Commons on Migrants and the Common Law in Early Modern Engalnd

Kathleen Commons has published, open access, Discovering ‘Immigration Control’ in England, c. 1540 – c. 1640 in The Historical Journal:

Migration history is a growing field – yet the legal status of migrants in early modern England has not yet been investigated in detail. Reconstructing the legal system that governed migrants in early modern England does not just add significant depth and nuance to histories of migration and migrants, but also provides fresh insight into the status of English subjects. Furthermore, it enables historians to trace longer histories of the exclusion of migrants from rights in England and Britain. This article reconstructs the common law governance of migrants between c. 1540 and c. 1640, showing how common law principles and practices excluded migrants from the rights-bearing status of English subjects. Rather than being governed by the law, migrants were substantively governed under prerogative, a form of governance repeatedly resisted by English subjects. Although some migrants could access (unstable) liberties granted under prerogative, for the most part migrants were also subject to discriminatory local bylaws and licences and commissions granted by the crown for their exploitation. The repeated ‘molestation’ of migrants by informers for working contrary to statute, and petitions against this harassment from migrants suggest this early modern system of immigration control was relatively well understood by both subjects and migrants.

--Dan Ernst 

Ewing and Moretta on the Cold War and the UK Right to Strike

K.D. Ewing and Andrew Moretta have published Labour Law, the Cold War, and the Right to Strike: A Legal and Political History of Order 1305 (Hart/Bloomsbury):

Surprisingly, the prohibition on the right to strike was retained by the Attlee administration after the Second World War, and was transformed to become a weapon of government during the Cold War to deal with what were wrongly claimed by ministers to be Communist-inspired strikes engineered for subversive purposes.

In a deep analysis of Order 1305, the authors provide a reassessment of the role of the State in industrial relations. Challenging much contemporary learning in labour law, the book is informed by a very detailed engagement with Cabinet and ministerial papers, which highlight the contradictions on the part of government in simultaneously promoting and containing trade union power. These sources also highlight the extent to which trade unions both relied on and were co-opted by the State.

The main focus of the book, however, is the role of Order 1305 in the control of trade union activists, with the continuing presence of the criminal law and allegations of communist inspired strikes ensuring an important role for MI5 and Special Branch in post-war industrial relations. Material unearthed at the National Archives demonstrates unequivocally not only that trade unions were deeply penetrated, but also that trade union activists were the subject of extensive surveillance, as the authors fully reveal.

–Dan Ernst.  TOC after the jump.

Solomine and Brodersen on Goesaert v. Cleary

Michael E. Solimine, University of Cincinnati College of Law, and Michelle Brodersen, a 2025 graduate of the University of Cincinnati College of Law, have published Bartender Rescue: Sex Discrimination, Nepotism, and the Legacy of Goesaert v. Cleary in the Penn State Law Review:

In 1948, the United States Supreme Court in Goesaert v. Cleary upheld the constitutionality of a Michigan statute which prohibited women from serving as bartenders. It was one of a series of decisions which employed highly deferential rational basis scrutiny to uphold laws that discriminated based on sex. Those decisions came to constitute an “anti-canon” of highly criticized cases, and they were eventually overruled in a series of decisions by the Burger Court, which adopted a more intensive judicial scrutiny for gender discrimination. The change was famously the result of concerted legal mobilization led by then-Professor Ruth Bader Ginsburg and other lawyers and activists.

There is extensive literature addressing and analyzing the legal and social trajectory of Goesaert. This Article contributes to this literature by focusing on two underappreciated aspects of Goesaert and its legacy. One factor is nepotism: the Michigan statute, and similar laws in other states, permitted spouses or daughters of male bar owners to serve as bartenders. This arguably made Goesaert at least a closer case, since the exception diluted the charge of sex discrimination. Nepotism in employment allowed some women to work in jobs otherwise reserved for men, and the practice has long had a fraught relationship with the promotion of gender equity in employment.

The other factor is the practical effect of Goesaert. By the mid-1970s, the Supreme Court was expressly repudiating the doctrinal analysis of that decision. But well before that, other legal and societal developments had undermined the holding of Goesaert and allowed women to serve as bartenders. This development came about prior to the rise of Goesaert to anti-canonical status through, among other things, the passage of Title VII of the 1964 Civil Rights Act, and state court cases relying on state antidiscrimination laws.

Thus, the legacy of Goesaert is a richer and more complicated one, and sheds light on a decision that demands greater attention than a rote citation to a now discarded precedent.

--Dan Ernst 

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 

Tycko's "Captured Consent"

Sonia Tycko, Lecturer in History in the School of History, Classics and Archaeology at the University of Edinburgh, has published Captured Consent: Contract Labor in English Charity, Colonization, and War, 1600–1700 (Cambridge University Press).  It appears in the series Studies in Legal History, sponsored by the American Society for Legal History:

Consent has been celebrated as a guarantor of liberty and self-determination; however, its history suggests a different meaning. In this book, Sonia Tycko reconstructs the coercive role of contracts in early modern English labor. The long-term, long-distance, and high-risk nature of pauper apprenticeships, transatlantic indentured servitude, military conscription, and prisoner of war labor drove some English people to develop consent into a tool of labor coercion. Coercion could constitute valid consent for people whose social position, age, and gender fit the profile of natural laborers. Many subordinates experienced consenting – or the presumption of their consent – as a form of acceptance of, or even submission to, their position. This book reveals that early modern labor was one of the fields in which ideas of freedom of contract, voluntariness, and enticement developed.

--Dan Ernst

CFP: The Refugee-Migrant Distinction: Toward a Global History

[We have the following CFP.  DRE.]

"The refugee-migrant distinction: toward a global history,” October 15-16, 2026, Darwin College, Cambridge, UK.  Organizers: Bastiaan Bouwman (Utrecht University, the Netherlands), Fabrice Langrognet (CNRS, France), Jeremy Adelman (University of Cambridge).  Funded by Princeton Institute for International and Regional Studies (Fung Global Network Fund) and Gates Cambridge Trust
  
The distinction between refugees and migrants is central to current law, policy, and public debate around asylum and migration. While the distinction between refugees and migrants is far from the only factor in shaping migration policies (Thiollet et al., 2024), states' prerogative of granting refugee status serves as an important albeit unreliable carve-out from a generally restrictive mobility regime. Opponents and proponents of permissive immigration rules each tend to emphasize the binary nature of the distinction - and its close corollary, "forced" versus "voluntary" migration - to their own ends. Restrictionists argue that most people crossing borders in search of asylum, especially in irregular ways, are not "deserving" refugees, but are actually unwelcome "economic migrants." Conversely, most refugee advocates, and especially the United Nations High Commissioner for Refugees (UNHCR) (Carling, 2023), insist that it is essential to defend the legally protected status and essential nature of "refugees" as distinct from "migrants." Scholars have shown, however, that the empirical difference between refugees and migrants is often tenuous (Lucassen, Lucassen and Manning, 2010), even in good-faith attempts to adjudicate it, whereas the fraught politics of migration ensures that attempts to police the distinction in practice are often deeply arbitrary and capricious. Yet insistence on this binary allows liberal states to legitimize their exclusionary bordering practices, relegating "mere" migrants to a realm of virtually unrestrained state discretion (Long, 2013; Hamlin, 2021). Meanwhile, sweeping policies ostensibly aimed at deterring only migrants also impede access to asylum, hurting "genuine" refugees as well (Costello, 2018; FitzGerald, 2019). Hence, some leading refugee advocates have wondered whether refugee scholars should "hold the line" separating refugees from (other) migrants (Aleinikoff, 2021).
 
A view of refugees and migrants as ontologically distinct has permeated much scholarship, including recent work on "refugee history," which has sought to redress forced migrants' previous erasure from much of the historical record (Langrognet, 2023; Marfleet, 2025). Yet historians have, like social scientists, paid increasing attention to the construction and contestation of the "refugee" label, denaturalizing it by analyzing its contingent, situated manifestations over time. Most scholars now understand that "in writing the history of refugees, they need to be alive to the process of constructing refugees and not simply to take 'refugee' as a pre-existing category" (Stone, 2018: 103). By attending to this process, historians have begun to show how the uneven implementation of political and legal categories - (im)migrant, refugee, displaced person, etc. - has been produced by and influenced a range of social and political factors, and the ability of people to challenge or evade these (Reinisch and Frank, 2014; Gabaccia, 2022; Huhn and Rass, 2025; Struillou, Zehni and Manneh, 2025; Gatrell, 2025). In this manner, refugee history has made visible the wider ideological tensions at stake, including nationalism versus cosmopolitanism, mobility versus immobility, and pluralism versus essentialism.

The aim of this conference is to more fully elucidate the relational nature of the distinction between refugees and migrants, its function in the wider field of migration, and its genealogy. Much of the scholarship on the refugee-migrant distinction has been carried out by social scientists and legal scholars (Zetter, 1991; Crawley and Skleparis, 2018; Erdal and Oeppen, 2018; Atak and Crépeau, 2021; Abdelaaty and Hamlin, 2022; Bialas et al., 2025), whose work is focused on the present. While engaging in conversation with the narratives and arguments they advance, the conference will take a more historical perspective, which will also better inform contemporary debate. While historians have in recent years gone beyond methodological nationalism to trace the evolution of the "international refugee regime" and other transnational dimensions of twentieth-century forced displacement (e.g. Bresselau von Bressensdorf, 2019; Jansen and Lässig, 2020; Taylor et al., 2021; Schönhagen, 2023; Bouwman, 2026), there is no agreement on how, why, and where the refugee-migrant distinction surfaced, circulated, and functioned, be it in the interwar era, the postwar and Cold War periods, or the "restrictive turn" of the 1980s. Whereas the historiographies of forced displacement and migration have too often remained separate, answering these questions promises to productively chart overlaps between these fields (Gatrell, 2019).

The conference also aims to expand our understanding of the refugee-migrant distinction's role beyond the West, given the Eurocentric origins of the 1951 Refugee Convention and the field of refugee law (Madokoro, 2016; Ballinger, 2025). Scholarship on flight and migration still centers heavily on Western countries that receive people on the move, especially their policies of admission or contributions to the international refugee regime's stated goal of achieving "durable solutions." This remains an important topic, especially since in the US and elsewhere, we are arguably witnessing the "end of asylum", with indiscriminate anti-immigration policies casting the distinction between refugees and migrants in doubt (Ngai, 2025). But more work is needed on other world regions, which always knew migration and forced displacement but only gradually, partly, and sometimes not at all became subject to the institutions and categories that rose in the West - and even when they were, not without contestation. Non-Western states and regions also generated their own conceptions of the relationship between refugees and migrants, moreover, calling the historiographical centrality of Western-centric institutions into question (Abdelaaty, 2021; Kapoor, 2022; Moretti, 2022; Reed and Schenck, 2023; Hamed-Troyansky, 2024; Moon, 2025).

The conference will bring together both established and early-career scholars. While historical in focus, interdisciplinary approaches and reflection are welcomed. A form of joint publication following the conference is envisioned, such as a special issue in a leading journal.
 
We welcome proposals on any aspect of the above, including from such standpoints as:

• Agency of refugees and migrants
• Advocacy for migrants' rights
• Labor/economic policy
• Socioeconomic rights, e.g. the right to work
• Differential functioning of the refugee-migrant distinction based on national origin, ethnicity, race, class, gender, sexual orientation, age, or religion
• Collaboration and competition in international governance, e.g. between UNHCR and IOM
• Externalization of border control
• Consequences for the refugee-migrant distinction of the recent erosion of the right of asylum (e.g. in the U.S. since 2020)
• Public attitudes toward refugees and migrants
• Knowledge production about (forced) migration and its governance

Proposals, including an abstract of ca. 300 words and a biographical note of ca. 100 words, should be sent by 16 February 2026 to fgnf.cambridge@gmail.com. Applicants will be notified in March 2026. Note that participants will be asked to submit papers for pre-circulation by the end of September 2026.
 
Early-career scholars are encouraged to apply. On a case-by-case basis, financial help can be provided to applicants upon request; please include such requests with your proposal, including explanation as to why support is required.
 
[Bibliography after the the jump.]

Kessler on the History of Viewpoint Discrimination

Jeremy Kessler, Columbia Law School, has posted The Short, Strange Career of Viewpoint Discrimination: From Teachers Unions to Social Media Platforms, which is forthcoming in Platform Regulation and Freedom of Expression in the US and Europe: Across the Great Divide, edited by Ronald J. Krotoszynski et al. (Oxford University Press):

In Moody v. NetChoice, the Supreme Court treated the norm against viewpoint discrimination as intuitive and timeless. Yet the majority opinion's portrayal of social media platforms as the victims of viewpoint discrimination relied entirely on post-1970 caselaw. That is because what this Chapter calls “viewpoint discourse” was an invention of the 1970s legal elite. That elite was responding to a distinctive social problem: the growing power of public-sector unions and politically progressive nonprofits. These groups represented particularly assertive factions of the “new” or “information” class: the ever-expanding population of workers who earn a wage by manipulating information, whether stored on hard drives or in the human mind. Though far from a monolith, this class tends: to undermine traditional values; to interfere with the profit-maximizing strategies of the “old” class (those who own the bulk of monetary capital); and to trouble democratically elected authority with ceaseless, censorious infighting. 

Between 1983, when the Supreme Court finally adopted the language of “viewpoint discrimination” and “viewpoint neutrality,” and 1995, a striking decisional pattern emerged. With one, partial exception, whenever the Court vindicated a claim of viewpoint discrimination, it did so to protect speech that coded as politically conservative or for-profit from politically progressive, information-class curation. By contrast, whenever the Court found an absence of viewpoint discrimination, it did so to reassert the authority of public administrators beset by contending information-class factions.

The rise of “the platform economy" scrambled the logic of viewpoint discourse. The platform economy refers to a situation in which a highly skilled faction of the information class rejoins the old class. This union between old- and new-class factions not only operates but owns a set of assets (“the modern public square”) that produces profit primarily by expropriating the value of the information class as a whole. The ideological, political economic, and doctrinal tensions created by this development were exemplified in Moody, as both the states of Florida and Texas and the Supreme Court tried to honor the norm against viewpoint discrimination. The states sought to do so by protecting politically conservative viewpoints from politically progressive curation. The Moody Court sought to do so by protecting for-profit speakers and the federal executive branch from state governments captured by information-class factions deemed – if only for a moment – to be both economically and politically unproductive. The fact that social media platforms are privately owned was not dispositive of this result. To the contrary, history suggests that the ideological and political economic imperatives of viewpoint discourse have tended to drive the Court's demarcation of the boundary between public and private curation. 

--Dan Ernst 

Oldham's "Law and Politics at the National Industrial Relations Court"

New from Hart/Bloomsbury: Law and Politics at the National Industrial Relations Court 1970-75: "Rather Peculiar Things," by Peter Oldhan, K.C.:

 Constitutional and employment lawyers, and indeed anyone interested in the history of the times, will not want to be without this deeply researched yet entertaining work.

When the Heath Government came to power in 1970, it set up the National Industrial Relations Court to referee highly contentious disputes between unions and employers. Regarded with hostility by the labour movement from the start, the Court and its President, Sir John Donaldson, faced mounting suspicion, and were regularly front-page news. When Donaldson jailed five dockers in 1972 – the Pentonville Five – for defying the Court's orders, strikes erupted and the docks closed. With the country's food supplies dwindling, a state of emergency loomed. How had it come to this? Could a way through be found?

This is a revelatory account of the National Industrial Relations Court's defining crisis, set in the context of a wider, and frequently startling, exposition of how Donaldson went about his role as its President.

Peter Oldham KC combines decades of experience as a barrister with archival research to shine a bright new light on how and why the Court found itself doing – in Donaldson's own words – "rather peculiar things."

--Dan Ernst.  TOC after the jump. 

The Docket 8:1-2

Volume 8, Issues 1-2 of The Docket, the companion to Law and History Review, is now online:

Sarah Gronningsater: The Rising Generation

A conversation with Sarah Gronningsater about her prize-winning book, The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom.

Marie-Amélie George: History as a Beacon of Hope

Simon Rabinovitch–Sovereignty and Religious Freedom: A Jewish History

A conversation with Simon Rabinovitch about his book, Sovereignty and Religious Freedom: A Jewish History.

Dennis Wieboldt III: Natural Law and the Study of “Conservative” Constitutionalism

Jonathan Connolly: Worthy of Freedom: Indenture and Free Labor in the Era of Emancipation

Lauren Davis Jarnach–Negotiating the Arizona Constitution: The Role of Parliamentary Procedure in Ensuring Democratic Textual Outcomes

--Dan Ernst 

Drake on Rerum Novarum

Janine Giordano Drake, Indiana University, has published What Rerum Novarum Did and Did Not Do for the American Labor Movement, 1891-1935 Revisiting Religion in the Struggle for Workplace Justice in the St. Louis University Law Journal:

Pope Leo XIII (LC)

The papal encyclical Rerum Novarum (1891), a statement which defended workers' human rights, has been celebrated by both leftwing and rightwing Christians as a central document in the history of the Church. To trade union leaders of the late nineteenth and twentieth centuries, it was a powerful tool for reminding workers that the Holy Father supported fair wages and healthy working conditions for all God's people. Just the same, for business leaders of the several Red Scares (especially 1917-1920 and 1945-1955), it became a powerful tool in discrediting socialist demands as both “materialistic” and “atheistic.” This piece illustrates that while Rerum Novarum has been very helpful in catalyzing the public recognition of trade unions in the United States, its rejection of “socialism” is also partially responsible for the challenges workers have faced in expanding the power of labor to set the terms of industrial justice outside the workplace.

--Dan Ernst 

Auerbach's "Overseer State"

Sascha Auerbach, University of Nottingham, has published The Overseer State: Slavery, Indenture and Governance in the British Empire, 1812–1916 (Cambridge University Press):   

In this compelling work, Sascha Auerbach offers a bold new historical interpretation of late-stage slavery, its long-term legacies, and its entanglement with the development of the modern state. In the wake of abolition, from the Caribbean to southern Africa to Southeast Asia, a fusion of government authority and private industry replaced the iron chains of slavery with equally powerful fetters of law and regulation. This 'overseer-state' helped move, often through deceptive and coercive methods, millions of Indian and Chinese indentured laborers across Britain's imperial possessions. With a perspective that ranges from Parliament to the plantation, the book brings to light the fascinating and terrifying history of the world's first truly global labor system, those who struggled under its heavy yoke, and the bitter legacies left in its wake.

--Dan Ernst

OAH John D’Emilio LGBTQ History Dissertation Award to Olmstead

At its annual meeting in April, the Organization of American Historians awarded the John D’Emilio LGBTQ History Dissertation Award ("given annually for the best PhD dissertation in U.S. LGBTQ
history") to Shay Olmstead (Rochester Institute of Technology) for "‘Refuse to Run Away’: Transsexual Workers Fight for Civil Rights, 1969–1992," University of Massachusetts Amherst, 2024. The citation:

In this timely, innovative, and thoughtfully structured dissertation, Shay Olmstead explores how trans workers harnessed both civil rights and disability law to confront antitrans employment discrimination in the United States from the late 1960s through the early 1990s. Olmstead spotlights the experiences of over thirty claimants who privileged narrow, individual legal action over collective, grassroots organizing and consciously worked to distinguish themselves from others in LGBTQ+ communities. These trans claimants petitioned elected officials, the courts, and various government agencies at the federal, state, and local levels to define amorphous legal concepts such as “sex” and “disability,” albeit in “trans-exclusionary ways” that also authorized “the mistreatment of some gay, intersex, and gender-nonconforming cissexual workers.” Olmstead’s dissertation therefore recasts both queer labor and legal history while also intervening in the fields of disability history and studies. The dissertation ultimately offers a cautionary tale with profound implications for our present moment of rampant (legal and extralegal) discrimination. 

Congratulations to Professor Olmstead!

-- Karen Tani

Federal History

Federal History 17 (2025) has now been published open-access.  It includes much legal history, including book reviews (including a posthumously published one by Ken Kersch) and an interview with Michael Willrich, a former president of the American Society for Legal History.  Here is the TOC:

Editor’s Note
Benjamin Guterman

Roger R. Trask Lecture 

Guardians of History at the Library of Congress
John Y. Cole

Articles

“The Duty of Government”: The Politics of the Domestic Postal Money Order, 1837–1911
 Christopher W. Shaw

Shipowners and Seamen in the Establishment of the Department of Commerce and Department of Labor, 1898–1920
Kathleen S. Sullivan

The Judgeships of the U.S. Commerce Court, 1910–1913: How Their Ambiguous Status Threatened Judicial Independence and Guided the Creation of Future Specialized Federal Courts
Jake Kobrick

“A living force”:  Franklin D. Roosevelt’s Vision of American Democracy
Iwan Morgan

The Defense Logistics Agency in Operation Enduring Freedom, 2001–2014: The Commodity Side of Logistics Efficiency
Colin Jay Williams

Interview

An Interview with Michael Willrich
Benjamin Guterman

Roundtable 

Prohibition, The Constitution, and States’ Rights, by Sean Beienburg

Introduction by Robinson Woodward-Burns, Howard University
Review by Ken I. Kersch, Boston College
Review by Susan McWilliams Barndt, Pomona College
Review by Review by Emily Pears, Claremont McKenna CollegeReview by George Thomas, Claremont McKenna College
Author’s Response by Sean Beienburg, Arizona State University

Reviews in Legal History

Terri Diane Halperin
Timothy Messer-Kruse, “The Carried-Off and the Constitution: How British Harboring of Fugitives from American Slavery Led to the Constitution of 1787”
Kevin Arlyck, “The Executive Branch and the Origins of Judicial Independence”

Reid Arno
Norrinda Brown, “Black Liberty in Emergency”
Christopher S. Havasy, Joshua C. Macey, Brian Richardson, “Against Political Theory in Constitutional Interpretation”
Carla LaRoche, “Black Women and Voter Suppression”

Benjamin Guterman
Kate Andrias, “Constitutional Clash: Labor, Capital, and Democracy”

Amelia Flood
Amy McMeeking, “Citizenship, Self-Determination, and Cultural Preservation in American Samoa”

Lisa Parshall
William M. Carter Jr., “The Second Founding and Self-Incrimination”

Ruskola on the Making of the Chinese Working Class

Teemu Ruskola, University of Pennsylvania Carey Law School, has posted The Making of The Chinese Working Class, which is forthcoming in the New Left Review.

This essay, forthcoming in the New Left Review, is an advance excerpt from a book entitled The Unmaking of the Chinese Working Class: The Global Limits of Capitalism, to be published by Verso Books in 2026. The title of the essay is a deliberate nod to E.P. Thompson’s classic The Making of the English Working Class. The English working class constituted the paradigmatic proletariat in the initial stages of industrial capitalism in the West. It provides an ideal lens for examining the emergence of another proletariat of global significance on the opposite edge of the Eurasian landmass, one that is emblematic of capitalism’s latest stage.

Thompson framed his analysis in terms of the Enclosure Movement, which expropriated peasants of their land and left them with no option but to sell their labor. In China, too, there is occurring a similar dispossession of peasantry that is sometimes described as a New Enclosure Movement. However, the two enclosure movements differ notably in their temporal and spatial scope.  First, processes that took place over a period of several centuries in England are being telescoped into just three decades in China.  Second, they are taking place in the opposite order:  the initial commodification of industrial labor in the 1990s was accompanied by a seemingly inexhaustible stream of migrant laborers into cities even without the large-scale commodification of rural land.  Why, then, dispossess a peasantry that has already submitted to capital voluntarily, i.e., under economic duress without the need to resort to forcible dislocation?  This essay, and the book of which it is a part, address this question by focusing on distinctive forms of ownership of rural and urban land in China—a legal distinction that has no precedent in Chinese history, Marxian thought, or Soviet praxis.

--Dan Ernst

Highsmith on Governing the Company Town

Brian Highsmith, Lecturer and Academic Fellow in Law and Political Economy at the Harvard Law School, has posted Governing the Company Town, which is forthcoming in the Stanford Law Review:

Workers in Pullman, 1914 (CHM)

This Article explores the forms of public and private governance that facilitate localized corporate domination. Researchers have documented the oppressive employment relationship that characterized historical “company towns,” but few accounts yet have examined these communities as local governments. I use archival research to identify institutional continuities between corporate fiefdoms like George Pullman’s model town outside Chicago (1880-1898) and Disney’s self-governed district near Orlando (1967-2023). I demonstrate that local government law has contributed to the recent reemergence of company-dominated enclaves, namely by deferring to private governance and facilitating jurisdictional fragmentation.

During the Gilded Age and Progressive Era, proprietors of company-owned towns exercised absolute control over workers through the private law of property and contract. Mining bosses and industrial barons like Pullman intentionally rejected the municipal form, using dismissal and eviction to enforce company policy as the operative governing authority within their dominions. This strategy became less effective after the New Deal, leading observers to pronounce the demise of the company town. But I argue that parallel developments in local government law have allowed the company town’s continuation through new institutional forms, enabling corporate titans to wield public powers without accountability to any broad public. Rather than facilitating domination over captive worker-residents, these institutional forms are used primarily to externalize costs and escape democratic obligations like taxation—goals that also deeply shaped the governance of historical company towns. I review this playbook through several recent case studies, demonstrating how territorial and functional fragmentation have facilitated the proliferation of corporate enclaves—allowing spatially-concentrated private capital to secede from local democratic control.

I suggest that the company town can be understood as a democratic phenomenon: a distinctive form of private tyranny. Since the Founding, theorists have acknowledged the vulnerability of small and non-diverse jurisdictions to tyrannical rule-by-faction. By contextualizing new examples like Elon Musk’s efforts to incorporate his model towns in Texas, I show that this fear is realized where corporate interests either commandeer our formal institutions of governance or displace their typical role in structuring public life.

--Dan Ernst

Roberts on the Forced Labor Convention of 1926

Christopher M. Roberts, Chinese University of Hong Kong, has posted Re-Covering Forced Labour: Colonial Foreclosures and Forgotten Potentials, which is forthcoming in the Melbourne Journal of International Law:

This article aims to reopen the question of the meaning of forced labour. It undertakes this task through a detailed exploration of the history of the 1930 Convention concerning Forced or Compulsory Labour ('Forced Labour Convention') based on a careful reading of the archival record. The history of the Forced Labour Convention and its closely linked predecessor, the 1926 Convention to Suppress the Slave Trade and Slavery, reveals that while the processes leading to both were initially open-ended, colonial interests ultimately produced sharp limitations in both texts. Recognising the colonial foundations of contemporary international law in this area should enhance our openness to reconsidering how we think about coercive labour today. The development of the Forced Labour Convention did not only consist in limiting dynamics, however. While they were pushed to the margins, this article also highlights three areas-conditions of work, conditions of life and worker freedoms-in which the historical record helps to suggest a more expansive, progressive understanding of forced labour than that which has become commonplace. Reconstructing our approach to forced labour, with attention to these potentials, can revitalise the concept in the contemporary world, overcoming close to a century of foreclosure.

--Dan Ernst

McKinley on Self-Purchase in 17th-C Andalucia

Michelle A. McKinley, University of Oregon, has published  Financing Freedom: Self-Purchase and Reenslavement in Seventeenth-Century Andalucía in the William and Mary Quarterly, 3d ser., 81, no. 4 (October 2024): 651–86

This article explores cases in which slaveholders, enslaved and freed people, and courts battled over the customary interpretation of the rights of wage-earning slaves in seventeenth-century Andalucía. Throughout the Spanish Empire, enslaved people could purchase their freedom through the processes of cortación (later known as coartación) and ransom (rescate). People paid their purchase price in installments and eventually received freedom papers, which were notarized agreements that reflected the terms of both parties upon receipt of payment. However, freedom papers do not reveal what happened when contracting parties experienced changed circumstances, and many of the particularities of waged enslavement on the Iberian Peninsula and in the Spanish Empire have remained obscure to scholars. Wage-earning slaves inhabited an ambiguous legal space of conditional liberty with rights determined by custom or social practice rather than legislation. Legal cases can shed new light on how the conditions of waged enslavement and conditional liberty were understood and contested in historical moments of economic crisis in seventeenth-century Andalucía. By focusing on stressful moments of property confiscation and currency devaluation, we can see the meanings ascribed to conditional liberty and the attendant legal rights that people who inhabited this conditional status wielded or struggled to enforce in the absence of legislation or codified doctrine.

--Dan Ernst

Legal History at Queen Mary University of London

The Department of Law, Queen Mary University of London, has announced three upcoming events of interest to legal historians.  All are free and everyone is welcomed.

16 October
Law, Labour, and Economy in the 19th Century
With Jonathan Connolly, Bronwen Everill, Erik Mathisen, and Miles Ogborn

23 October
The Devil in Medieval Legal Culture
With Karl Shoemaker

20 November
Law, Logic, Literature: A Symposium on "The Logical Renaissance"
With Katrin Ettenhuber, Kevin Killeen, Lorna Hutson, Julie Stone Peters, and Maksymilian Del Mar

--Dan Ernst

Labor and Political Economy at the Warren Center

 [Via H-Law, we have the following announcement.  DRE.]

The 2025-26 Warren Center Faculty Fellowship will be on the theme of Labor and Political Economy in American History led by Joel Suarez (Harvard History and Social Studies) and Sven Beckert (Harvard History).

The Warren Center, Harvard’s research center for United States history, invites applications for a seminar on Labor and Political Economy in American History. The goal is to advance the revival and reimagining of labor history. Recent histories and theorizations of class formation and social reproduction have emerged alongside new research in law and political economy, money and finance, and environmental and intellectual history, providing rich portraits of economic life that are too often written in parallel rather than in conversation with one another. We will build on these developments to foster a capacious labor history that explains change in working class life while embracing the temporal, geographical, and methodological expansiveness found in the various subfields and disciplines concurrently historicizing capitalism’s long history. We seek fellows and guest lecturers from diverse scholarly backgrounds including, but not limited to law, political theory, sociology, anthropology, labor studies, political economy, and social, political, environmental, intellectual, and economic and financial history. We are in particular interested in scholars thinking about American labor history in transnational, global, and comparative perspectives.

This endeavor aims to build on traditional studies of proletarianization and class re-compositions by expanding labor history’s temporal scope, range of methodologies, and subjects of inquiry. That is, we seek to continue labor history’s inquiry into the labor movement and its historicizing of foundational concepts (e.g., the family, freedom, property, the market, race, the state), but also seek to invite scholars who bring new questions and methodologies to the study of informal labor and informal markets, waged and unwaged reproductive labor, unemployment and wageless life, debt and public and private power, migration and the state, environmental agency and crises, social rights and liberalism, money and ideology, and other areas of research that center labor in the history of capitalism.

Fellows will present their work in a seminar led by Joel Suarez (Harvard History and Social Studies) and Sven Beckert (Harvard History). Applicants may not be degree candidates and should have a Ph.D. or equivalent. Fellows have library privileges and an office which they must use for at least the 9-month academic year. The Center encourages applications consistent with the seminar theme and from qualified applicants who can contribute, through their research and service, to the diversity and excellence of the community. Stipends: individually determined according to fellow needs and Center resources, up to a maximum of $66,000. Note that recent average stipends have been in the range of $50,000.

Application deadline: January 8, 2025.  Letters of recommendation deadline: January 10, 2025. Apply [here.]

Friedman on Work Accidents

Lawrence M. Friedman, Stanford Law School, has published Work Accidents: A Drama in Three Acts in the Hofstra Labor and Employment Law Journal.  The acts are Farwell, workers compensation statutes, and their administration.  An admirably compact essay, by the master.  And, while we're on the subject, we recently viewed this, which was part of the exhibit, American Art: The Stories We Carry, at the Seattle Art Museum.

--Dan Ernst