Grewel, Reddy and Shah on Administrative Law and the Making of the CPI

David Singh Grewal, Sanjay G. Reddy, and Sarang A. Shah have published The Hidden Politics of ‘Affordability’: Administrative Law and the Making of the Consumer Price Index in the Stanford Law & Policy Review:

Perhaps no issue has greater political salience in the United States today than “affordability.” Yet the task of constructing official measures of the cost of living is widely understood to be a neutral, technocratic endeavor. The choices involved—which goods to include and how to weight them, how to account for regional variation, which administrative and business data to use—are seen as difficult yet tractable operational questions. For much of the twentieth century, however, cost-of-living measures were the subject of ongoing conflicts between capital and labor and were understood to require contestable normative judgments. By examining the historical development of the most widely used price index, the Consumer Price Index (CPI), we show how this older understanding shifted under the pressure of new kinds of economic expertise as well as changes in administrative law and procedures. Cost-of-living measures were claimed increasingly to be constructed according to neutral or objective standards, with professional economists playing a key role in devising and legitimating them. This new, more sophisticated approach, which was favored by big business, obscured the unavoidably discretionary aspects of price-index construction, and in particular the need for a price index to be underpinned by appropriate normative judgments. As a result, most recent revisions to the CPI have failed to realize its original aim: to capture changes in the requirements for living in “decency and health.” Identifying this shift in the construction of price indexes sheds light on several historical and contemporary controversies concerning inflation, wages, and changing living standards, as well as how changes in administrative law and the judicial review of agency decision-making pushed officials toward these more ostensibly neutral measures, thus laying the groundwork for this historical transformation in the CPI. This diagnosis thus suggests a better way forward: policy changes to restore a proper normative grounding to the CPI to redress its current limitations in capturing “affordability.”

--Dan Ernst

Guerra-Pujol on Two Views of Miller v. Schoene

Property teachers take note: F. E. Guerra-Pujol, University of Central Florida and the Pontifical Catholic University of Puerto Rico, has posted Buchanan v. Samuels: The Cedar Rust Case Redux:

One of the most fascinating sessions at the 2025 meeting of the History of Economics Society (HES) was a roundtable on “The 50th anniversary of the Buchanan-Samuels Exchange.” As it happens, this intellectual exchange was motivated by an old takings case—Miller v. Schoene, decided in 1928—and takings law is one of my areas of expertise. The remainder of my paper reframes the Buchanan-Samuels exchange as a three-act drama and is thus organized as follows: Act I sets the stage of our story by revisiting the dispute in Miller v. Schoene. Next, Act II compares and contrasts Samuels’s framing of this case with Buchanan’s alternate framing. For Samuels, in brief, Miller v. Schoene is a textbook case of reciprocal harms, while for Buchanan, this case is about the sanctity of property rights. Lastly, Act III concludes with the climax and Buchanan’s denouement.

--Dan Ernst 

Claussen and Meyer on the Foreign Commerce Power

Kathleen Claussen, Georgetown Law, and Timothy Meyer, Duke Law, have published The Foreign Commerce Power in the California Law Review:

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a “trader in chief” that circumvent the Constitution’s allocation of power. These matters have reached a tipping point over the last decade, prompting a series of high-profile cases in which the government has argued that this general foreign affairs power includes some portion of the foreign commerce power. To correct this misapprehension, this Article undertakes a novel examination of Founding-era materials, including the distribution of commercial authority between the king and parliament in eighteenth-century Britain, the correspondence and deliberations of the Framers, and the Founding Generation’s implementation of the commerce power in matters of national security during the early years of the Republic. These sources reveal a consistent and deliberate understanding both that Congress’s control over foreign commerce is exclusive and that Congress’s control over commerce trumps the President’s general foreign affairs powers when the two intersect. This Article further argues that this allocation was not accidental or ancillary but central to the constitutional design.

--Dan Ernst 

Kent on the Interwar Development of American Economic Sanctions

Andrew Kent, Fordham University School of Law, has posted The Pre-History of Modern Economic Sanctions, which is forthcoming in Constitutional Commentary:

This review essay examines the historical emergence of modern economic sanctions through the lens of Professor Nicholas Mulder’s outstanding 2022 book, The Economic Weapon.  It then supplements Mulder’s account with a fuller treatment of developments in the United States between World War I and the start of World War II.  The emergence of modern sanctions depended on transformations in international and domestic law, international diplomacy, state administrative capacity, and moral and legal understandings of coercion against civilian populations.  Mulder shows that these changes took shape principally during and after World War I, and focuses his monograph on Britain, France, and the League of Nations, with some attention to the United States.  This essay supplements Mulder’s transnational history with a more detailed account of U.S. law and institutions in the first four decades of the twentieth century.  In the United States, developments during World War I and the interwar period—including the Trading with the Enemy Act, export-control measures, debates about Congress’s neutrality statutes and the merits of using American economic coercion against fascist and expansionist powers, and a growing acceptance of broad executive discretion in foreign affairs—worked together to help create a rudimentary but recognizably modern sanctions regime by the time the United States entered World War II.  The essay highlights the U.S. constitutional questions raised by these developments, including questions about the nondelegation principle, the scope of presidential power and Congress’s foreign and interstate commerce powers, and protections for individual constitutional rights. 

--Dan Ernst 

den Hollander's "Court, Credit, and Capital"

Maurits den Hollander, Tilburg University, has published Court, Credit, and Capital: Amsterdam's Insolvency Legislation in the Dutch Golden Age (Cambridge University Press).  It appears in Studies in Legal History, a book series sponsored by the American Society for Legal History.

Seventeenth-century Amsterdam was a city of innovations. Explosive economic growth, the expansion of overseas trade, and a high level of religious tolerance sparked great institutional, socioeconomic and legal changes, a period generally known as "the Dutch Golden Age." In this book, Maurits den Hollander discusses how insolvency legislation contributed to the rise of a modern commercial order in seventeenth-century Amsterdam. He analyzes the procedure and principles behind Amsterdam's specialized insolvency court (the Desolate Boedelskamer, 1643) from a theoretical perspective as well as through the eyes of citizens whose businesses failed. The Amsterdam authorities created a regulatory environment which solved insolvency more leniently, and thus economically more efficiently, than in previous times or places. Moving beyond the traditional view of insolvency as a moral failure and the debtor as a criminal, the Amsterdam court recognized that business failure was often beyond the insolvent's personal control, and helped restore trust and credit among creditors and debtors.

Here are some encomia:

"Amsterdam's ‘golden age' has long fascinated economic historians. They have undertaken close studies of its unique organizations, e.g., the Wisselbank and the Vereenigde Oostindische Compagnie, in an attempt to explain the tremendous growth and vitality of the city and its surrounding region. Maurits den Hollander's important study of Amsterdam's Desolate Boedelskamer makes a significant contribution to this literature. By documenting how a specialized legal organization could alter the resolution of insolvency cases, promoting composition rather than dissolution and therewith engendering trust rather than conflict, it raises profound questions about the function of economic institutions. This book should be required reading for scholars in the field."

Thomas Max Safley, Professor Emeritus of History, University of Pennsylvania

"This book is simply superb. Den Hollander offers a study of insolvency in the booming Dutch economy of the seventeenth century that is both a first-rate piece of socio-economic analysis and a consummate exercise in social history."

James Q. Whitman, Yale Law School

Ramseyer on the Ainu as Case Study of Economic Performance and the Colonized

J. Mark Ramseyer, Harvard Law School, has posted When Economic Performance Turns on the Colonized Rather than the Colonist:

Acemoglu, Johnson & Robinson posit that colonizing countries promoted growth in places where their citizens planned to live by introducing rational economic and legal institutions. By contrast, where they faced high mortality rates, they introduced only "extractive" institutions. They took what they could and left. The former places thrived; the latter failed. Disproportionately, Acemoglu, et al.'s countries with high settler mortality rates were places that had only recently made the transition from hunter-gatherer economies to settled agriculture, if they had made it at all. Unlike agriculturalists, hunter-gatherers generally lack any sense of private ownership over the most obvious capital asset-land. Not owning that capital asset, they have little reason to defer gratification and invest in it. And for the most part, they relentlessly fight each other over resources and women. With no tradition of capital ownership or long-term investments but with chronic and lethal violence, most hunter-gatherers would not have been able effectively to exploit rational legal institutions anyway. I illustrate (only illustrate; I do not claim to prove) this intuition with the example of the Japanese Ainu. As of the mid-19th century, most Japanese lived either in settled agricultural communities or in booming commercial cities. The hunter-gatherer Ainu, however, lived in the northern-most island of Hokkaido. When the Japanese government introduced western legal institutions at the turn of the century, it applied the new rules both to the agricultural and commercial regions outside of Hokkaido and to the hunter-gatherer communities within Hokkaido. Over most of Japan, men and women quickly learned to exploit the opportunities presented by the new legal system. In Hokkaido, the Ainu failed to do any of that. In time, they simply intermarried with the other Japanese and disappeared. The innovation and investment that would eventually transform Hokkaido came instead with immigrants from the rest of Japan. 

--Dan Ernst

Quinn on Female Shareholding in the Middlesex Canal

Brian JM Quinn, Boston College Law School, has posted Economic Lives of Women: Shareholding by Women in the Middlesex Canal Corporation, 1793-1859:

Middlesex Canal (LC)

This Article explores the participation of women as shareholders in early American corporations, focusing on the Middlesex Canal Corporation. Corporate records reveal that many women, including many women in elite economic and political circles, became shareholders of the Canal Corporation. During the early Republic, the corporate form, as well as corporate equity securities, were still relatively uncommon. The Middlesex Canal Corporation was one of the earliest, and most high-profile, business corporations at the time of its incorporation in 1793. With the subsequent development of the modern corporate form came the proliferation of corporate equity securities. The creation of corporate equity securities generated passive income earning opportunities that permitted elite women to remain economically active and independent in ways that were previously impossible. Thus, the Middlesex Canal Corporation marks an important, but understated, milestone in the economic lives of women in the United States. This Article uses historical corporate records to tell the stories of the first women shareholders of the Middlesex Canal Corporation and the beginnings of financialization of the American economy. 

--Dan Ernst 

Bainbridge on NY's Act to Encourage Privateering

Stephen M. Bainbridge, UCLA School of Law, has posted The Law and Economics of An Act to Encourage Privateering Associations:

New York Colonial Privateers (NYPL)

This article examines New York's 1814 Act to Encourage Privateering Associations, the second general incorporation statute in U.S. history and a unique example of early industrial policy designed to facilitate private maritime warfare. The article situates the 1814 Act within the broader context of the War of 1812, examining the costs, risks, and organizational challenges that made both the privateering business and incorporation of that business attractive to potential investors. This early experiment in using incorporation to advance public policy objectives through private initiative offers valuable insights into both the historical development of American corporate law and the relationship between legal innovation and economic development in the early Republic.

Through detailed analysis of the Act's provisions and historical context, this study advances three principal arguments. First, it demonstrates that early general incorporation statutes functioned as deliberate instruments of industrial policy rather than neutral procedural mechanisms, with the 1814 Act representing a novel state effort to harness private capital for national defense. Second, it provides insight into the contested evolution of essential corporate attributes by analyzing which features of the modern corporation the Act provided and which it omitted, contributing to ongoing scholarly debates about the truly indispensable characteristics of the corporate form. The statute's design reveals contemporary understanding of how corporate privileges could encourage high-risk entrepreneurial ventures by providing limited liability, centralized management, and rudimentary asset partitioning. Third, it offers a case study of how economic necessity can drive the functional development of corporate features—particularly asset partitioning and limited liability—even when formal legal architecture remains incomplete.

Professor Bainbridge discusses the paper in this blog post.

–Dan Ernst

Brooks on Stock Dividends and the Crash of 1929

John R. Brooks, Fordham University School of Law, has posted Stock Dividends, the Supreme Court, and the Great Crash of 1929:

"Stock dividends"—the distribution of a corporation's own stock to its shareholders—are a relatively minor and harmless feature of corporate finance today used almost exclusively to accomplish stock splits. But for a brief period in the 1920s, they were an important part of the corporate and investing world—and, as this Article shows, were also one of major tools used to create phantom income, inflate earnings, and maintain corporate pyramid schemes leading to the 1929 stock market bubble and subsequent Great Crash. This Article also argues that this abuse of stock dividends was a direct result of a notorious Supreme Court tax case in 1920, Eisner v. Macomber. By allowing stock dividends to be issued tax-free, the Supreme Court supercharged the use of stock dividends over the next decade, helping to drive up stock valuations and fuel the 1929 bubble. Macomber has faced substantial criticism for its destabilizing effects on the tax system, but its destabilizing effects on the larger financial system have not been noted before now. Using original archival research, this Article describes the example of Samuel Insull and his public utility holding company empire—one of the nation's largest in the 1920s, but which collapsed in scandal and bankruptcy in 1932, in large part due to its manufacture of phantom income using stock dividends.

Samuel Insull (William L. Koehne Studio)

In addition to providing a new account of one of the causes of the Great Crash, a new part of the story of Samuel Insull, and a new critique of Macomber, this Article also illustrates three larger themes. First, that seemingly technical matters—in this case, the tax and accounting treatments of a relatively obscure element of corporate finance—have the potential for massive real-world impact. Second, that because of that potential impact, legal conclusions about such technical matters ought to take account of social and economic realities, not merely legal formalisms. In Macomber, the Court departed from the social understanding and past tax treatment of stock dividends based on the narrow application of a particular phrasing for a definition of “income,” and that error led in part to the 1929 bubble. Finally, this Article also describes a period of confusion, contradiction, and flux around the tax and accounting treatment of stock dividends, and to a degree both Macomber and the Great Crash also flow out of that chaos. This episode is thus an illustration of the risk and unpredictability that exists in periods of legal and economic change, such as the coinciding emergence of large corporate capitalism and a new regime of income taxation in the early 20th century.

--Dan Ernst

Desierto et al. on the Political Economy of Magna Carta

Desiree Desierto and Mark Koyama (George Mason University) and Jacob Hall (University of Pennsylvania) have posted Magna Carta:

King John Granting Magna Charta (NYPL)

Magna Carta, a pivotal moment in history, institutionalized constraints on royal power. We model it as an optimal agreement between two coalitions capable of violence: the king’s loyalists and the rebel barons. This agreement is more likely when the king extracts large rents; the distribution of rents among barons is egalitarian; and barons have large resources that are non-appropriable by the king. Under these conditions, even the baron that enjoys the largest rents would be willing to lead a rebel coalition that has sufficient resources to defeat the loyalists. We test predictions with data on the universe of barons in England between 1200-1270.

--Dan Ernst

Heath on Chinese Boycotts

J. Benton Heath, Temple University Beasley School of Law, has posted Economic Sanctions as Legal Ordering:

This Article recovers a critical episode in the history of economic sanctions and considers its implications for world order today. Beginning in 1905, Chinese citizens launched a series of protests targeting American, British, and Japanese goods. These boycotts caused economic damage, disrupted international relations, and at times won significant political victories. At the same time, they captured the imaginations of peace advocates, lawyers, and scholars, who saw in the boycotts either a fundamental threat to legal ordering, a promising avenue for enforcing interstate peace, or, most radically, an engine for new kinds of political organization outside the typical forms of state and empire.

This Article argues that the debates over the early twentieth-century Chinese boycotts invite us to rethink the relationship between economic sanctions and legal ordering. Through historical and theoretical work, the Article demonstrates that boycotts were understood at the time as a form of insurgent legal ordering, which threatened the unity of the state-based legal system. Drawing on the history of the boycotts, this Article develops a theory of insurgent legal ordering. And it shows how lawyers of the period developed a response to this perceived threat that required states to centralize and control the means of economic warfare. The result not only sheds light on the history of economic sanctions, but also suggests a broader critique of the role of economic sanctions in the international legal order today.

--Dan Ernst

CFP: Neoliberalism and Capitalism as Keywords in Contemporary History Conference

We have the following CFP, via the LPE Blog:

The Law and Political Economy Project is thrilled to cosponsor the Neoliberalism and Capitalism as Keywords in Contemporary History Conference which will take place at Yale University, February 23-25, 2024. The keynote speakers will be Isabella Weber (Associate Professor of Economics at UMass Amherst, author of How China Escaped Shock Therapy) and David Edgerton (Hans Rausing Professor of the History of Science and Technology at King’s College London, author of The Rise and Fall of the British Nation).

Call for Papers: Historians have made ‘neoliberalism’ and ‘capitalism’ two of the most powerful keywords as they describe and account for the recent past’s distinctive features and pathologies. Ambiguities exist however around what the concepts usefully name; how these phenomena relate to each other; and which agencies, processes, periodizations and geographies the concepts call on us to emphasize.

This conference engages these keywords of contemporary history, which have borne upon historians in one of their most important modes of speaking to their present: using historical methods to illuminate and account for the recent past’s most urgent or distinguishing features. We invite scholars at all stages of their careers to submit paper proposals which engage any of the following questions:

• How and why did these concepts, rather than others, become such powerful keywords to describe the recent past and its pathologies?
• Why have scholars found it so difficult to agree on what ‘neoliberalism’ and ‘capitalism’ name?
• In the project of describing and accounting for the recent past in historical perspective, what different assumptions and investments make ‘neoliberalism’ and ‘capitalism’ appear as complementary concepts for some scholars, and rival concepts for others?
• How do different definitions of neoliberalism, capitalism, and their relationship help or hinder historical investigations into pressing issues of our present, including but not limited to climate change, right-wing resurgence, economic crisis, and geopolitical disorder? Do these concepts still serve us adequately as keywords in this task?
• How and why have the keywords ‘neoliberalism’ and ‘capitalism’ led different literatures to address similar explananda through such different agencies, processes, periodizations and geographies?
• How might we usefully bring into conversation the distinct literatures which the concepts of ‘neoliberalism’ and ‘capitalism’ have shaped?
• The organizers would like to thank the MacMillan Center, the Law and Political Economy Project, the Brady-Johnson Program in Grand Strategy, and Yale’s History Department for their support.

TO APPLY: Please submit a 350 word abstract and a one-page CV to neocapconference@elilists.yale.edu by 24 October 2023. Please include your name in the email subject header. Participants will be notified of their acceptance by 7 November 2023. Presenters will be expected to pre-circulate a paper of between ~2,000 and 4,000 words to their co-panelists by 9 February 2024. Some travel assistance may be available; please indicate in your application if you would like to apply. Preference will be given to underrepresented scholars who lack other sources of institutional funding.

-- Karen Tani

Merges's "American Patent Law"

Robert P. Merges, University of California, Berkeley, has published American Patent Law: A Business and Economic History (Cambridge University Press):

Students and established scholars of intellectual property law often look for historical context when trying to understand the development and present-day contours of IP rules and systems. American Patent Law supplies this context, offering readers a comprehensive account of the evolution of the US patent system and patent doctrine beginning in 1790. From the technologies for harvesting wood and shoemaking in the earliest periods to computer software and biotechnology of the present, each chapter of the book covers the characteristic technologies of each historical era. The book also describes how businesspeople in each era acquired and enforced patents and used patents as the foundation of various business arrangements. This book is a landmark in the history of technologies, the US patent system, and the way private actors have deployed patents across American history.

Here is an endorsement:

"The product of Merges's decades of research on the patent system, this masterful study transcends the simple debate over patents as a stimulus to technological discovery and documents their role in helping ensure that inventions are put to productive use. Whatever your view of patents, you will find much that is new and intriguing in Merges's analysis of how patents have been used to obtain financing and organize enterprises to exploit promising new technologies."

Naomi R. Lamoreaux - Stanley B. Resor Professor of Economics and History, Yale University

–Dan Ernst

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

CFP: Tangier Statute Centenary Conference

[We have the following Call for Papers.  DRE.]

Tangier Statute Centenary Conference, 18 December 2023, Tangier.

On 18 December 2023 (i.e. a year from now), Willem Theus (KU Leuven – UCLouvain), Dr Michel Erpelding (University of Luxembourg), Prof Dr Francesco Tamburini (University of Pisa), Prof Dr Fouzi Rherrousse (University of Oujda), and [Geert van Calster] are organising a conference to celebrate the centenary of the Statute of Tangier, signed at Paris. Credit for kicking off the process goes to Willem.

This treaty, signed between France, Spain and the United Kingdom, and later joined by Sweden, Belgium, the Netherlands, Portugal and Italy, provided for the creation of a new legal entity: the International Zone of Tangier. Established by 1925, the Tangier Zone was formally an integral part of Morocco, but subject to a special regime that left most of its institutions under the joint administration of several Western powers. This special regime would last until Morocco’s independence in 1956, with some international elements remaining in place under a Royal Charter until 1960.

Thinking about the Zone triggers an extravaganza of thoughts on international commercial courts, conflict of laws, history of law and so much more. The call asks for papers on

The Politics of Individual Powers Towards/Within the Zone
Moroccan Attitudes and Policies Towards/Within the Zone and Its Institutions
The Interzonal and Foreign Relations of the International Zone17
Politics in the International Legislative Assembly
The Veto-Role of the Committee of Control
The Zone’s Legal System/Codes
The Operation, Case Law and Reforms of the Mixed Court
The Bar of the International Zone

Careers of Individual Lawyers/Officials/Businessmen/Intermediaries
The Tangier Banking System
The Ecclesiastical, Jewish and Sharia Courts
The Working and Case Law of the American Consular Court
The Spanish Civil War and its Impact on the Zone
The Architecture of the International Administrative Buildings of the Zone
Smugglers and the Law; and
The Legal System of the Transition Period (1956–1960)

The call and further details are available in Arabic, English, French, Italian and Spanish.

Three PhD Candidates in Legal History

[We have the following announcement from Tilburg University, via IAMEXPAT.  DRE.)

The Department of Public Law and Governance (PLG) is looking for 3 PhD Candidates who will be working within the project ‘Causal Pattern Analysis of Economic Sovereignty’ (CaPANES), which is funded by the European Research Council (ERC, ERC Consolidator Grant 2021, nr 101044356). PLG is a large, diverse and interdisciplinary department, home to nearly 100 academic staff and a range of legal and social science disciplines. You will develop and grow in research, both individually and as part of a team of ambitious scholars.

As PhD Candidate in legal history, you will analyze the historical use of sovereignty concepts in cities of commerce. The CaPANES project hypothesizes that in the early modern period cities of commerce, even within states, had foreign relations of their own and made strategic use of legal terms that defined their economic sovereignty. The CaPANES project pursues legal-historical analysis of both the domestic context of cities of commerce and of their interactions with other cities and states. The CaPANES combines qualitative and quantitative methods (social network analysis, modelling), and aims to yield conclusions that are relevant also for discussions on present-day economic sovereignty. The PhD Candidates will analyze the law, institutions and correspondence of six cities of commerce (Florence, Toulouse, Rouen, Bruges, Southampton and Lübeck). The first PhD position is concerned with Bruges and Southampton (c. 1400-c. 1520), the second PhD position with Rouen and Lübeck (c. 1450-c. 1620) and the third one with Florence and Toulouse (c. 1400-c. 1550). 20% of the appointment may be dedicated to teaching and/or administration.

CFP: "Varieties of supervision: The surveillance of banks in a long-term perspective, 19th – early 21st century"

We have the following Call for Papers:

International conference, Paris, 26-27 January 2023

Varieties of supervision: The surveillance of banks in a long-term perspective, 19th – early 21st century

Since the global financial crisis of 2008, the history of banking regulation and supervision has experienced a revival of scholarly interest. Regulation, understood as the general framework defining the rules for banking activities, has attracted more attention than the practices of supervision. Nevertheless, supervisory histories continue to multiply. Scholars have widely examined the history of banking supervision in a national perspective and in an international perspective. The field now extends to colonial areas. But this historiography of banking supervision has several shortcomings. First, the literature has devoted more attention to the supervision of banks by government authorities, which could be described as “external” control, than to forms of control exerted by the banking sector, which could be labelled “internal” control, such as inspection and audit services, accounting practices, and proprietary risk models. Further, the literature more often deals with the second half of the 20th century than with the 19th century. The conference will aim to extend the scholarship on banking supervision by examining new actors, new periods, and by scrutinizing the practices more than the rules of control. In doing so, it aims to resituate the history of banking supervision in a broader history and thereby cast new light on the concept of “regulation”.

The conference aims to explore five main research avenues:

- Why supervise banks? What have been the purposes and objectives of banking control over the last two centuries, and what have been the historical factors for its development or evolution? In particular, we can question the role of crises, which were neither necessary (United States) nor sufficient (France) for the establishment of banking supervisory systems; the embeddedness of the various forms of banking control in national political, legal, economic and social structures; the influence exerted by other countries or other economic sectors than the financial sector; the role of wars and of monetary regimes.

- Which institutions have been in charge of banking control? This research avenue raises four questions: first, that of the necessity (or not) of the formalization of control, and the degree of formalization; second, that of the arbitration between hierarchical authority and self-regulation of the banking profession; third, that of the allocation of the supervisory authority to single or multiple institutions and to the central bank; fourth, that of the internal organization of these institutions.

- Control practices. In particular, we are interested in the words, procedures and human dimension of control. For example, the conference will reflect on the organization of information systems within banking institutions and networks (including the role of technology), and on the role of accounting, whose heterogeneity and complexity have made fraud and risk difficult to prevent and assess.

- Actors and stakeholders (individual and collective, private and public). The conference will aim to widen the actors responsible for control beyond the “external” public controllers usually considered – that is to say, the authorities – to also include the actors in charge of the “internal” control (for example, in banks’ own inspection services), as well as accountants, auditing companies, bankers’ associations, and rating agencies. Who were these actors? What was their expertise? What type of control have they exercised over banks? How were they organized? What was their vision of control? Biographical and prosopographical studies, analyses of actors’ networks or discourses shedding light on the social and political conditions for the evolution of the regulatory culture, from laissez-faire to state intervention, will be particularly welcome.

- The effectiveness and efficiency of control. This question refers both to fraud and control failures (from the controllers’ point of view), and to the cost and resources of supervisory systems. This question also invites us to re-examine the objectives of control and its place in the political economy of regulation: is the aim of banking control to preserve the stability or respectability of a bank or a financial centre? To ensure the compliance with a rule? To protect a profession? Or to defend the general interest (or specific interests, like bank shareholders, noteholders, managers, or depositors)? How have these goals evolved over time?

The conference will combine approaches from different disciplines (history, economics, sociology, law, management sciences, political science) and testimonials from actors involved in banking supervision. Innovative papers, particularly those filling the historiographical gaps mentioned above (internal control; 19th and first half of the 20th centuries; biographical and prosopographical studies), will be particularly welcome. The conference will also welcome contributions adopting a comparative perspective (for instance, between countries or between banks), analyses looking at the intersection of discourses and practices, or the circulation of people and techniques. We will be particularly interested in the varieties of scales (local, national, international) and levels of analysis (micro and macro) and in case studies linking “external” and “internal” control.

The conference will be held in French and English.

Paper proposals (approximately 600 words), accompanied by a short CV, should be sent by 31 May, 2022, to:

mastinjeanluc@yahoo.fr

alexis.drach1@gmail.com

Participants will be asked to send preliminary papers (or extended abstracts) by November 2022.

Scientific committee:

Edoardo Altamura (Graduate Institute, Geneva)

Alexis Drach (University of Paris 8, IDHES UMR 8533 CNRS)

Thibaud Giddey (University of Oxford)

Michel Margairaz (University Paris 1 Panthéon-Sorbonne, IDHES UMR 8533 CNRS)

Jean-Luc Mastin (University Paris 8, IDHES UMR 8533 CNRS)

Olivier Feiertag (University Paris 1 Panthéon-Sorbonne, IDHES UMR 8533 CNRS)

Béatrice Touchelay (University of Lille, IRHiS UMR 8529 CNRS)

Sean Vanatta (University of Glasgow)

[Note: Original footnotes have been removed for ease of posting]

Weekend Roundup

• Just announced: On "Thursday, November 4, immediately before the main conference begins, the American Society for Legal History is hosting an in-person preconference event on Regulation and Administration in American Life: Legal Historical Perspectives."

• ASLH members: last call for submissions to the Projects and Proposals Committee.
  

• Over at Talking Legal History, Siobhan M. M. Barco talks with former LHB Guest Blogger Samuel Fury Childs Daly “about his J. Willard Hurst Prize winning book A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020). Daly is Assistant Professor of African and African American Studies and History at Duke University."

• 
  John Fabian Witt reviews Samuel Moyn's Humane: How the United States Abandoned Peace and Reinvented War over at Just Security and discusses it with Professor Moyn on the Digging a Hole podcast.
  

• Law schools on their recent hires of legal historians: NYU on Maggie Blackhawk and Noah Rosenblum. Iowa on Andrew Lanham.   
  

• Over at JOTWELL: Christopher Walker (Ohio State University Moritz College of Law) on Emily Bremer's "The Rediscovered Stages of Agency Adjudication"; Erin F. Delaney (Northwestern Pritzker School of Law) on Paul F. Scott, "The Privy Council and the constitutional legacies of Empire,"

• The Bristol Centre for Law and History Research welcomes Dr Andrew J. Bell, a lecturer at the University of Bristol Law School.  "His research focuses on the law of obligations, comparative law and – excitingly for us! – comparative legal history.”  More.
  

• In Custodia Legis, the blog of the Law Library of Congress, continues to offer interesting glimpses of its Herencia collection: "The Royal Order of October 1749 and the Historic Consequences of the Great Roma Round-up"; "Limpieza de Sangre: Legal Applications of the Spanish Doctrine of 'Blood Purity.'"
  

• From the Washington Post's "Made by History" section: Maia Silber (Princeton University), "The Supreme Court ended the eviction ban but not the fight against evictions"; Warren E. Milteer Jr. (University of North Carolina at Greensboro), "Voters elect representatives. But often it is politicians who pick their voters"; and more.
  

• Over at the LPEBlog, the symposium on Destin Jenkins' Bonds of Inequality continues.

• The Lilian Goldman Law Library at Yale Law School has announced a new exhibit: “Fresher, More Recent Tragedies”: Media and the Memory of the Attica Prison Uprising.

• ICYMI: Relocating the grave of a leading Tennessee lawyer (Tennessean).  “A rock star of local theater will help tell the stories of enslaved people in Prince George’s County, Maryland, who successfully filed lawsuits in the 1700s that led to their freedom” (WTOP).
  

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

Law on Progressive Regulation and Austrian Economics

Marc T. Law, an economist at the University of Vermont, has posted Understanding the Rise of Regulation during the Progressive Era: What Role for Austrian Economics?

In this essay I selectively survey the economic history literature on the rise of regulation in America during the Progressive Era with the goal of identifying how this literature is informed by Austrian economic theory, and how Austrian theory might contribute to our understanding of the origins and growth of the regulatory state. I argue that much of the literature on the origins of Progressive Era regulation is consistent with the positive aspects of Austrian economics, largely because Austrian theory overlaps with public choice theory, the analytical toolkit used by most studies of the rise of regulation. However, the normative implications of Austrian theory regarding the efficiency consequences of regulation are not always supported by the literature on the Progressive Era. I also discuss two ways in which Austrian theory might add to our understanding of the rise of regulation during this period. The first concerns the dynamics of how regulation evolves. The second concerns the role of entrepreneurship within the bureaucracy in shaping the evolution and enforcement of regulation. 

--Dan Ernst

Priest's "Credit Nation"

Claire Priest, Yale Law School, has published Credit Nation: Property Laws and Institutions in Early America (Princeton University Press):

Even before the United States became a country, laws prioritizing access to credit set colonial America apart from the rest of the world. Credit Nation examines how the drive to expand credit shaped property laws and legal institutions in the colonial and founding eras of the republic.

In this major new history of early America, Claire Priest describes how the British Parliament departed from the customary ways that English law protected land and inheritance, enacting laws for the colonies that privileged creditors by defining land and slaves as commodities available to satisfy debts. Colonial governments, in turn, created local legal institutions that enabled people to further leverage their assets to obtain credit. Priest shows how loans backed with slaves as property fueled slavery from the colonial era through the Civil War, and that increased access to credit was key to the explosive growth of capitalism in nineteenth-century America.

Credit Nation presents a new vision of American economic history, one where credit markets and liquidity were prioritized from the outset, where property rights and slaves became commodities for creditors’ claims, and where legal institutions played a critical role in the Stamp Act crisis and other political episodes of the founding period.

The YLS notice of the publication is here.

--Dan Ernst