The National Bankruptcy Archives

[We've recently had our attention drawn to this important collection at the Biddle Law Library of the Penn Carey Law School.  DRE]

In October 2000, the Biddle Law Library and the American College of Bankruptcy collaborated to create a special collection entitled the National Bankruptcy Archives (NBA), a national repository of materials relating to the history of debtor-creditor relations, bankruptcy and the reorganization of debt. The NBA collects records from the American College of Bankruptcy as well as from other organizations whose activities have been relevant to the history of bankruptcy and insolvency legislation, regulation, and administrative and judicial determination. The NBA also houses papers of individuals who have influenced the field, and other collections documenting the history of bankruptcy law.

JAH 112:2

[The latest issue of the Journal of American History, 112:2 (September 2025), includes much legal history.  Here’s the JAH’s summary.  DRE]

In recent years, sociologists have noted how the aggressive policing of small debts such as unpaid parking tickets contributes to the disproportionate incarceration of poor people and people of color. Justin T. Clark demonstrates how, centuries ago, debt played a similarly underappreciated role in the development of North American carceral punishment. Surprisingly, most early eighteenth-century prisoners in Boston were debtors, not criminals. After a series of evangelical religious awakenings, New England authorities began to imagine that imprisonment could serve a punitive (and not simply a procedural) function for criminals as well. This history may help us better understand the conditions leading to what legal historians have called the present “re-establishment” of debtor’s prisons.

Emancipated mothers whose children had been apprenticed against their wishes challenged those apprenticeships in the courts and enlisted the assistance of the Freedmen’s Bureau through the late 1860s. While the immediate goal was child recovery, freedwomen’s protests of apprenticeship marked a pursuit of long-denied reproductive justice rather than just an effort to contend with an individual act of kidnapping. By placing Black mothers at the center of postwar custody battles, Jessica Wicks-Allen illuminates how gender shaped the fight for family integrity in slavery’s aftermath and underscores the political and emotional stakes of reunion.

Nicole Martin encourages historians to view Reconstruction from an unexpected perspective: western boardinghouses of Nevada’s Comstock Lode. While western mining centers lay on the fringes of the consolidating nation, they provide a powerful lens for understanding how the idealized free-labor home at the heart of Reconstruction policy played out in rapidly industrializing economies struggling to reconcile older and newer values. By drawing on the private and public writings of people who lived in and ran Comstock boardinghouses, she insists that we turn our view of Reconstruction inward into the intimate lives of ordinary Americans to better understand the on-the-ground compromises that contributed to the success of American empire.

Crack cocaine cast a long shadow over the 1980s. While much is known about the carceral efforts to curb the drug’s influence, far less is understood about the urban political economy driving its spread. Pedro A. Regalado examines the rise of drug capitalism in New York City, revealing how long-simmering tensions in the city’s rental housing market created an opening for an illegal enterprise that extracted profit from buildings that landlords had struggled to exploit. Tenants fought back, defending the habitation value of housing and forging new alliances with police, housing courts, and elected leaders—a pattern that took hold nationwide.

JAH 110:4

[Journal of American History 110:4 (March 2024) is of unusual interest for legal historians.  (I expect to assign the first article when I teach Johnson v. McIntosh in my first-year Property course next spring.)  Below I reproduce summaries of the principal articles from an email to subscribers from the JAH's publisher, the Organization of American Historians.  DRE.]

Managing Settlers, Managing Neighbors: Renarrating Johnson v. McIntosh through the History of Piankashaw Community Building

The 1823 Supreme Court case Johnson v. McIntosh drew from a 1775 negotiation between land speculators and Peeyankihšiaki (Piankashaw people) to subjugate Indigenous sovereignty to the powers of Congress. This negotiation is usually framed as a “purchase,” but Joshua A. McGonagle Althoff makes clear that Peeyankihšia people intended to negotiate the right to live within, rather than own, their homelands. Moving away from the idea of a “purchase” reveals how Peeyankihšiaki were preparing for prosperity, not declension.

The “Profane Margins” of the State: Florida Sheriff Walter R. Clark and the Local History of Crime, Policing, and Incarceration

Sheriff Walter R. Clark of Broward County, Florida, used his office to enforce white supremacy, procure labor for local businesses, bolster the illegal gambling industry, and line his own pockets for nearly two decades in the twentieth century. Like other sheriffs, he was also central to the local workings of the state: policing the county, administering the courthouse, and more. Considering Clark in a long historical context from the Jacksonian Era to the present, Cindy Hahamovitch makes the case for the importance of sheriffs and local government in American life.

The Origins of the Student Loan Industry in the United States: Richard Cornuelle, United Student Aid Funds, and the Creation of the Guaranteed Student Loan Program

Britain Hopkins contributes to understandings of the origins of the student loan industry and student loan indebtedness in the United States. The article highlights how private organizations and actors worked with the Johnson and Nixon administrations to establish student loans as a primary means of funding higher education. These private-federal partnerships increasingly sought to commodify student loans on financial markets, thereby tethering access to higher education to previously excluded groups to market incorporation.

Exposing the Masculinist Narrative in Federal Antislavery Law: A History of U.S. v. Tony Booker (1980)

American antislavery law long denied the problem of sexual assault in slavery. Karin Zipf extends the historiography of American slavery in an analysis of late twentieth-century farm worker slavery cases. Zipf examines the testimonies of male and female farm workers to expose the masculinist narrative in federal antislavery law. Zipf demonstrates the law’s gendered limitations in its masculinist meanings of migrant slavery violence, insensitivity to women’s fieldwork experiences, and subliminal endorsement of racist stereotypes of Black women.

Roberts on the Concept of Forced Labor

Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has posted The Historical Development of the Concept of Forced Labor and the Open Boundaries of its Definition Today, which appears in the New Mexico Law Review:

This article considers the steps taken on the international level in the 1920s and 30s to define the terms through which freedom and unfreedom in the context of labor might be understood, the manner in which understandings of forced labor have subsequently evolved, and the parameters and potentials of the concept today. The first section explores the history of the 1926 Slavery Convention; the nature of coercive labor in colonized states in the inter-war period; the drafting processes and coverage of the 1930 Forced Labour Convention; the Convention’s accompanying recommendations; and subsequent developments in the legal definition of forced labor. The second section considers various different areas in which the boundaries of the concept of forced labor are open-ended today, with an eye to determining whether the concept is capable of addressing hitherto under-recognized forms of labor coercion, or whether it is fatally limited by the conditions of its formation. In particular, the section considers areas of explicit limitation; the potential contained within the terms of the Forced Labour (Indirect Compulsion) Recommendation; and what potential there is for forced labor to be deployed relative to an issue not intensively addressed in 1930, that of debt. This article concludes that, despite the limitations that have accompanied the idea of forced labor to date, the concept remains a useful one, the boundaries of which maintain extensive space for expansion.

--Dan Ernst

AJLH 63:2

The American Journal of Legal History has published its 63:2 (June 2023) issue.  It is devoted to the symposium "Status in Ancient and Medieval Law."

Status in Ancient and Medieval Law: Introduction
Timothy Lubin

Empire, Status, and the Law
Clifford Ando

Metics and Freedmen: Conflicts of Social and Juridical Status in the Classical and Hellenistic Greek World
Elizabeth A Meyer

Religious Endowments in Ancient India and the Institutionalization of Brahmin Caste Status
Timothy Lubin

Belief as Status: Premodern Islamic Law, Duties, and the Martyr Conundrum
Adnan A Zulfiqar

The Matter of Personae in Medieval Italy
Melissa Vise

‘Our Practice Has a Superiority:’ Debt Enforcement, Bills of Exchange, and Credit in Eighteenth-Century Glasgow
Hunter Harris

Book Reviews

Eric L Muller, Lawyer, Jailer, Ally, Foe: Complicity and Conscience in America’s World War II Concentration Camps
Gabriel J Chin

Brent Salter, Negotiating Copyright in the American Theatre: 1856–1951
Oren Bracha

 --Dan Ernst

Walsh on the Assignment of Choses in Action in England and Australia

Xavier P. Walsh, a recent honors graduate of Sydney Law School and, more recently, Tipstaff in the Equity Division of the Supreme Court of New South Wales, has posted Voluntary Assignments of Legal Choses in Action in England and Australia After the Judicature Act 1873, which appears in the Journal of Equity 17 (2023): 59:

The assignment of debts and other legal choses in action is commonplace. The required formalities for a voluntary equitable assignment, before and after the introduction of the Judicature Act 1873, however, have long been the subject of controversy. This article seeks to ascertain why England and Australia have apparently diverged in relation to the required formalities for voluntary equitable assignments of debts and other legal choses in action. This aim necessitates consideration of the principles relevant to voluntary equitable assignments prior to the introduction of the Judicature Act 1873. Consequently, this article will seek to establish that a voluntary equitable assignment may be effected orally in England, whereas signed writing is necessary in Australia today. After demonstrating that English and Australian law currently differ on this point, this article will attempt to explain why these jurisdictions have diverged, by reference to what is different about the English understanding of the law relating to voluntary assignments of debts and other legal choses in action.

--Dan Ernst

Telfer and Torrie on the Saskatchewan Moratorium Act

Thomas G. W. Telfer, Western University Faculty of Law, and Virginia Torrie, Affiliated Researcher, Desautels Centre for Private Enterprise and the Law, University of Manitoba Faculty of Law, have posted Debt Postponement, Debtor Protection, and Creditor Interests: The Role of the Saskatchewan Moratorium Act Reference Case in Reinforcing the Bankruptcy and Insolvency Power, which appears in the Saskatchewan Law Review (2023) 86.1 SLR 41-82:

Canada’s prairie provinces have long attempted to secure the economic fortunes of their residents by enacting legislation to restrict the enforcement of debt. Provincial efforts to restrict creditor collection actions date back to the Financial Crisis in 1914 and extended through the Dust Bowl and Great Depression of the 1930s, and into the early 1940s. Saskatchewan enacted its first such statute in 1914, but by 1929 it had followed Alberta’s lead and created a comprehensive scheme of debt relief with its Debt Adjustment Act. In 1941, Alberta’s Debt Adjustment Act was declared ultra vires by the Supreme Court of Canada. The ruling cast doubt on the validity Saskatchewan’s Act by implication. Saskatchewan responded by repealing its Debt Adjustment Act and enacting the Moratorium Act in 1943. However, the province’s constitutional problems did not end there. In 1955 it referred the validity of its newest Moratorium Act to the Saskatchewan Court of Appeal, and on appeal the Supreme Court of Canada declared that the statute ultra vires for trenching on the federal government’s jurisdiction over bankruptcy and insolvency. The decision continued the trend of expanding the bankruptcy power and was influential for clarifying the broad scope of this federal power, articulating clear definitions of bankruptcy and insolvency, and acknowledging the stigma of bankruptcy and the dual policy goals of social and economic rehabilitation. This paper argues that the Moratorium Act Reference case is a landmark decision, for affirming that debt adjustment legislation is exclusively within the scope of federal bankruptcy and insolvency law, and the enduring influence of Justice Rand’s judgment on the further development of the modern Canadian bankruptcy and insolvency system.

--Dan Ernst

Telfer and Torrie Discuss "Debt and Federalism"

[We have the following announcement of Four landmark cases in bankruptcy and insolvency law in Canada, an episode in Witness to Yesterday, the podcast series of the Champlain Society.  DRE.]

In this podcast episode, Nicole O’Byrne talks to Thomas Telfer and

Virginia Torrie about their co-authored book Debt and Federalism: Landmark Cases in Canadian Bankruptcy and Insolvency Law, 1894–1937 published as part of the Landmark Cases and Canadian Law Series by the University of British Columbia Press in 2021.

Despite having been enshrined in the constitution since confederation, Canadian bankruptcy law eludes straightforward interpretation. Debt and Federalism traces the shifting meanings of the bankruptcy power through four landmark cases in Canadian legal history: the Voluntary Assignments (1894), Royal Bank of Canada vs. Larue (1928), the Companies’ Creditors Arrangement Act Reference (1934), and the Farmers’ Creditors Arrangement Act Reference (1937). Drawing on archival and legal sources, Thomas Telfer and Virginia Torrie demonstrate how the legal changes introduced by these decisions formed the foundation of modern insolvency law in Canada.

Virginia Torrie is the Editor-in-Chief of the Banking and Finance Law Review. She is a former associate professor at the Faculty of Law, University of Manitoba where she taught bankruptcy and insolvency, and Canadian legal history. She is the author of Reinventing Bankruptcy Law: A History of the Companies' Creditors Arrangement Act. Dr. Torrie holds JD and LLM degrees from Osgood Hall Law School, and a PhD from the University of Kent.

Thomas Telfer is a professor of law at Western University. His teaching and research interests include bankruptcy law, commercial law, and legal history. He is the author of Ruin and Redemption: The Struggle for a Canadian Bankruptcy Law, 1867-1919 and was the co-editor-in-chief of the Canadian Business Law Journal from 2018 to 2022. He was a teaching fellow at the Centre for Teaching and Learning at Western, where he developed a course called Mindfulness and the Legal Profession, as well as developing other mental wellness initiatives for law students and lawyers.

Torrie on Depression-Era Canadian Farm Debt Relief

[I have previously copped to a poorly hidden imperialist motive in my interest in comparative history, my tendency to value of a nation’s history principally as an instructive contrast to the case of the United States.  Can you blame me for succumbing to it again when I learned of the following paper, just days before I teach John Fliter and Derek Hoff’s book on Blaisdell?]

Virginia Torrie, University of Manitoba, has posted Saving the Farm: A Comparative Analysis of the Farmers' Creditors Arrangement Act in Manitoba and Ontario, which is forthcoming in the Manitoba Law Journal:

The Great Depression and Dust Bowl of the 1930s caused great hardship for many Canadian farmers, especially in the prairie provinces. In response to falling prices and crop yields, as well as increasing debt levels, Parliament enacted the Farmers’ Creditors Arrangement Act (FCAA). The mandate of the bold, new statute was to keep farmers on the land by reducing and rescheduling debts to suit the productive value of the farmland and the capacity of the farmer to pay. There is little academic scholarship that examines the FCAA and how it functioned in practice. This article builds on an earlier pilot study of FCAA case files in two Manitoba counties, and widens the empirical lens to consider applications from several more Manitoba counties as well as two Ontario counties. It offers the first analysis of how the FCAA operated in Ontario, employing both quantitative and qualitative data to provide a rich commentary, using examples of actual farmers. The analysis reveals that the application of the FCAA was strongly influenced by local, county-level factors. Rather surprisingly, there were few factors that can be attributed to differences between the two provinces more generally, notwithstanding the fact that there are notable variations in farming practices, operations and conditions in Ontario, a non-prairie province, and Manitoba, a prairie province. A secondary finding is that, in general, the compromises formulated under the FCAA were highly tailored to the individual farmer’s circumstances. However, there were nevertheless pockets of case files where a fairly uniform approach was used to resolve the financial hardship of farmers who were, seemingly, all in quite similar circumstances. Accordingly, the picture that emerges is complex. FCAA practice evinces stark contrasts – generating compromises which could be either bespoke or boilerplate – and limiting the extent to which one can generalize based on the empirical data from individual counties or regions.

–Dan Ernst

Swain and Fairweather on Usury Law in New South Wales

Warren Swain and Karen Fairweather, University of Auckland, have posted To Your Marrowbones All: Loan Transactions and the Law in 19th Century New South Wales:

Economic growth in the early Australian colony was fuelled by credit. The boom ended in a slump in the 1840s. By this time questions had started to be raised about how credit should be regulated in the colony. In England, the prohibitions on usury which governed loan transactions were not completely abolished until 1854. The application of the English usury laws in the colony was controversial. Some favoured regulating interest rates whilst others saw it as likely to discourage investment. Usury provides a good example of a wider debate about the extent to which English law ought to apply in the different conditions of the early colony of New South Wales.

--Dan Ernst

Kadens on Twyne's Case

Take it from me, folks: the research underpinning this transporting case study of debt in early modern England is astonishing.  Emily Kadens, Northwestern University School of Law, has posted New Light on Twyne's Case, which appears in American Bankruptcy Law Journal 94 (2020): 1-84:

Edward Coke (NYPL)

Twyne's Case, a 1602 English Star Chamber decision, is one of the most durable decisions of the American common law tradition. The case famously concerns fraudulent conveyance, which occurs when a debtor transfers some or all of his assets to a third party with the intent to "hinder, delay, or defraud" the debtor’s creditors. The case continues to provide judges with a test to evaluate when a transfer, even one made for good consideration, was done with the intent to defraud.

The opinion, as reported by Edward Coke, is still regularly cited in US courts. However, it turns out that the the facts that Coke reported, and the embellishments that have grown up around it, are not accurate. (Teaser: the case was not about sheep.) This article uses previously unknown trial documents to retell the complex and surprising story behind Twyne's Case. In so doing, it also opens for further study the role, within the larger premodern credit economy, of transfers of title without transfers of possession—conveyances that have, since 1571, often been declared fraudulent.

--Dan Ernst

American Predatory Lending and the Global Financial Crisis

American Predatory Lending and the Global Financial Crisis, a website with data visualizations, oral histories, and policy analyses, is now live, under the rubric of the Bass Connections project within Duke University.  It is the creation of a multidisciplinary team, including fifteen Duke and two University of North Carolina students under the leadership of Edward Balleisen, Professor of History and Public Policy andVice Provost for Interdisciplinary Studies; Lee Reiners, Director of the Global Financial Markets Center at Duke Law School; Joseph Smith, former North Carolina Commissioner of Banks, and Debbie Goldstein, Director of the Duke North Carolina Forum.

--Dan Ernst

Boyd, Ramsay and Ali on Imprisonment for Debt in Colonial Victoria

Jodie Boyd, RMIT University, and Ian Ramsay and Paul Ali, Melbourne Law School, have posted "Contrary to the Spirit of the Age": Imprisonment for Debt in Colonial Victoria, 1857–90, which appears in the Melbourne University Law Review 42 (2019): 737-779:

The reintroduction in 1857 of imprisonment for debt in colonial Victoria flew in the face of international momentum for its abolition. In its criminalisation of debt and poverty, the Fellows Act 1857 (Vic) (21 Vict, No 29) also defied the rapid advancement of democratic and egalitarian principles in the fledgling colony. Frequently referred to as ‘gross class legislation’, the law was used unabashedly to target poor small debtors, leaving ‘mercantile men’ with significant debt untroubled by the prospect of a debtors’ gaol. Despite consistent and broad opposition to the Fellows Act, its advocates resisted repeated attempts to abolish or meaningfully amend it. It is argued here that the law, and its survival against the ‘spirit of the age’, can be understood as part of a broader story of conservative resistance to the democratic innovations that threatened the power of the Victorian mercantilist establishment.

--Dan Ernst

Thank You, Anne Fleming

We wanted to thank Anne Fleming, Georgetown Law, for guestblogging on LHB this month and to collect her interesting and thought-provoking posts on the challenges of writing City of Debtors.  In addition to our welcome, the posts were:

The Challenge of Writing for Two Audiences
One Way to Write for Two Audiences
Balancing Narrative and Analysis
The Meanings of Presentism
Policy-Relevant History

Muir on Debt in 18th-c. Nova Scotia

This past fall, James Muir, University of Alberta, published Law, Debt, and Merchant Power: The Civil Courts of 18th Century Halifax with the University of Toronto Press. From the publisher:

In the early history of Halifax (1749-1766), debt litigation was extremely common. People from all classes frequently used litigation and its use in private matters was higher than almost all places in the British Empire in the 18th century.

In Law, Debt, and Merchant Power, James Muir offers an extensive analysis of the civil cases of the time as well as the reasons behind their frequency. Muir’s lively and detailed account of the individuals involved in litigation reveals a paradoxical society where debtors were also debt-collectors. Law, Debt, and Merchant Power demonstrates how important the law was for people in their business affairs and how they shaped it for their own ends.

Praise for the book:

"This book is admirably accurate about the ways the law actually worked in practice, and refreshingly careful to avoid anachronism and over-reach. Muir demonstrates an impressive knowledge of eighteenth-century judicial procedures, and he offers a persuasive analysis of colonial legal culture." -Jerry Bannister

"Law, Debt, and Merchant Power is a path breaking analysis of how civil law was used in Halifax, Nova Scotia. Muir’s meticulous analysis of civil suits illustrates how important the law was and how bourgeois merchants shaped the administration of law to their needs." -Elizabeth Mancke

“At the higher methodological level, the work both fascinates and provokes… Muir’s book is an interesting, original, and important work, part of the new wave of regional scholarship that integrates greater Nova Scotia into the history of the eighteenth-century British Atlantic.” -Barry Cahill

Full information is available here.