Cheta's "How Commerce Became Legal"

Omar Youssef Cheta, Syracuse University, has published How Commerce Became Legal: Merchants and Market Governance in Nineteenth-Century Egypt (Stanford University Press):

When Egypt's markets opened to private capital in the 1840s, a new infrastructure of commercial laws and institutions emerged. Egypt became the site of profound legal experimentation, and the resulting commercial sphere reflected the political contestations among the governors of Egypt, European consulates, Ottoman rulers, and a growing number of private entrepreneurs, both foreign and local. How Commerce Became Legal explores the legal and business practices that resulted from this fusion of Ottoman, French, and Islamic legal concepts and governed commerce in Egypt.

Focusing on the decades between the formalization of Cairo's practical autonomy within the Ottoman Empire in the 1840s and its incorporation into the British Empire in the 1880s, Omar Cheta considers how modern laws redefined the commercial sphere, shaping a mode of market governance that would persist for decades to come. He highlights the demarcation of a new law-defined commercial realm separate from the land regime and from civil or family-centered exchanges, and reconstructs these changes through both legal codes and state orders, as well as individual merchant voices preserved in court documents. As this book documents both individual experiences and structural explanations, it offers a rare perspective on the scope and reach of market governance over the mid nineteenth century, revealing changes simultaneously from within and without state institutions.

--Dan Ernst 

Weekend Roundup

• Now on YouTube: the National Constitution Center’s panel on “the history of the African American fight for freedom during the Civil War and Reconstruction periods”  Edda Fields-Black and James Oakes were panelists.  Thomas Donnelly of the NCC moderated.
  

• The Union County Board of County Commissioners is hosting Gibbons v. Ogden: Its Continuing Importance 200 Years Later with Edward Hartnett, Seaton Hall, on Tuesday, March 4th from 12:30 p.m. until 1:30 p.m. "at the Courtroom of Honorable Lisa Miralles Walsh (A.J.S.C.) on the 1st Floor Tower of the Union County Courthouse, located at 2 Broad Street, Elizabeth." 
  

• Last semester, in the  course titled “Research Methods in Judicial History,” Yale students "had the opportunity to delve into the working papers of former Supreme Court Justice Potter Stewart ’37 LAW ’41 (Yale Daily News).

• Jake Kobrick, Associate Historian at the Federal Judicial Center, has a nice post on Eighth Amendment Prison Litigation on the FJC website. 
  

• A symposium on Robert Post's Holmes Devise history of the Taft Court is at Balkinization.  We've spotted contributions by Laura Kalman, Justice Stephen Breyer, and Brad Snyder.
  

• A note in the Harvard Law Review: Compulsory Voting’s American History. 
  

• From In Custodia Legis: The History of the U.S. Bar Exam, Part I and Part II. Also: "Philadelphia’s Gilded Age Medievalist: Henry Charles Lea."

• This season in the Institute for Justice's podcast series Bound by Justice is devoted to property cases, including "a tour of the house at issue in Pennsylvania Coal v. Mahon" and three pods on the history of zoning."

• Over at JOTWELL, Richard Murphy has posted an admiring review of Andrea Scoseria Katz and Noah A. Rosenblum's, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, 123 Colum. L. Rev. 2135 (2023).

• ICYMI: "Of Course Presidents Are Officers of the United States," says Mark Graber (The Atlantic).  Mug commemorating real-life crime 1823 style flies to 10 times estimate (Antiques Trades Gazette).  John Q. Barrett on Cardozo's quip (SSRN). How a 1924 Immigration Act Laid the Groundwork for Japanese American Incarceration: An Interview with Mae Ngai (Smithsonian).

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

Travers's "Empires of Complaints"

Robert Travers, Cornell University, has published Empires of Complaints: Mughal Law and the Making of British India, 1765-1793 (Cambridge University Press):

In this deeply researched and revealing account, Robert Travers offers a new view of the transition from Mughal to British rule in India. By focusing on processes of petitioning and judicial inquiry, Travers argues that the East India Company consolidated its territorial power in the conquered province of Bengal by co-opting and transforming late Mughal, Persianate practices of administering justice to petitioning subjects. Recasting the origins of the pivotal 'Permanent Settlement' of the Bengal revenues in 1793, Travers explores the gradual production of a new system of colonial taxation and civil law through the selective adaptation and reworking of Mughal norms and precedents. Drawing on English and Persian sources, Empires of Complaints reimagines the origins of British India by foregrounding the late Mughal context for colonial state-formation, and the ways that British rulers reinterpreted and reconstituted Persianate forms of statecraft to suit their new empire.

Here are two endorsements:

"Deeply researched and carefully argued, this masterful study tracks the influence of Mughal legal practices and Indian petitioners on the emerging colonial state. A must read for anyone interested in the history of property and credit, legal writing, and British imperial policies in South Asia."

Lauren Benton, Yale University

"This is a path-breaking piece of scholarship that offers a rare bridge between the pre-colonial and the colonial in South Asian history. Using a wealth of Persian materials in addition to better-known colonial sources, the book reconceives East India Company rule in late eighteenth-century Bengal as a Persianate empire, showing how Mughal governance practices, laws and ideologies continued to be adopted and repurposed by the incoming colonial regime."

Nandini Chatterjee - University of Exeter

--Dan Ernst

Green on the Three Commerce Powers

Christopher R. Green, University of Mississippi School of Law, has posted Tribes, Nations, States: Our Three Commerce Powers:

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.”

Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday.

Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship — the Privileges or Immunities Clause for states and fiduciary principles for the federal government — instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law — federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari — receive possible justification.

 -Dan Ernst

Meese on Wickard and Antitrust

Alan J. Meese, William & Mary Law School, has posted Wickard Through an Antitrust Lens, which appeared in the William & Mary Law Review 60 (2019): 1336-1393:

For several decades, the Supreme Court employed the direct/indirect standard to police the boundary between mutually exclusive state and federal power over intrastate conduct affecting interstate commerce. Under this regime, Congress possessed exclusive authority over intrastate conduct that affected interstate commerce directly, leaving states with exclusive authority over intrastate conduct that produced only indirect effects. The Supreme Court read the direct/indirect standard into the Sherman Act during the 1890s, holding in United States v. E.C. Knight and other decisions that the statute only reached intrastate restraints that impacted interstate commerce directly. Impacts were direct, in turn, if the restraint exercised market power to the detriment of out-of-state consumers. Intrastate restraints that produced only indirect effects fell within the exclusive authority of the states.

Wickard v. Filburn famously jettisoned the direct/indirect standard in 1942, holding that Congress could reach any conduct that produced a “substantial effect” on interstate commerce, even if such effects were indirect or fortuitous. Later in the same decade, in Mandeville Island Farms v. American Crystal Sugar, the Court read Wickard’s substantial effects test into the Sherman Act, holding that the statute reached purely local restraints producing indirect but “substantial” impacts on interstate commerce.

Wickard offered three critiques of the direct/indirect standard, critiques echoed by Mandeville Island Farms. First, Wickard claimed that the Court had almost always applied the direct/indirect standard when reviewing Commerce Clause challenges to state legislation, only rarely employing the test to invalidate an Act of Congress as exceeding the scope of the Commerce power. Indeed, the Court claimed that only five post-E. C. Knight decisions had invalidated congressional statutes as exceeding the scope of the commerce power, three during a two year period (1935-36). Second, Wickard claimed that the direct/indirect standard was “mechanical” and obscured judicial inquiry into the actual economic impact of the conduct Congress sought to regulate. Third, Wickard claimed that decisions applying the direct/indirect standard during the first third of the 20th Century did so under the sway of the discredited E.C. Knight decision and had co-existed with a parallel set of decisions, beginning with the Shreveport Rate Case, that took a more expansive approach to congressional authority. This alleged doctrinal ambiguity attenuated the precedential force of decisions that had applied the direct/indirect standard. 

It is no surprise that Mandeville Island Farms and subsequent Sherman Act decisions drew upon Wickard when discerning the scope of the Sherman Act vis a vis local restraints. This essay “flips the script” and asks “what if” Wickard had looked to Sherman Act precedents for guidance regarding the scope of the Commerce power. The essay contends that the Court’s experience with application of the direct/indirect standard in the antitrust context undermines Wickard’s critiques of that regime. For instance, inclusion of the Court’s antitrust federalism case law more than doubles the number of pre-Wickard decisions that refused to apply a federal statute to conduct generating a substantial economic effect on interstate commerce, thus falsifying Wickard’s claim that only two decisions between E.C. Knight and the New Deal enforced limits on Congressional power. Moreover, the antitrust federalism decisions were not “mechanical” or otherwise insensitive to the actual economic effects of challenged conduct. Instead, each such decision reflected a fact-intensive effort to determine the actual impact of the conduct in question, asking whether the restraint visited harm on citizens in other states. Finally, the Court’s pre-Wickard antitrust federalism decisions rarely cited E. C. Knight, and then only for the purpose of distinguishing or narrowing the decision so as to allow the Sherman Act to reach intrastate transactions producing interstate harm. These decisions were fully consistent with the Shreveport Rate Case, which held that Congress could preempt state regulation of intrastate rates that threatened to “injure” interstate commerce, by “directly interfering” with interstate rates. Indeed and ironically, a thorough understanding of the Court’s pre-New Deal antitrust federalism decisions helps generate a more enduring and plausible rationale for the result in Wickard, a rationale that does no violence to the constitutional order that Wickard repudiated.

--Dan Ernst.  H/t: Legal Theory Blog

Haara, "Bourbon Justice"

Via the New Books Network, we have word of a 2018 publication of interest from Potomac Books: Bourbon Justice: How Whiskey Law Shaped America, by Brian F. Haara (independent scholar). A description from the Press:

Bourbon whiskey has made a surprising contribution to American legal history. Tracking the history of bourbon and bourbon law illuminates the development of the United States as a nation, from conquering the wild frontier to rugged individualism to fostering the entrepreneurial spirit to solidifying itself as a nation of laws. Bourbon is responsible for the growth and maturation of many substantive areas of the law, such as trademark, breach of contract, fraud, governmental regulation and taxation, and consumer protection. In Bourbon Justice Brian Haara delves into the legal history behind one of America’s most treasured spirits to uncover a past fraught with lawsuits whose outcome, surprisingly perhaps, helped define a nation.

Approaching the history of bourbon from a legal standpoint, Haara tells the history of America through the development of commercial laws that guided our nation from an often reckless laissez-faire mentality, through the growing pains of industrialization, and past the overcorrection of Prohibition. More than just true bourbon history, this is part of the American story.

My favorite blurb from among the advance praise:

"Bourbon Justice: How Whiskey Law Shaped America actually digs into the law cases behind Bourbon, and presents the information in a very enjoyable read.  Who knew that reading about law cases could actually be interesting?"—New Bourbon Drinker

More information is available here. You can hear Haara talk about the book here.

-- Karen Tani

Special issue: Merchants and commercial conflicts in European history

Continuity and Change has a special issue out on "Merchants and Commercial Conflicts in Europe, 1250-1600," 32 (2017): special issue 1. Here is the line-up with abstracts:

• Alain Wijffels, "Introduction: Commercial quarrels--and how (not) to handle them," 1-9: The settlement of structural commercial conflicts of interest cannot be exclusively subsumed under the heading of dispute resolution. Even when a particular conflict opposing specific individuals or groups of interests could be settled, the broader underlying conflicts of interest would subsist and re-emerge. Both commercial and institutional or political actors would therefore rely on various techniques of conflict management, a process imposing restraint on the opposing parties while allowing sufficient leeway for business to be continued. Both conflict resolution and conflict management were devices of public and corporate governance, and therefore, following the late medieval tradition, instruments more or less based on established patterns of legal or quasi-legal models legitimised by accepted or conventional parameters of ‘justice’.

• Flávio Miranda, "Conflict Management in western Europe: the case of the Portuguese merchants in England, Flanders and Normandy, 1250-1500," 11-36: Recent historiography argues that the legal autonomy of municipal governments created the necessary conditions for successful commercial transactions and economic growth in certain parts of Europe in the later Middle Ages, and that these features attracted foreign merchants. This article uses empirical data from England, Flanders and Normandy to test the following questions: were there significant differences in rules, laws and institutions between one place and another in late medieval western Europe? Were the Portuguese merchants drawn to markets that hypothetically had more effective institutions? The findings demonstrate that legal institutions and conflict management were very similar across western Europe, and that there is no evidence that the Portuguese opted for trading in a certain market because of its effective institutions. Moreover, the article claims that the merchants seemed to prioritise protection and privilege while trading abroad, and it highlights the role of commercial diplomacy in conflict management.

• Thomas K. Heebøll-Holm, "Law, order and plunder at sea: a comparison of England and France in the fourteenth century," 37-58: This article addresses the management of maritime plunder and conflict in the waters of England and France in the fourteenth century. It argues that during this century a fundamental change occurred. Around 1300, maritime conflict was handled by recourse to the strictly civil law merchant and law maritime, or by Marcher law. However by the 1350s and 1360s the kings of England and France, moved by contemporary political events and theories of sovereignty at sea, created courts of Admiralty that challenged the previous systems’ jurisdiction. These initiatives eventually paved the way for the criminalisation of private maritime conflict.

• Justyna Wubs-Mrozewicz, "The late medieval and early modern Hanse as an institution of conflict management," 58-84: Ever since research on the Hanse began in the nineteenth century, there have been repeated efforts to redefine the boundaries and the core of the phenomenon. Views of the Hanse have evolved, and it has been seen by turns as a profoundly German league of towns, and as a network or organisation of towns and traders that was present in commercial centres and harbours from Novgorod to Portugal, and from Norway to Italy. In more general discussions on the institutional development of commerce in Europe, many of them influenced by the New Institutional Economics, the Hanse has even appeared as a mega-guild. The revival of the field of institutional economics and the history of commerce in pre-modern Europe has recently spawned a reappraisal of Hanseatic sources. The present article contributes to this debate by arguing that from the perspective of conflict management, the late medieval and early modern Hanse was an institution. There were several institutional mechanisms, such as a strong preference for mediation and arbitration in conflicts between individuals, as well as a mediation strategy for internal conflicts between towns. All of these mechanisms combined in a multifaceted institution of conflict management, which represented the added value of Hanse membership for traders, and for their towns.

• Andrea Caracausi, "A reassessment of the role of guild courts in disputes over apprenticeship contracts: a case study from early modern Italy," 85-114: This article analyses the mechanisms of conflict resolution in apprenticeship contracts using a large database of disputes from early modern Italy. It finds that the guild court under investigation (the Padua Woollen Guild court) did not enforce training contracts, but rather sought to improve on incomplete contracts by adding clauses, thereby helping individuals renegotiate and redefine the contractual arrangements into which they had decided to enter. However, power relations within the court operated largely in favour of employers, both merchants and master craftsmen. The article concludes that alternative contract enforcement systems, such as municipal or state courts, were probably better suited than corporative systems for resolving disputes surrounding apprenticeship.

Further information is available 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.