshire, so our pulse quickened when we learned that the Australasian Legal Information Institute has brought online the Australian Coronial Law Library “The free access Library on AustLII provides an expansive perspective on the coronial function over at least the past twenty years.”  More.  DRE.
  

• Last month, the Historical Society of the District of Columbia Circuit held a reenactment of the argument in United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001), “the first federal major appellate court opinion to address application of traditional ‘old economy’ antitrust rules to the new, dynamic and fast-paced technology markets of the late 20th Century.”  Two of the judges who presided at the original argument also presided over the reenactment.  A recording of the event is now available.
  

• Berkeley Law's announces its new faculty members, including the legal historian José Argueta Funes.
  

• New from the American Journal of Legal History and Oxford Academic: Our Practice Has a Superiority:’ Debt Enforcement, Bills of Exchange, and Credit in Eighteenth-Century Glasgow, by Hunter Harris, Postdoctoral Research Fellow, Nuffield College, University of Oxford.
  

• The Lawbook Exchange’s new catalogue of Scholarly Law & Legal History is here.
  

•  ICYMI: Henrietta Lacks’s family reaches settlement in extracted cell lawsuit (WaPo).  Behind the scenes at the American Historical Review (AHA).  The Brennan Center for Justice on the history of Supreme Court appointments.  The New York Times reviews the exhibit "Black Americans, Civil Rights and the Roosevelts," which opened earlier this summer at the FDR Library and Museum.    Joseph Patrick Kelly on Ku Klux Klan Acts (The Conversation).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Carstensen on the Chicago Board of Trade Case

Peter Carstensen, University of Wisconsin Law School, has recently posted a classic study, which previously circulated as a working paper, of a landmark of antitrust history, The Content of the Hollow Core of Antitrust: The Chicago Board of Trade Case and the Meaning of the "Rule of Reason" in Restraint of Trade Analysis:

Louis D. Brandeis (NYPL)

Antitrust law's rule of reason for determining the validity of contracts in restraint of trade is enigmatic at best. A primary source of its contemporary Delphic character is the common understanding of the Chicago Board of Trade decision, one of the few cases in which the Supreme Court has upheld a restraint as reasonable. Using several potential meanings for the rule of reason, this study examines the factual context of the case, the record made by the parties, their legal and factual arguments to the Supreme Court, and the contemporaneous state of the law. The objective is to determine what rule of. reason was being employed in the case. The factual evidence established that the most likely explanation for the restraint was that it was to facilitate and protect from opportunistic exploitation the efforts of the members of the Board who were collectively creating a more efficient market system for certain classes of grain. Moreover, the legal arguments of the parties show that the characterization of the function of the restraint was a crucial issue in the case. Finally, a defense of reasonableness based on the ancillarity of a restraint to some other primary transaction or activity among the parties is entirely consistent with the then existing case law. In combination, these considerations show that the rule of reason employed in the case was not the open-ended balancing test commonly supposed, but a focused inquiry into the function of the restraint and its relationship to the joint productive activities of the parties. Therefore, when read in context of the record, argument and relevant case law, the Board of Trade decision does not provide a basis for making the rule of reason the unstructured hollow core of antitrust law. 

--Dan Ernst

Argument in US v. Microsoft to be Reenacted

[We have the following announcement.  DRE.]

The Historical Society of the District of Columbia Circuit presents the second program in its series of Judge Patricia M. Wald Programs on Life and Law in the Courts of the D.C. Circuit, United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).

This program will reenact a portion of the argument in the Microsoft case, specifically whether the integration of Internet Explorer into the Windows operating system constituted anticompetitive conduct and whether a Section 2 violation can be established solely by proving anticompetitive conduct. Judges Ginsburg and Tatel, members of the en banc panel in 2001, will hear the reenacted arguments. A panel of experts will then discuss the Microsoft decision and its continuing impact on antitrust enforcement in today’s important and controversial technology markets.

Setting the Stage:
Douglas Melamed, Scholar in Residence at Stanford

Reenactment:
Douglas H. Ginsburg, Judge, U.S. Court of Appeals for the D.C. Circuit
David S. Tatel, Judge, U.S. Court of Appeals for the D.C. Circuit

Kristen C. Limarzi, Gibson Dunn & Crutcher LLP
David I. Gelfand, Cleary Gottlieb Steen & Hamilton LLP

Panel Discussion:
Moderator: William Baer, Visiting Fellow, Brookings Institution
Panelists: Professor Melamed, Maureen K. Ohlhausen, Partner, Baker Botts LLP, David C. Frederick, Partner, Kellogg, Hansen, Todd, Figel & Frederick, PLLC will join Judges Ginsburg and Tatel.

Wednesday, June 7, 2023, 4:30 p.m. – 6:00 p.m., Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.  Admission is free. Reservations are suggested, here.  A reception in the Courthouse Atrium with light refreshments will follow the program.

Andrias on Labor's Antimonopoly Vision

Kate Andrias, Columbia Law School, has posted Beyond the Labor Exemption: Labor's Antimonopoly Vision and the Fight for Greater Democracy, which is forthcoming in Antimonopoly and American Democracy, edited by Daniel A. Crane and William J. Novak (Oxford University Press):

Although the labor movement and the antimonopoly movement both oppose concentrated economic power and bemoan rising inequality, their projects are frequently viewed as divergent, if not incompatible. After all, courts have long used antitrust law against workers’ collective activity, and antimonopoly advocates have tended to deemphasize problems of class, focusing on breaking up business in ways that do not necessarily provide workers more power. This Essay shows, however, that the industrial unions of the early and mid-twentieth century saw themselves as antimonopoly advocates. They sought not only to free workers’ collective activity from antitrust law’s sanction, but also to advance an affirmative antimonopoly agenda. Yet their agenda was different in important respects from that of prominent antimonopolists, including Louis Brandeis: Labor’s focus was not on making business smaller, but rather on building workers’ countervailing power and increasing democratic control over the workplace and the economy, through a range of strategies including industrial organizing; changes to antitrust, tax, and banking policy; new forms of national economic planning; and public control of key industries. By examining labor’s antimonopoly vision beyond the struggle for a labor exemption, this Essay draws a more complicated picture of the American antimonopoly tradition—one that challenges the dominant narrative about the relationship between labor and antitrust and enriches our understanding of what the Progressive and New Deal-era antimonopoly vision entailed. It also suggests that, to unite the interests of workers, consumers, and citizens, the primary focus of a reform agenda going forward ought not be the size or even the market power of the firms in question, although those are certainly important factors, but rather the degree to which firms’ autonomy and power are democratically constrained either by the public or by the firms’ workers—in short, a program for greater democracy.

--Dan Ernst

Federal History 14

Federal History 14 (2022), the journal of the Society for History in the Federal Government, has been published.  Here’s the TOC:

Editor’s Note
        — Benjamin Guterman

Roger R. Trask Lecture
        — Arnita Jones

Articles

A Clash of Principles: The First Federal Debate over Slavery and Race, 1790
        — Paul J. Polgar

From Conspiracy to Policy: James V. Martin, the “Air Trust” Narrative, and the 1926 Air Commerce Act
        — Sean Seyer

“Substantive Accomplishments”: Richard Nixon, High School Student Environmentalists, and the President’s Environmental Merit Awards Program
        — Neil Buffett

The Contribution of U.S. Military Advisors in the Dominican Republic to Operation Unified Response, Haiti Earthquake Relief, 2010
        — Bradley Lynn Coleman

Interview

An Interview with Kelly J. Shannon
        — Alexander Poster

Roundtable

From Selma to Moscow: How Human Rights Activists Transformed U.S. Foreign Policy by Sarah B. Snyder
        – Introduction by Paul Adler
        – Review by Theresa Keeley
        – Review by Robert Rakove
        – Review by Matthew K. Shannon
        - Response by Sarah B. Snyder

   Recent Publications

        Human Rights–A Select List

Weekend Roundup

• 
  A recording of Jerome Frank: The Making of a New Deal Lawyer, the 2022 Maurice and Muriel Fulton Lecture I delivered at the University of Chicago Law School last month, is now available.  DRE 
  

• "On Agriculture & Antitrust: A Brief Summary of Legislative History," an illustrated white paper by  Jonathan Coppess, Department of Agricultural and Consumer Economics, University of Illinois, is here.
  

• New online in the AJLH and on Oxford Academic: Millionaires Against Billionaires: The Rise and Fall of the Private Plaintiff Antitrust Lawyer, 1946–1976, by Peter Labuza.
  

• In December 1980, Richard A. Posner and George J. Stigler advised Ronald Reagan’s transition team how the new president could “throttle back on antitrust enforcement.” Read it here.
  

• "How Japanese Americans Fought for—and Won—Redress for WWII Incarceration," by Mitchell T. Maki (History).
  

• Where to begin on the historians' engagement with Justice Alito's draft opinon in Hobbs?  In the NYT with The Fight Over Abortion History and/or its ten-book reading list? With Treva B. Lindsey’s Abortion has been debated in the U.S. since 18th century U.S. Supreme Court Justice Alito's abortion history lesson in dispute (Reuters)? Bernadette Meyler on LAW360 podcast? In the Atlantic, where Mary Ziegler writes that "The Conservatives Aren’t Just Ending Roe—They’re Delighting in It"? We also took note of Kelly O'Donnell and Lauren MacIvor Thompson's response at History Watch: "It Doesn’t Have to Be the End for US Abortion Rights."

• Also in the Atlantic: Susan J. Pearson (Northwestern University) on "Why Nonbinary Birth Certificates Aren’t All That Radical."
  

• Update: An appreciation of former ASLH President Stanley N. Katz!
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Progressive Era Antitrust: A Seminar at USC Law

 

We've received this virtual poster for what looks to be an very important and interesting seminar at USC Gould Law on November 10.  To participate via Zoom, RSVP to AOpsRSVP@law.usc.edu.

--Dan Ernst

Fisk and Salter on the Law of Playwrights and Theatre Producers

Catherine Fisk, University of California, Berkeley School of Law, and Brent Salter, Stanford Law School, have posted Assumptions about Antitrust and Freelance Work and the Fragility of Labor Relations in the American Theatre, which is forthcoming in the Ohio State Law Journal:

Lee Shubert (NYPL)

As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience with freelance work. Yet the Dramatists Guild and commercial theatre producers have negotiated collectively for nearly a century under a cloud of legal uncertainty at the intersection of antitrust law and labor law that dates to the pre-New Deal era. The revival of theatre after the catastrophe of the pandemic provides an opportunity to reconsider the four longstanding but unnecessary assumptions about antitrust, labor law, and copyright law that have shaped organizational structures and mediated relations between stage producers and writers:

Assumption #1: Playwrights, unlike actors or directors, cannot unionize under the National Labor Relations Act because playwrights are independent contractors.

Assumption #2: Playwrights must have the legal status of independent contractors under federal labor law, lest they lose control of the copyrights in their work under the work for hire provisions of the 1976 Copyright Act.

Assumption #3: Unionization of playwrights is not merely unprotected by the National Labor Relations Act (see Assumption #1), but it is affirmatively prohibited by federal antitrust law.

Assumption #4: The precarious legal status of playwrights as outlined in Assumptions 1-3 is necessary to protect their creative autonomy. Whatever economic security and stability writers could attain if the Dramatists Guild were a union and if there were real collective bargaining would be at the cost of dramatists’ creative freedom, independence, and ability to prevent the rewriting of their work. In short, to be a real artist, a dramatist necessarily must run the risk of being impecunious.

This article offers a detailed history, based on previously unavailable archival sources, of the origin of these assumptions, and how writers, producers, and various intermediaries struggled to create a functional system in the face of legal doubt. The history shows why it is time to abandon the assumptions about the significance of antitrust and copyright law in structuring relations between writers and producers.

--Dan Ernst

Hoffman on Competition Law and Canadian Identity

C.P. Hoffman, FreeState Justice, has posted “The Mother of Combines”: Representations of the United States in Early Canadian Discourse on the Combines Problem and the Formation of Canadian National Identity, which is forthcoming in the Canadian Journal of Law & Society:

Nathaniel Clarke Wallace (wiki)

In late 1887, Canada was swept up in a fervor over the impact and scope of so-called “combines”, a blanket term used to cover price-fixing schemes, pool agreements, trusts, and other cartel and monopoly arrangements. The public debate that ensued ultimately led to the passage in 1889 of the Anti-Combines Act, the world’s first modern competition statute, enacted a year prior to the United States’ more famous Sherman Antitrust Act. But while in this case Canada acted before its neighbor to the south, the United States remained omnipresent in public and parliamentary debates on the combines problem. Canadian discourse referred to the United States in at least four ways during the combines debates: as a benchmark against which the Canadian economy and the combines problem should be judged; as a model for potential legal action, as a potential economic liberator through the power of free trade; and as the very source and propagator or the combines problem. Canadians thus alternately presented the United States as savior or devil, as paragon or antithesis. The result was a paradox of a sort: Canadians borrowed American ideas in order to avoid becoming American.

–Dan Ernst

Wu's New Deal Supplement to "Curse of Bigness"

Timothy Wu, Columbia Law School, has posted material on antitrust policy in the mid-twentieth-century United States cut from The Curse of Bigness: Antitrust in the New Gilded Age and entitled The Curse of Bigness: New Deal Supplement.  It's a synthesis following the conventional periodization of New Deal competition policy, with a substantial discussion of Alcoa.  he writes, "It is meant to be read together with the larger volume, but can also be read separately."

--Dan Ernst

Avi-Yonah on Antitrust and the Corporate Taxation, 1909-1928

Reuven S. Avi-Yonah, University of Michigan Law School, has posted Antitrust and the Corporate Tax, 1909–1928:

Lincoln Steffens (NYPL)

Between the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914, the question of what to do about “trusts” dominated American political life. Before 1889, the dominant form of amalgamating competing businesses was the trust, because corporations could not hold shares in other corporations, and instead the shareholders would exchange their shares for trust certificates. But in 1889 New Jersey (the “traitor state”, according to muckraking journalist Lincoln Steffens) changed its corporate law to allow for holding company structures, setting of a great wave of amalgamations in areas like oil, tobacco, sugar and steel.

This paper will focus on one attempt to address the “trust problem” by means other than the Sherman Act (which faced some resistance in the courts, as the government lost the E.C. Knight case in the Supreme Court in 1895 and barely won the Northern Securities case in 1905). This was the corporate tax act of 1909, which as will be seen below, was primarily intended as an antitrust measure. However, after the enactment of the Clayton Act and the creation of the FTC in 1914, the corporate tax was less needed as an antitrust measure, and between 1919 and 1928 its antitrust features were largely eliminated.

–Dan Ernst