Weekend Roundup

• Saul Cornell’s contribution to the Slate series, “How Originalism Ate the Law,” is Why the Right Dominates When It Comes to Legal “History.”  (His answer?  “They’re invested in legal education, creating an originalist industrial complex with outsize influence.”)  Also, Thomas Wolf explains the Brennan Center's efforts to mobilize historians to counter the Supreme Court's historical claims.
  

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  For Members of the American Society for Legal History:  A reminder that the ASLH  has announce "a new virtual initiative – the Early Career (Virtual) Legal History Workshop – designed to provide support and intellectual community to early career scholars working in legal history, broadly defined.  Applications are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs (those working toward a JD/PhD must have completed the PhD)."  Deadline for Applications: June 30, 2024.  More.
  

• "History and the Law," a panel conversation "on important moments in American legal history, applying history education to the study and practice of the law, and more," presented as an introduction to the History Pre-Law Concentration at Villanova University (YouTube).

• Ariela Gross, UCLA School of Law, will lecture on  “Erasing Slavery – How Stories of Slavery and Freedom (in Natchez) Shape Battles Over the Constitution” at the Tuesday, May 28 meeting of the Natchez Historical Society (Natchez Democrat).
  

• LHB Founder Mary Dudziak, Emory Law, on the legacy of Korean War at the recent TCU Conference on the Korean War (YouTube).
  

• More on that recent conference on the political history of the New Deal at Vanderbilt University.
  

• Erika Rappaport, University of California, Santa Barbara, reviews The Rise of Mass Advertising, Law, Enchantment and the Cultural Boundaries of British Modernity, by Anat Rosenberg in the English Historical Review. Christopher Tomlins, Berkeley Law, reviews Joseph Fishkin and William E. Forbath’s The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy in the Journal of Law and Political Economy.  And Ajay K. Mehrotra, Northwestern Law, reviews Andrew Koppelman's Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed, also in JLPE.
  

• ICYMI: How America Tried and Failed to Stay White (WaPo). No, Congressman, TJ did not sign the Constitution (Mediatite).  Early Medieval England and Its Neighbors encounters some Anglo-Saxon attitudes.
  

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

The Legacy of Stanley Surrey

The Legacy of Stanley S. Surrey, a special issue of Law and Contemporary Problems, has been published.   Its editors are Ajay K. Mehrotra and Lawrence Zelenak.

Foreword: The Legacy of Stanley S. Surrey
Ajay K. Mehrotra & Lawrence Zelenak

When an Aspiring Tax Lawyer Considered Labor Unions Important to the Future of Capitalism
Catherine L. Fisk

Stanley Surrey, The New Deal, and the Virtues of Incremental Tax Reform
Joseph J. Thorndike

The Surprising Surrey: Stanley S. Surrey as Educator, Mentor, and Institution Builder
Ajay K. Mehrotra

Surrey’s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was
Steven A. Dean

Stanley Surrey, the Shoup Mission, and Tax Administration in Japan
W. Elliot Brownlee & Eisaku Ide

Textualism, the Authoritativeness of Congressional Committee Reports, and Stanley Surrey
George K. Yin

Stanley Surrey, the American Law Institute Income Tax Project, and the Normative Structure of the Income Tax
Charlotte Crane

Stanley Surrey and Taxing Unreallized Appreciation
Lawrence Zelenak

Stanley Surrey’s Lasting Influence
Assaf Harpaz & C. Eugene Steuerle

What Would Surrey Say? The Long Reach of Stanley S. Surrey
Reuven Avi-Yonah & Nir Fishbien

The (Tax) Policy Entrepreneur
Mirit Eyal-Cohen

‘Moralist’ Versus ‘Scientist’: Stanley Surrey and the Public Intellectual Practice of Tax Policy
Daniel Shaviro

Platt on Baldwin Bane and the Securities Act of 1933

We were just thinking to ourselves that someone should study Baldwin Bane.  It turns out, Alexander I. Platt, University of Kansas School of Law, has and has posted the result as The Administrative Origins of Mandatory Disclosure, which is forthcoming in the Journal of Corporation Law:

The birth of mandatory corporate disclosure is one of the defining narratives of the modern regulatory state. The brightest legal minds of their generation were called down from the ivory tower to help FDR rein in the excesses of Wall Street. Inspired by their intellectual mentor Louis Brandeis, they overcame fierce resistance from the securities industry (who opposed any regulation) as well as from the corporatist wing of New Deal reformers (who favored a broader economic planning role for the government) to craft a legislative solution that was so well-conceived that it has remained in place essentially unchanged for nearly a century – the Securities Act of 1933.

Except this foundational narrative turns out to be more of an origin MYTH. Drawing on archival sources, oral histories, and other primary documents, this paper presents a revisionist history of the origins of mandatory disclosure that looks past the abstractions of statutory text to the realities of administration. I show that the real mandatory disclosure regime implemented in the 1930s was not the Brandeisian statutory system crafted by legal luminaries, but was an entirely different, more corporatist regime invented by an obscure mid-level official in defiance of those legislative directives.

This paper excavates the lost history of mandatory disclosure. It is a story of how creative and resourceful administration by an ordinary mid-level official transformed – and likely redeemed – one of the foundational regulatory programs of the modern administrative state. But it is also a story of legislative failure by iconic lawyer intellectuals and their favored model of economic regulation.

--Dan Ernst

Jabour on Sophonisba Breckenridge

 The University of Illinois Press has published a biography on the important twentieth-century reformer and academic Sophonisba Breckenridge: Sophonisba Breckinridge: Championing Women's Activism in Modern America (2020), by Anya Jabour (University of Montana). A description from the Press:

Sophonisba Breckinridge's remarkable career stretched from the Civil War to the Cold War. She took part in virtually every reform campaign of the Progressive and New Deal eras and became a nationally and internationally renowned figure. Her work informed women's activism for decades and continues to shape progressive politics today.

Anya Jabour's biography rediscovers this groundbreaking American figure. After earning advanced degrees in politics, economics, and law, Breckinridge established the University of Chicago's School of Social Service Administration, which became a feminist think tank that promoted public welfare policy and propelled women into leadership positions. In 1935, Breckinridge’s unremitting efforts to provide government aid to the dispossessed culminated in her appointment as an advisor on programs for the new Social Security Act. A longtime activist in international movements for peace and justice, Breckinridge also influenced the formation of the United Nations and advanced the idea that "women’s rights are human rights." Her lifelong commitment to social justice created a lasting legacy for generations of progressive activists.

Advance praise:

"In propulsive prose, Anya Jabour brings to life progressive feminist Sophonisba Breckinridge, whose forty-year career as an advocate for social justice provides a model of 'passionate patience' for progressives in the twenty-first century."--Robyn Muncy

"Anya Jabour has written an outstanding biography of Sophonisba Breckinridge. She has thoroughly convinced me of Breckinridge's important role in American and women's history and how much of each is revealed by her lifelong activism. The research is expansive and the writing is flawless."--Joan M. Johnson

More information is available here.

-- Karen Tani

Vanatta and Conti-Brown on "Bank Supervision, the Great Depression, and the Creation of the New Deal"

Sean Vanatta (New York University - The Gallatin School) and Peter Conti-Brown (University of Pennsylvania - The Wharton School) have posted "Bank Supervision, the Great Depression, and the Creation of the New Deal." The abstract:

The banking crises of 1930-1933 created the Great Depression and with it the momentum that remade American politics with the election of Franklin Roosevelt in 1932. Pivotal to Roosevelt’s political success was the banking holiday of 1933, an event that restarted the financial system and became a keystone of 20th century political and financial history. In the conventional contemporaneous and historical narrative of these events the holiday represents the apotheosis of high politics and presidential power. Such accounts, however, say virtually nothing about what happened during the holiday itself. We reinterpret the banking crises of the 1930s—before and after Roosevelt’s election—through the lens of bank supervision, an institutional arrangement whereby government actors structure private markets in direct, visceral, haphazard, technocratic, political, disciplined, and arbitrary ways. This reinterpretation illustrates how the union of FDR’s inimitable political skills with the technocracy of bank supervision became key to the solving the banking crisis, jumpstarting the New Deal, and bringing the country back from the brink. Placing supervision at the center of this period of economic, political, and financial transition provides key insights into the exercise of government power, including the relationship between and among legitimacy, legality, politics, finance, and—perhaps especially—what it means for a government official to exercise discretion within a broad legislative mandate. This new approach, we argue, can provide an example of other reinterpretations of political history, from the New Deal and beyond, as an act of onsite government power, interacting with but defined only partially by law and politics.

Read on here.

In related news, we have learned that Vanatta has accepted an academic position at the University of Glasgow starting in the fall. Congratulations to Professor Vanatta!

-- Karen Tani

Ernst on New Deal Lawyers at AAA

I’ve posted my paper Mr. Try-It Goes to Washington: Law and Policy at the Agricultural Adjustment Administration, which is forthcoming in the Fordham Law Review as part of the symposium “The Varied Roles, Regulation, and Professional Responsibilities of Government Lawyers,” hosted by the Fordham Law Review and the Stein Center for Law and Ethics on October 12, 2018, at Fordham University School of Law:

Jerome Frank (LC)

In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration but better for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each forced to interpret same, ambiguous statutory language. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and justifiably so. It is obviously in line with the general intention of Congress as shown by legislative history. The statute is ambiguous. Let us work out an argument, if possible, so to construe the statute as to validate this important program.” Although the memoranda the two produced were interchangeable, Mr. Try-It wrote his in a fifth the time.

Although the professors in attendance might have nodded approvingly, Frank’s speech, later printed in the Congressional Record, was startlingly impolitic in its muddying of a distinction between law and policy that he insisted upon when battling administrators over the terms of marketing agreements for agricultural commodities. How Frank actually drew the line owed less to his legal realist jurisprudence that the persuasiveness of his two associate general counsels, the radicals Lee Pressman and Alger Hiss.

In this draft, be sure to check out note 190, which apparently discloses the existence of a previously unsuspected Hoover-era experiment in state-sponsored semiotics.

Rodriguez and Weingast on Administrative and Constitutional Law in the New Deal

Daniel B. Rodriguez, Northwestern University Pritzker School of Law, and Barry R. Weingast Stanford University, have posted Engineering the Modern Administrative State, Part I: Political Accommodation and Legal Strategy in the New Deal Era:

Administrative constitutionalism in the United States has been characterized by tension and accommodation. The tension reflects the unsettled nature of our constitutional scheme, especially with regard to separation of powers, and also the concern with agency discretion and performance. Still and all, we have accommodated administrative constitutionalism in fundamental ways, through a constitutional jurisprudence that, in the main, accepts broad delegations of regulatory power to the bureaucracy and an administrative law that oversees agency actions under procedural and substantive guidelines. This was not always the case. In this paper, part one of a larger project, we revisit the critical New Deal period to look at the strategies the Congress and the Supreme Court used to resolve controversies over the emerging administrative state. We see the political and legal accommodation as a product of a (mostly) coherent interbranch dialogue, iterative and fueled by strategy. Having surmounted some important roadblocks in the first New Deal, this effort ultimately resulted in a scheme that enabled the federal government to accomplish their three critical objectives: to deploy national power to solve new economic problems, to create delegations appropriate to modern needs, and to craft novel administrative instruments to carry out legislative aims – all of which required a due amount of legal accommodation, given extant legal doctrine and the interests of the courts.

H/t: Legal Theory Blog

Weekend Roundup

• The latest "AHR interview" is with Bianca Premo and Yanna Yannakakis, on their forthcoming American Historical Review article on legal jurisdiction and indigenous agency in colonial Mexico.

• From the Washington Post's "Made by History" section: Eric Rauchway (UC Davis) on "what Green New Dealers can learn from the first New Deal"; Ron Mize (Oregon State University) on what happened last time the U.S. militarized its southern border; and more.

• HLS’s Annette Gordon-Reed speaks on Confederate iconography and bias as part of the University of Houston Law’s Distinguished Speakers series on February 14 from 4:00 p.m. to 5:15 p.m.

• Advance alerts.  In Law and History Review: Restricting the Juror Franchise in 1920s England and Wales by Kevin Crosby.  In the American Journal of Legal History: Investor-State Dispute Settlement at the Dawn of International Investment Law: France, Mauritania, and the Nationalization of the MIFERMA Iron Ore Operations, by Jason Yackee.

• Seth Barrett Tillman has posted his latest briefs in the Emoluments Clause litigation, here and here. 

• Have you visited the ASLH website and The Docket lately?

• Books in Review. Karen J. Greenberg on Jonathan Gienapp’s Second Creation in The Nation.  David W. Blight on Judge Richard Gergel’s Unexampled Courage in the New York Times.

• ICYMI: The Minnesota Spokesman-Recorder’s “Minnesota Black History Salute” of Lena O. Smith, “Minnesota’s first female African American lawyer.”  The Knox Student on the Illinois Supreme Court Historic Preservation Commission’s traveling exhibit on the history of Illinois's judiciary.

• Update:  We've just spotted a new “Made by History” op-ed: Why Ford needs to grapple with its founder’s anti-Semitism, by Victoria Saker Woeste, American Bar Foundation.

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

Cushman on the Great Depression and Constitutional Law

Barry Cushman, Notre Dame Law School, has posted The Place of Economic Crisis in American Constitutional Law: The Great Depression As a Case Study, which is forthcoming in Liberal Constitutions in Financial Crises, edited by Tom Ginsburg, Mark Rosen, & Georg Vanberg (Cambridge University Press, 2019):

This chapter considers the role that conditions of economic crisis might have played in cases involving judicial review of economic regulation decided by the Supreme Court of the United States between March of 1932 and June of 1937. Part I conducts a general examination of the possibility that contemporary economic conditions may have operated as an exogenous variable inducing the justices to uphold challenged regulations. Part II explores the extent to which underlying economic conditions might have operated as an endogenous variable that was relevant to analysis of whether particular regulatory measures could be supported by existing constitutional doctrine. An Appendix plots the timeline of cases involving constitutional challenges to ameliorative legislation against a variety of contemporary economic indicators.

O'Brien on Landis

Out with Hart Publishing is The Triumph, Tragedy and Lost Legacy of James M. Landis by Justin O’Brien, University of New South Wales. From the publisher:

James M Landis – scholar, administrator, advocate and political adviser – is known for his seminal contribution to the creation of the modern system of market regulation in the USA. As a highly influential participant in the politics of the New Deal he drafted the statute which was to become the foundation for securities regulation in the US, and by extension the founding principle of financial market regulation across the world. He was also a complex and in some ways tragic figure, whose glittering career collapsed following the revelation that he had failed to pay tax for a five year period in the 1950s. The oversight was to cost possible elevation to the Supreme Court, forced prosecution and sentencing in 1963 to one month's imprisonment, commuted to forced hospitalisation, and subsequent suspension of licence to practise. This candid and revealing book sets his life in the context of his work as an academic, legislative draftsman, administrator and Dean of Harvard Law School. In rescuing from history Landis's battles and achievements in regulatory design, theory and practice, it speaks directly to the perennial problems in financial market regulation - how to deal with institutions deemed too big to fail, how to regulate the sale of complex financial instruments and what role can the professions play as gatekeepers of market integrity. It argues that in failing to learn from the lessons of history we limit the capacity of regulatory intervention to facilitate cultural change, without which contemporary responses to financial crises are destined to fail.

Here’s the TOC:

1 The Draftsman: The Normative Underpinnings of the Disclosure Paradigm 
2 The Administrator: Codes of Conduct and the Dynamics of Regulatory Politics 
3 The Activist: Institutionalizing the New Deal 
4 The Firefighter: The Existential Choice 
5 The Transformational Dean: Law, Lawyers and Society 
6 The Advisor: Revitalizing and Losing Regulatory Authority 
7 The Fall: Hubris and the Making of a Greek Tragedy 
Conclusion – The Lost Legacy: James M Landis and the
Future of Regulatory Capitalism

More information is available here.