An Essay Collection on Work, Capitalism and Democracy Since the New Deal

Work, Capitalism, and Democracy: The United States Since the New Deal, edited by Elizabeth Tandy Shermer, has just been published by the University of Pennsylvania Press:

Changes to the meaning and nature of work, capitalism, and democracy during and after the New Deal have been contested from the mid-twentieth century to the present day. Rather than rehashing the familiar, tidy story of a Democratic coalition coming together in the 1930s only to be felled by conservative movements in the 1970s, this volume instead emphasizes that the prosperity many white American families enjoyed did not stop the fights over whose work would be recognized, how corporations would be regulated, and whose democratic rights would be protected, both on and off the job. Cultural representations of the ideal worker, legal battles over workplace rights, political standoffs over inflation policies, dire warnings against too much regulation, and abuses of the tax code indicate there never really was a consensus on how democratic the country, its economic system, and its workplaces would be.

As the collected essays suggest, backlash does not seem the right word to describe the challenges left-leaning politicians, environmental activists, and immigrants faced in the late twentieth century, when managing supply chains became far more lucrative than manufacturing the goods being shipped around the world. Using the broad categories of work, capitalism, and democracy to reinterrogate the past, contributors contend, is the only way to understand today’s conflicts over the future of how Americans will work, how capitalism will function, and how the country will be governed.

Essays of interest to legal historians include Jean-Christian Vanel, “‘The Nine Judges Have Gone Home’: Liberals, the 1949 “Closed Shop Cases,” and the Undermining of Union Democracy; and Reuel Schiller, “‘The Magnanimity of Disorder’: Counterculture Intellectuals and the Rise of Anti-Statist Thought in Late Twentieth-Century America.” 

--Dan Ernst 

Chowdhury to Lecture on the British Constitution, Capitalism and Constitutional Change

Tanzil Chowdhury, Queen Mary University of London, will lecture on The British Constitution, capitalism and constitutional change at ANU Law School on March 4 2026 from 1:00pm - 2:00pm:

This talk is from Associate Professor Chowdhury's current book project that examines the transformation of the British Constitution over the last century. His argument is that we cannot understand significant changes to the British constitution without understanding the broader historical developments in capitalist social relations and the significant social antagonisms that have occurred throughout the last 100 or so years. Capitalism is a totality of different social relations and processes oriented around the value form; different social relations (economic, but also political, legal, cultural, moral etc) which are all important to the reproduction of that social totality. 

Contrary to heteronomous theories of constitutional change (including some Marxist ones), this project seeks to understand constitutions (the different institutional combinations of state and social power, subject formations, forms of mediation and characterisations of legality) as having an internal relation with capitalist social relations. In that sense, constitutions cannot be abstracted from capitalist social relations and are in fact, as he will argue, historically specific to capitalism. 

However, even though constitutions are internally related to capitalist social relations, that does not mean that capitalist societies are not fraught with all manner of tensions, contradictions and ruptures. This is not therefore a rigid economistic and deterministic theory of constitutional development, but one which takes seriously the historical distinctness of the legal form, constitutionalism, and the specific work they do (or not) in the reproduction of capitalist social relations. 

Constitutionalism, as he will argue, operates at different levels within the contradictory totality of capitalist social relations. Changes to the British constitution are the results of specific forms of struggle over the reproduction of capitalist social relations. In this paper, he will set out some examples of this theoretical approach and focus on how I will periodise the last century of the British constitution which connect to distinct forms of what I will call historical forms of capitalist constitutionalism.

--Dan Ernst 

Boyd's "Freedom Enterprise"

Kendra D. Boyd, Rutgers University, has published Freedom Enterprise: Black Entrepreneurship and Racial Capitalism in Detroit (University of Pennsylvania Press):

The Great Migration saw more than six million African Americans leave the US South between 1910 and 1970. Though the experiences of migrant laborers are well-known, countless African Americans also left the South to pursue entrepreneurial opportunities and viewed business as key to Black liberation. Detroit’s status as a mecca for Black entrepreneurship illuminates this overlooked aspect of the Great Migration story. In Freedom Enterprise, Kendra D. Boyd uses “migrant entrepreneurship” as a lens through which to understand the entwined histories of Black-owned business, racial capitalism, and urban space.

Freedom Enterprise follows Black Southerners’ journeys to Detroit during the initial wave of migration in the 1910s and 1920s, through their efforts to build a prosperous Black business community in the 1930s and 1940s, to the destruction of that community through urban renewal projects and freeway construction in the 1950s and 1960s. Combining business and social history methods to analyze an eclectic archive, Boyd chronicles migrant entrepreneurs’ experiences, highlighting tales of racial and economic violence, Black women’s business organizing, illegal business, communist entrepreneurs, and cooperative economics.

Boyd uses the framework of racial capitalism to examine migrant entrepreneurs’ experiences in twentieth-century America. In the Jim Crow South, African Americans worried about white mobs taking away their property, wealth, and lives. Though they sought refuge in Detroit, migrant entrepreneurs subsequently faced the loss of their livelihoods and the businesses they had spent decades building to the bulldozers of state-sponsored urban redevelopment initiatives. Southern migrants’ “freedom enterprise”—their undertaking of attaining freedom through business—was curtailed by the reality of operating within the confines of US racial capitalism.

In tracing Black entrepreneurs across the Great Migration, Freedom Enterprise provides important insights into African Americans’ activism for racial and economic justice and continued racialized wealth disparities.

--Dan Ernst 

ASLH Jane Burbank Global Legal History Prize to Balakrishnan

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Jane Burbank Global Legal History Prize. About the prize: 

The Jane Burbank Article Prize in global legal history will be awarded annually to the best article in regional, global, imperial, comparative, or transnational legal history published in the previous calendar year. Submissions may address any topic or period, and may focus on case studies in which the analysis relates to broader processes or comparisons. 

This year's award went to Sarah Balakrishnan (Duke University) for “Prison of the Womb: Gender, Incarceration, and Capitalism on the Gold Coast of West Africa, c. 1500–1957,” Comparative Studies in Society and History 65:2 (2023): 296-320. The citation:

This stunningly original article challenges several dominant tendencies in the global history of prisons, particularly a persistent focus on male incarceration and an emphasis on penal practices of the colonial state. Through careful analysis of a wide range of sources, including testimony of female prisoners, Balakrishnan tells a radically new story. It centers on the incarceration of women in so-called native prisons in nineteenth-century colonial Gold Coast (southern Ghana). The phrase “prison of the womb” describes a startling pattern: captive women were threatened with impregnation in efforts to urge dept repayment and tort settlement by kin groups. Palm oil merchants targeted women and utilized the punishment to enforce collection of payments on loans and amass capital. The committee was deeply impressed by the originality of the article, its deft combination and close interpretation of varied sources, and its broader significance for the regional and global history of carceral politics and practices.

The prize committee awarded an honorable mention to Max Mishler (University of Toronto) for “‘Improper and Almost Rebellious Conduct’ Enslaved People’s Legal Politics and Abolition in the British Empire,” American Historical Review, 128:2 (2023): 648–684.

Congratulations to Professor Balakrishnan and Professor Mishler!

-- Karen Tani

Legal History at AALS

I'm afraid I didn't attend the Legal History sessions at the Annual Meeting of the Association of American Law Schools earlier this month, but here, from the program, are two sessions sponsored by the Legal History Section (in the latter case, jointly with other sections).

Legal History of Capitalism.  The legal history of capitalism has entered a new phase, following the rise of the new history of capitalism. Its focus on the evolution of the law creating, governing, and enabling the institutions of a market economy, indeed, including its very existence, has energized a new generation of legal historians. This session will attend to the work of young scholars, voices that have uncovered heretofore unseen aspects of the history of capitalism. Legal history is by its nature interdisciplinary, it discusses the sophisticated work of legal historians outside of the legal academy, the better to build intellectual and institutional bridges.

Session Speakers: Kevin R. Organization: Michigan State University College of Law; Gregory A. Mark, DePaul University College of Law (Moderator); Nadav Orian Peer, University of Colorado Law School; Sarah Winsberg, Brooklyn Law School.

The Uses and Misuses of History: The Roberts Court and Its Constitutional Revolution.  The Roberts Court has embarked on a constitutional revolution using history to legitimate its authority. Sometimes the Courts conservative majority employs originalism, sometimes it invokes tradition, and sometimes it ignores originalism and tradition altogether. Critics charge that many of the Court's decisions are undermining democracy and civil rights, while supporters argue that the Court is restoring the Framers' Constitution. This program will discuss how lawyers, scholars, and judges use and misuse history. Our starting points will be Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation (2024) and Jonathan Gienapp’s Against Constitutional Originalism: A Historical Critique (2024).

 --Dan Ernst

Parisot on Capitalism and the US Constitution

James Parisot an affiliate faculty member in Sociology at Drexel University, has published Capitalism and the Creation of the U.S. Constitution open access in Studies in American Political Development 37:2 (October 2023):

This article engages with scholars working on the history of capitalism and with scholars of American political development to form a historical materialist perspective on the creation of the American federal government. First, it returns to the debate about the state in capitalist society to develop an approach for theorizing the relations between class, capitalism, and states. Next, it addresses the position of American capitalism in the 1780s, arguing that it was still in a long transition phase. After this, it reinterprets the Constitutional Convention of 1787 in the context of the long and uneven history of American capitalist development. I argue that the U.S. Constitution created the foundations of a state that would serve capitalist interests, including capitalist slave owners, but, at the same time, provided some space for social relations of production not yet fully subordinated to the power of capitalism to coexist.

--Dan Ernst

Legal Historians on "The Disability Frame"

Last February, we noted that several legal historians would be participating in a University of Pennsylvania Law Review symposium on "The Disability Frame." The published volume is now available online at the Law Review's website. Contributions of interest for readers of this blog include:

Nate Holdren (Drake University), Capitalism Disables: The Case of Workers' Compensation Laws. Abstract:

This article presents an account of disability as social and thus variable, connected to an account of capitalism as an inherently disabling type of society, such that different capitalist societies may disable in different ways, but all of them will disable. The article then takes the early history of workers’ compensation laws in the United States as a case study for the theoretical account of disability and capitalism, arguing that those laws created new incentives for discrimination against disabled people and thus re-organized the process of disabling. The article concludes with brief speculation about what these points imply for the prospects of achieving justice for disabled people through law.

Karen Tani (University of Pennsylvania), Disability Benefits as Poverty Law: Revisiting the "Disabled State". Abstract:

This essay, a contribution to "The Disability Frame" symposium, uses the history of a famous and influential disability benefits case to revisit political scientist Deborah Stone’s argument in THE DISABLED STATE (1984). Observing that “[m]edical certification” of disability had “become one of the major paths to public aid in the modern welfare state,” Stone wondered whether policymakers were asking the “concept of disability” to do too much and whether they were sufficiently alert to the concept’s tendency to expand over time.

Filed in 1983 and decided by the Supreme Court in 1990, Sullivan v. Zebley is an example of those expansionary pressures and their significant results. When the Social Security Administration stopped making Supplemental Security Income payments to 5-year-old Brian Zebley, despite his continuing and severe disabilities, lawyers at the legal aid organization Community Legal Services filed a class action. Operating from a foundational belief that the welfare state should be more robust, Zebley's lawyers contended that not only had the Social Security Administration erred in Zebley’s case, but also that the Agency’s overall eligibility determination process for child disability benefit claimants was too restrictive. The plaintiffs’ ultimate victory before the Supreme Court, and the surprising allies it amassed along the way, illustrate how readily many actors and institutions connected disability to deservingness and embraced disability as a distributional device in the late twentieth century. The post-Zebley backlash against child claimants, however, illustrates how closely the public continued to associate disability with deviance and fraud, especially when they observed take-up among Black citizens. Negative perceptions contributed to the program’s reform in 1996. Congress preserved the new path to eligibility that Zebley created, but also narrowed it. Decisional power, meanwhile, remained in the hands of medical gatekeepers.

This essay casts the Zebley story as one of triumph and tragedy. It was a triumph for poverty lawyers and their clients, who, under hostile circumstances, pressed for a more generous and life-affirming social welfare system. They saw that the boundaries of disability were malleable and they pushed on them. But it remains a tragedy that the best route to subsistence for so many children has further entangled disability with medicalization, suspicion, and surveillance. 

Also of interest: Britney Wilson (New York Law School), Making Me Ill: Environmental Racism and Justice as Disability. Although not a historian, Wilson drew on historical research to explore the intersection of disability, race, civil rights, and environmental justice: Abstract:

Civil rights legal scholars and practitioners have lamented the constraints of the largely intent-based legal framework required to challenge racial discrimination and injustice. As a result, they have sought alternative methods that seemingly require less overt proof of discrimination and are more equipped to address structural harm. One of these proposed solutions involves the use of the Americans with Disabilities Act (ADA)—due to its affirmative mandate to address discrimination by reasonable modification or accommodation—and the framing of issues of racial injustice in terms of disability or the deprivation of medical rights. Environmental justice, an area in which issues of both race and disability are salient and affect one another, is one such context in which advocates have tried to use the ADA to challenge broader structural harm. This Article analyzes cases in which practitioners have used the ADA to challenge issues of environmental injustice to examine the purported utility of the ADA, and disability and medicalization framing, more generally, in addressing structural racism and injustice. Specifically, I discuss the attempted use of the ADA to stop the construction of a petrochemical plant in “Cancer Alley,” Louisiana and to challenge mold on behalf of public housing residents in New York City.

The use of the ADA to challenge environmental injustice has clear legal and social justice narrative benefits that explain its appeal, including the required inclusion of people with disabilities in environmental justice campaigns that disproportionately impact them, but from which they are often left out—except for as examples of the negative consequences of harm. However, the promise of these legal theories has not been adequately tested to proffer the ADA as a true alternative to race-based civil rights laws, and there are many suggestions that it is not. Furthermore, the use of disability as both narrative harm and legal strategy in environmental justice campaigns raises important considerations for racism and ableism as interrelated institutional harms. Therefore, any attempt to expand the disability frame in this direction requires an understanding of racism that does not exclude or otherwise undervalue ableism and vice versa. Otherwise, we risk perpetuating the same problems.

The symposium event featured many other scholars. Rabia Belt's remarks may be of particular interest to readers of this blog. A YouTube recording of her panel is available here.

-- Karen Tani

CFP: Doing Business in the Public Interest

[We have the following CFP for the next annual meeting of the Business History Conference.  DRE]

Doing Business in the Public Interest: Annual Meeting of the Business History Conference.  
Providence, Rhode Island.  March 14-16, 2024.  Proposals due November 1, 2023

The Nobel Prize-winning economist Milton Friedman famously stated that “There is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits.” Yet the historical record is full of businesses acting consciously or unconsciously in a public interest.  

A public interest might include everything from labor practices, product safety, and environmental impact, to choosing sides on contentious social issues or weighing ties to questionable political regimes, to obligations in times of war or natural disasters. Some businesses consciously attempt to marry the embrace of a public interest with the profit motive, or feign a public interest to evade regulation. Others gamble that a short-term sacrifice in the name of public interest will result in long-term gain, while others sincerely believe that a business can do well by doing good. This calculus is further complicated by the fact that there is no single public interest either within or beyond the corporation.

Informed by the idea of doing business in the public interest, the BHC Program Committee invites sessions and papers that consider the relationship between businesses and public interest from a variety of different perspectives. We are especially interested in submissions that address diverse geographic locales and time periods; that analyze the different ways that business interactions with a public interest are shaped by questions of race, class, and gender; that investigate how entrepreneurs, firms, and communities have attempted to define and/or shape the public interest for their own benefit; that address the role of governments, politics, and power in affirming or denying the relationship between businesses and a public interest; that examine corporate practices within the context of corporate social responsibility, stakeholder theory, or a purpose-driven business model; that explore businesses that claim to set aside the public interest completely; and any number of similar subjects. The organizers also welcome proposals with innovative formats that promote discussion on the broader question of doing business in the public interest.

Proposals and Submissions.  While we encourage submissions to take up these themes, papers addressing all other topics will receive equal consideration by the program committee in accordance with BHC policy. Graduate students and emerging scholars in the field are particularly encouraged to attend. Graduate students and recent PhDs whose papers are accepted for the meeting may apply for funds to partially defray their travel costs; information will be sent out once the program has been set.

Proposals may be submitted for individual papers or entire sessions. Each presentation proposal should include a one-page (300 words) abstract and one-page curriculum vitae (CV) for each participant. Individual paper submissions will be combined into new sessions defined by themes chosen at the Program Committee’s discretion.

All session proposals should have a cover letter containing a title, a one-paragraph session description, and the names and affiliations of all presenters (to a maximum of four) and a recruited chair, as well as the contact information for the session organizer.

To submit a proposal, go [here.]

The deadline for receipt of all paper and session proposals is November 1, 2023. Notification of acceptance will be given by December 15, 2023. Information on registration and fees for participation and the provisional program will be announced at the beginning of February 2024. Everyone appearing on the program must register for the meeting.

The Antislavery Moment: Capitalism, Democracy, and Abolition

Abolitionist Coins (NYPL)

 [We have the following announcement. DRE.]

The Antislavery Moment: Capitalism, Democracy, and Abolition in the Nineteenth-Century Atlantic Princeton University

This conference will feature prominent scholars who work on abolition, anti-slavery politics, capitalism, and slavery, and will attempt to revisit the classic questions about the relationship between the marketplace and abolition in light of the new historiographical trends.

This conference is organized by Professor Matthew Karp, Professor Peter Wrizbicki and the Center for Collaboration History at Princeton University.

Friday, October 7
1:30 – 3:15 p.m.

    Introductory Remarks; Peter Wirzbicki, Princeton University

    Keynote “Conversation”
        James Oakes, The Graduate Center, CUNY
        Manisha Sinha, University of Connecticut
        Amy Dru Stanley, University of Chicago
        Moderator: Sean Wilentz, Princeton University

3:30 – 5:15 p.m. | Panel 1 | The Antislavery Struggle
    Chris Bonner, University of Maryland | “Moses Grandy’s Pursuits of Freedom”
    Sean Griffin, Manhattan College | “Antislavery Struggle, Labor Struggle: Recovering Lost Connections and Missed Opportunities in the Labor-Abolitionist Coalition”
    Kate Masur, Northwestern University | “Poor Laws and Black Codes: Problems of Race, Class, and Mobility in the 19th Century United States”
    Comment: Matthew Karp, Princeton University

Saturday, October 8
9 – 10:45 a.m. | Panel 2 | Antislavery & Democracy
    Sarah Gronningsater, University of Pennsylvania | “Gradual Abolition in Practice: Law, Experience, and the Local Archive”
    Ariel Ron, Southern Methodist University | “The Republicans’ Grassroots Leviathan”
    Alex Gourevitch, Brown University | “Servitude and Self-Emancipation After Slavery”
    Comment: Anton Jäger, KU Leuven

11 a.m. – 12:15 p.m. | Panel 3 | Antislavery & Capitalism
    Yesenia Barragan, Rutgers University | “Free Womb Captives and Slavery’s Capitalism in Nineteenth-Century Colombia and Spanish South America”
    John Clegg, Harvard University | “The Real Wages of Whiteness: Fear of Slave Competition in the Abolitionist Imagination”
    Comment: Wendy Warren, Princeton University

1:15 – 2:30 p.m. | Panel 4 | Antislavery & Violence
    Kellie Carter Jackson, Wellesley College | “Forcing Freedom: Black Abolitionists and the Politics of Violence”
    Isadora Moura Mota, Princeton University | “Radicalizing Atlantic Antislavery: Insurgent Abolitionism in Nineteenth-Century Brazil”
    Comment: Corinna Zeltsman, Princeton University

2:45 – 4 p.m. | Panel 5 | Antislavery & Revolution
    Lenora Warren, Cornell University | “Insurrection and the Oceanic Imaginary”
    Angela Zimmerman, George Washington University | “Conjure and Colonization: Fighting the Empire of ‘Lincoln and them other big emancipator men’”
    Comment: Reena Goldthree, Princeton University

4 – 5 p.m. | Closing Remarks & Conversation
Moderated by Matthew Karp and Peter Wirzbicki

Enchantment and the History of Capitalism

[We have the following announcement.  DRE.]

Please join us for our (for now) final roundtable in the ‘Enchantment in the History of Capitalism’ series on May 5, 16:30 BST. We will be welcoming Professor Jean Comaroff, Professor Jens Beckert, and Professor Robert Kozinets for a session on enchantment in contemporary scholarship on economic life.

This is the third of a series of reading-group style workshops, intended to reflect on the meaning of enchantment and its uses in existing scholarship across different disciplines, with a longer-term view to redirect the concept and shed new light on the history of capitalism.

Please register here.  More information on our roundtables is available on the network website, We hope to see many of you there!

Anat Rosenberg and Astrid Van den Bossche
Harry Radzyner Law School
Reichman University

Enchantment in the History of Capitalism

 [We have the following announcement.  DRE]

We are a network of scholars who seek to develop enchantment as an organizing theme in historical studies of capitalism. We hope to provide a platform for those interested in the historical role of enchantment as a tool, structure, or foundation for the organization and the development of modern markets, economic institutions, and economic relationships.

The first meeting of the network will take place on February 24, at 14:30 GMT on Zoom. It will be led by two expert speakers on magic and religion, Professor Owen Davies and Professor Jason Ananda Josephson Storm.

This is the first of a series of reading-group style workshops, intended to reflect on the meaning of enchantment and its uses in existing scholarship across different disciplines, with a longer-term view to redirect the concept and shed new light on the history of capitalism.

More information on the first and future meetings, assigned pre-readings, as well as registration to the meeting and to the mailing list, are available on the network website.

Anat Rosenberg and Astrid Van den Bossche

Holdren’s First Post -- My book and my plans for future posts

I want to thank the editors of the Legal History Blog for having me as a guest blogger. It’s an honor and I’m delighted to have my words on here. As Professor Tani mentioned in her introduction, I recently published a book and I want to tell you about it.

My book is called Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era. It's my first book and is based on my dissertation. I think of the book as a study in the intellectual life of governance - how power relationships are conceptualized, mostly by powerful people, and what concepts are implied within power relationships, whether or not anyone actually thought them explicitly. In my view, inquiry is enriched by emphasis on both of these facets, the actual thoughts of people and the implicit logics enacted within institutional practices. I’m aware that this all sounds pretty abstract. In addition to talking about abstract matters, I also tried to foreground the real human beings who died, suffered, and lived despite all the harms to which working-class people are subjected. In my view, that dying and suffering was (and still is) largely organized by the kinds of abstractions I talk about in the book.

A Symposium on "Law's Intellectual History"

64: 1, a symposium issue of the Buffalo Law Review entitled Opportunities for Law's Intellectual History, is now available.  Here’s the TOC:

Introduction: Opportunities for Law's Intellectual History
Mark Fenster and John Henry Schlegel

A Bridge Between: Law and the New Intellectual Histories of Capitalism
Ajay K. Mehrotra

Capitalism and Risk: Concepts, Consequences, and Ideologies
Edward A. Purcell Jr.

Organic Poise: Capitalism as Law
Christopher Tomlins

Causation, Legal History, and Legal Doctrine
Charles Barzun

Mr. Peabody's Improbable Legal Intellectual History
Mark Fenster

Writing the Social History of Legal Doctrine
Cynthia Nicoletti

On Absences as Material for Intellectual Historical Study
John Henry Schlegel

Humbug: Toward a Legal History
Susanna Blumenthal

Textiles: Popular Culture and the Law
Laura F. Edwards

Some Final Observations on Legal Intellectual History
Robert W. Gordon

Cromwell Article Prize to Maggor

Via the American Society for Legal History, we have the official citation for the Cromwell Article Prize, which was awarded to Noam Maggor (Queen Mary, University of London):

The William Nelson Cromwell Foundation offers an annual prize of $5,000 for the best article in American legal history published by an early career scholar.  Articles published in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize. 2018 recipient: Noam Maggor, “To Coddle and Caress These Great Capitalists: Eastern Money, Frontier Populism, and the Politics of Market-Making in the American West,” American Historical Review 122 (February 2017): 55-84. Committee citation: In our deliberations, committee members were struck by the originality and ambition of Maggor’s argument.  Maggor recovers an overlooked history of state constitution-making in the Gilded Age, connecting late nineteenth-century legal and political development in the American West to the transformation of the United States into a modern industrial nation, the expansion of finance capitalism, and the integration of multiple peripheries into the world economy.  While many scholars have viewed the consolidation of a national market after the Civil War as inevitable, interpreting the growth of American government as a reaction to a largely apolitical process of industrialization, Maggor casts American political development as “fully constitutive of economic change.”  Exploring contingent and contested deliberations over water rights, labor protections, and the power of the state to regulate corporations, Maggor reveals how market integration fanned ongoing struggles over the distribution of material resources, the transparency and legibility of local markets to outside investors, and the geography of the marketplace (whether the Western states would serve the larger economy primarily as a source of raw materials or could become economic centers in their own right). Maggor’s richly textured story describes how financiers from major East Coast cities went west after the Civil War in search of investment opportunities, transforming the economies and landscapes of the frontier.  As money flowed from New York and Boston to Colorado, the Dakotas, Idaho, Montana, and Wyoming, western settlers in the 1870s and 1880s lobbied for statehood, splintering power away from the federal government even as a national market was emerging.  Unlike the top-down institution-building that marked developing economies elsewhere in the world, the drafting of state constitutions in the American West brought together settlers of vastly different social and economic standing, from farmers and miners to lawyers and small businessmen, who would attempt to establish democratic controls over the market.  Rejecting federal-style constitutions that laid out basic principles and left policy details to the legislature, western delegates engaged in robust debate about whether to “prioritize actual settlers over investors, . . . democratic processes over financial imperatives and relative regional autonomy over the prerogatives of a national market.”  Maggor paints a fascinating portrait of the legal consciousness of the delegates, whose dynamic experiences as migrants and settlers led them to privilege pragmatism over formalism and conditions on the ground over abstract ideas.  Delegates proposed innovative water rights regimes, corporate regulatory schemes, and labor protections that departed from established practice back east and worked around anti-regulatory Supreme Court precedent.  And when corporate representatives warned that the proposals would inhibit outside investment, the delegates compromised in ways that varied from state to state.  Maggor labels the resulting constitutional patchwork “a complex new geography” that was “not a clear triumph for any particular interest,” but instead “bore the mark of the divides and disagreements that had surfaced during the writing process.” The committee was very impressed with how Maggor brings together major issues in legal, political, and economic history, connecting a series of scholarly literatures in, as one committee member said, “a startling and excellent way.”  Maggor’s account of multiple state constitutional conventions is deeply researched, and his keen eye for detail captures lives and experiences in ways that show how individual agency can matter even in stories of structural transformation.  With elegant writing and an engaging narrative style, Maggor makes a big and original contribution to multiple fields and will spark important new conversations in the legal history of economic development, regulation, and populist constitutionalism.  We all believe that Maggor’s article is a true achievement that deserves recognition by the Cromwell Foundation.

The members of this year's Cromwell article prize subcommittee were: H. Tomas Gomez-Arostegui (Lewis and Clark) and Erika Pani (Colegio de México).

Congratulations to Professor Maggor!

Conference: Money as a Democratic Medium

[We’ve previously posted an announcement of this conference, but we’re reposting with a link to an updated schedule.]

Money as a Democratic Medium.  December 14-15, 2018.  Harvard Law School.  Sponsored by Harvard Program on the Study of Capitalism, Institute for Global Law and Policy,  The Murphy Institute - Tulane University, the Harvard Law Forum, and Harvard Law School

 “Those who create and issue money and credit direct the policies of government and hold in the hollow of their hands the destiny of the people.”  The words, attributed to a 20th century British banker, capture an emerging consensus.  Money, governance, and public welfare are intimately connected in the modern world.  More particularly, the way political communities make money and allocate credit is an essential element of governance.  It critically shapes economic processes – channeling liquidity, fueling productivity, and influencing distribution.  At the same time, those decisions about money and credit define key political structures, locating in particular hands the authority to mobilize resources, determining access to funds, and delegating power and privileges to private actors and organizations.

Recognizing money and credit as public projects exposes issues of democratic purpose and possibility.  In a novel focus, this conference makes those issues central.  Scholars, policy makers, and students have often assumed that money and credit emerge from private exchange and entrepreneurial activity.  Recent work, by contrast, emphasizes that modern currencies depend on collective orchestration.  That approach resets the frame.  

First, examining money as a public project opens monetary institutions to our view.  Comparative and historical work suggests that societies have experimented constantly with different monetary structures and methods of allocating credit.  Everyday experience reiterates that lesson.  The Financial Crisis, the European Monetary Union, recurring sovereign debt crises among emerging countries – all have catalyzed intense debates over institutional reform.  Expanding our vision enables us to identify and explore more effectively the complex engineering that produces modern money and credit.  Given the broader view, we can better evaluate the way our monetary orders have changed and the capacities at stake when they do.  We can see causal connections previously obscured, including the relationships between governmental structures and market processes.  Likewise, we can ask new questions about the way disciplinary premises, such as the private genesis of money and credit or the classical dichotomy between real and nominal value, have shaped substantive inquiry.  Looking forward, we can consider institutional alternatives, the political and normative premises that shape them, and their impact on shaping the modern political economy.

Second, the new approach directs attention to a different register of claims and responsibilities.  If money is a public resource, if public obligation and enforcement anchor demand for the medium, if the government in essential ways supports the payments system – then we face profound legal and political obligations to evaluate the design of the monetary and financial system and the dynamics it produces, including how money circulates, whether participants in a monetary community have equal access to the medium, and how the current structures engender growth, mobility and opportunity, or dearth and exclusion.  Today’s challenge is to revise the monetary architecture we have inherited so that it operates to reinforce democratic aspirations rather than undermine them.

The goal of the conference is to bring individuals working in different areas with diverse methods into a common conversation.  Their projects are likely to inform each other and may suggest unanticipated synergies at the academic and policy-making level.  For example, one trend in recent work reinterprets the monetary system as a public utility.  That insight throws the regulatory regime crafted for banks and analogous institutions into a new light, suggesting that we have miscategorized those entities.  Another strand in scholarship and policy-making focuses on the long-standing failure by commercial banks to reach low-income individuals.  That work explores the motives that drive bankers’ decisions and considers efforts to re-align those incentives.  The projects on infrastructure and “banking the unbanked” each revise scholarly approaches to banks as intermediaries and innovate ways to expand access to credit. 

Similar potential synergies abound elsewhere.  Thus scholars from a variety of methodological angles are exploring the way societies anchor money’s value.  Their work considers the critical role played by public demand, including the determination by political authorities to take a particular unit in payment for taxes and other communal obligations.  That theoretic claim informs full employment/job guarantee programs, proposals for “complementary currencies” that could circulate as a more flexible local money within monetary unions, and models of sustainable credit that advocate loans tailored to increasing taxpaying capacity.  As the scholarship in these areas proliferates, its authors should vet their approaches to public demand against each other, looking for the differences and shared aspects that could stimulate new insights and stronger work.

The Conference is organized to invite sustained exchange among participants over the course of the two-day conference.  It is open to all students of money, the monetary system, and the modern economy, including the public.   Please register (no charge) [here.]  Schedule [here.]

Legal Research at the Hagley Museum & Library

In my most recent post, I highlighted some of my research on the American fair trade movement and antitrust reform, and showed how it relied on the Hagley Museum and Library's vast archival holdings. I spent a lot of time in the U.S. Chamber of Commerce records, but there are countless other resources available there. Here I’ll highlight some of the collections that may be of particular interest to readers and note a few books that used those sources.

Originally endowed by the du Pont family, the archive and museum sit on 235 acres along the Brandywine River, just minutes from downtown Wilmington, DE. The grounds are spectacular. Researchers are housed in restored cottages that formerly housed foremen who managed the original gunpowder mills. The change in elevation along the Brandywine made this location perfect for a canal to be installed with a series of locks that powered mills. At the top of the steep hill sits the du Pont family home. The “soda house” has been transformed to house the archival collections. The reading rooms at the archive and the main library look out onto forests.

Hagley’s specialty is business and technology, but there’s a lot for legal historians to explore as well. From their website: “The collections include individuals' papers and companies' records ranging from eighteenth-century merchants to modern telecommunications and illustrate the impact of the business system on society.” Also, Hagley continues to build its digital collections, so keep an eye out for new materials on the web.

For graduate students and researchers at any stage, check out the Hagley grants and fellowships page.

Some highlights:

Of course there's the DuPont Legal Dept. Records (Acc. 1729). Professor Catherine Fisk used these records along with the archival records from Rand McNally and Eastman Kodak in her award-winning book, Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930.

National Association of Manufacturers (Acc. 1411), which Professor Jennifer Delton mined for her book, Racial Integration in Corporate America, 1940-1990.

Seagram Company Ltd., the Canadian distiller, (Acc. 2126 and 2173) holds internal documents on brand development and marketing campaigns. I used these materials for my research on manufacturer price protection plans. Letters between company executives, detectives, and "cut-rate" retailers detailed the exchanges leading to Old Dearborn Distributors v. Seagrams (US, 1936). In that case the Court upheld state fair trade laws, enforcing resale price maintenance contracts.

Enron Board Minutes (Acc. 2487) . . . the only full set in existence, according the Hagley archivist Lucas Clawson.

Raymond Loewy collection (Acc. 2251), includes information on trademarks and trademarking.

Interested in telecomm?  Check out the holdings from MCI Telecommunications, which includes their Legal Department records and various law suit records (Acc. 2275). 

There are two different collections concerning the 1969 IBM antitrust suit: Richard Thomas de Lamarter collection of IBM antitrust suit records (Acc. 1980) and the Computer& Communications Industry Association IBM antitrust trial records (Acc. 1912). 

There are two collections of Singer Manufacturing Co. records that contain info on patents and trademarks: Acc. 2207 and Acc.2641.

And, then there's the online catalog for researchers to find material specific to their on-going projects.

Special thanks to Lucas Clawson, Archivist & Hagley Historian, and Dr. Roger Horowitz, Director of Hagley's Center for the History of Business, Technology, and Society.