Weekend Roundup

• The Historical Society of the New York Courts has posted the podcast Litchfield Law School’s Influence on NY State Bench & Bar and a Young Nation.  Host David L. Goodwin, Society Trustee, interviews Paul DeForest Hicks. 
  

• Joseph D. Kearney, Marquette Law, and Thomas W. Merrill, Columbia Law, “discuss the shenanigans that ultimately gave the city and the state of Illinois one of its most priceless parcels of land and preserves it for public use” in a podcast on the ABA Journal’s Legal Talk Network.  They are the authors of  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).
  

• The abstracts for papers in the Asian Legal History Conference, July 24-25, are here.
  

• Congratulations to William & Mary Assistant Professor of History Brianna Nofil, the recipient of the 61st annual Allan Nevins Prize by the Society of American Historians for her dissertation, “Detention Power: Jails, Camps, and the Origins of Immigrant Incarceration, 1900-2002.”  (More.)
  

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  New online from Law and History Review and Cambridge Core: From Disestablishment to Dartmouth College v. Woodward: How Virginia's Fight over Religious Freedom Shaped the History of American Corporations, by Alyssa Penick, and Policing, Profits, and the Rise of Immigration Detention in New York's “Chinese Jails,” by Brianna Nofil.
  

• More on those indexes to those unpublished Office of Legal Counsel opinions, on Just Security.
  

• More CRT: The New Hampshire attorney general says that “teaching about the country’s history of slavery, its racist Jim Crow Laws, the Civil Rights Movement of the 1960s and the modern Black Lives Matter movement won’t violate state law even if those lessons make students uncomfortable, according to legal advice from the state Attorney General’s Office" (Concord Monitor).  
  

• And still more: Over 140 organizations, have signed onto this Joint Statement on Legislative Efforts to Restrict Education about Racism in American History, authored by American Association of University Professors, the American Historical Association, the Association of American Colleges & Universities, and PEN America. 

• From the History News Network: Ronald A. Smith (Penn State University), "How Historians Convinced SCOTUS that the NCAA's Idea of Amateurism is a Myth."
  

• We recently discovered the "Now & Then" podcast, hosted by historians Joanne Freeman (Yale University) and Heather Cox Richardson (Boston College). For a particularly relevant recent episode, checkout "Judging the Supreme Court."   

• The Law Library of Congress invites you to a webinar on federal statutes.
  

• From the Washington Post's "Made by History" section: Adam R. Shapiro, "When opponents decry critical race theory, they’re really fighting against change: the lessons of the Scopes trial for today."
  

• Fire in the White House!  At 7 PM EDT on July 28, the Elk Rapids Area Historical Society hosts a live stream of Craig G. Wright, Herbert Hoover Presidential Library and Museum, discussing the fire that gutted the West Wing and ruined the Oval Office on Christmas Eve, 1929.

• For anyone working on socio-legal history and technology: check out the new Law and Society Fellowship at the Simons Institute at Berkeley.

• ICYMI: George Thomas on America’s Imperfect Founding (The Bulwark). A notice of The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero, by Peter S. Canellos (Courier Journal). Woman suffrage and Prohibition in Iowa (Cedar Rapids Gazette).  The Buffalo-Niagara LGBTQ History Project’s first historic marker recognizes “local gay rights activist Bob Uplinger,” whose battle in an entrapment case contributed to decriminalization in New York (Buffalo Rising).
  

• Update: Colbert King on Karen Hastie Williams (WaPo).
  

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

Weekend Roundup

• From the Washington Post's "Made by History" section: Magdalene Zier (JD/PhD candidate, Stanford University) and John Fabian Witt (Yale Law School) on how, "For 100 years, the filibuster has been used to deny Black rights"; historian Rebecca DeWolf on why "2021 could finally be the moment for the Equal Rights Amendment"; Harrison Diskin (PhD candidate, University of Southern California) and Keith Pluymers (Illinois State University) on "what early American infrastructure politics can teach the Biden administration"; and more.

• Various media outlets have offered historical context for the mass shooting this past week in Georgia and the recent surge of anti-Asian harassment and violence. MSNBC ran a piece by Kevin Kruse (Princeton University) on "The Atlanta shootings, Vincent Chin and America's history of anti-Asian racism." NPR's The Takeaway spoke with Beth Lew Williams (Princeton University) about "the Deep History of Anti-Asian Violence in the U.S." History.com published an article on the 1875 Page Act.  The LA Times reminded readers of "the racist massacre that killed 10% of L.A.’s Chinese population and brought shame to the city."  
  

• Do you have thoughts on the academic letter of recommendation (LOR) system? Our blogger Mitra Sharafi and Ronit Stahl welcome your feedback here by Friday, March 26. This is for a LHB blogpost and/or a piece elsewhere.

• In the opinion pages of the New York Times, historian Gabriel Winant (University of Chicago) makes the case for better treatment of care workers and stronger government regulation of the care economy,
  

• From Environment, Law, and History: Soviet Water Law.
  

• Via Balkinization: Akhil Amar (Yale Law School) has started a podcast on "America's Constitution.

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

Bruce on Epic Systems and Labor Legal History

Stephen Bruce, a Washington, D.C. attorney, has posted Epic Errors: The Supreme Court Ignores the History of Collective Actions and Decades of Struggle to Establish 'Living Wage' Standards:

If an employer can take away the right of “acting together” from its employees and force them to proceed only “individually” to enforce rights related to their wages and other terms and conditions of employment, the employer has interfered with or restrained the “collective power of individuals” that Alexis de Tocqueville observed in Democracy in America. The Norris-LaGuardia Act of 1932, the National Labor Relations Act of 1935, and the Fair Labor Standards Act of 1938 are all New Deal era statutes – all of which are still in force today – which provide for the right of employees to proceed collectively or in concert. These statutes were the culmination of decades of struggle in workplaces and communities, state and federal legislatures, and state and federal courtrooms. Each rests on detailed Congressional findings that individual employees do not “commonly” enjoy “actual liberty of contract” or “full freedom of association” and have an “inequality in bargaining power” vis a vis the employer, and that “collective” actions to resolve disputes over the terms and conditions of employment are in the interest of employees and the public. And while it is rarely noticed today, from 1923 to 1925, the Supreme Court issued three unanimous decisions on the unconstitutionality of “compulsory arbitration,” holding that compulsory arbitration implicates the due process and liberty of contract protected by the Fourteenth Amendment, except in temporary emergencies. See, e.g., Charles Wolff Packing Co. v. Court of Indus. Rel., 267 U.S. 552, 565-66 (1925).

In Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624-25 (2018), a 5-4 majority opinion, written by the then-new Justice Neil Gorsuch, upheld compulsory arbitration agreements with “class action waivers” in three companion cases, even though the waivers clearly constituted unbargained-for restraints on the collective enforcement action provided in Section 16(b) of the Fair Labor Standards Act. All of the cases involved the right to receive overtime pay, which applies even when employees earn more than the minimum wage. In upholding the class/collective action waivers, the majority opinion in Epic displayed a near total ignorance of class and representative actions in “the old, nearly forgotten world before 1966," Elizabeth K. Spahn, “Resurrecting the Spurious Class,” 71 Geo. L.J. 119, 120 (1982). It also displayed a woeful ignorance of the history of the use of “liberty of contract” theories to block the enforcement of wage and hour standards, and Congress’ rejection of those theories in the legislative findings and declarations of policies of the New Deal legislation.

--Dan Ernst

Cummings on Lawyers and the Struggle for LA

Scott L. Cummings, UCLA Law, has published An Equal Place: Lawyers in the Struggle for Los Angeles (Oxford University Press, 2020):

An Equal Place is a monumental study of the role of lawyers in the movement to challenge economic inequality in one of America's most unequal cities: Los Angeles. Breaking with the traditional focus on national civil rights history, the book turns to the stories of contemporary lawyers, on the front lines and behind the scenes, who use law to reshape the meaning of low-wage work in the local economy.

Covering a transformative period of L.A. history, from the 1992 riots to the 2008 recession, Scott Cummings presents an unflinching account of five pivotal campaigns in which lawyers ally with local movements to challenge the abuses of garment sweatshops, the criminalization of day labor, the gentrification of downtown retail, the incursion of Wal-Mart groceries, and the misclassification of port truck drivers.

Through these campaigns, lawyers and activists define the city as a space for redefining work in vital industries transformed by deindustrialization, outsourcing, and immigration. Organizing arises outside of traditional labor law, powered by community-labor and racial justice groups using levers of local government to ultimately change the nature of labor law itself. 

Cummings shows that sophisticated legal strategy — engaging yet extending beyond courts, in which lawyers are equal partners in social movements — is an indispensable part of the effort to make L.A. a more equal place. Challenging accounts of lawyers' negative impact on movements, Cummings argues that the L.A. campaigns have achieved meaningful reform, while strengthening the position of workers in local politics, through legal innovation. Dissecting the reasons for failure alongside the conditions for success, this groundbreaking book illuminates the crucial role of lawyers in forging a new model of city-building for the twenty-first century.

--Dan Ernst

Fisk and Salter on the Law of Playwrights and Theatre Producers

Catherine Fisk, University of California, Berkeley School of Law, and Brent Salter, Stanford Law School, have posted Assumptions about Antitrust and Freelance Work and the Fragility of Labor Relations in the American Theatre, which is forthcoming in the Ohio State Law Journal:

Lee Shubert (NYPL)

As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience with freelance work. Yet the Dramatists Guild and commercial theatre producers have negotiated collectively for nearly a century under a cloud of legal uncertainty at the intersection of antitrust law and labor law that dates to the pre-New Deal era. The revival of theatre after the catastrophe of the pandemic provides an opportunity to reconsider the four longstanding but unnecessary assumptions about antitrust, labor law, and copyright law that have shaped organizational structures and mediated relations between stage producers and writers:

Assumption #1: Playwrights, unlike actors or directors, cannot unionize under the National Labor Relations Act because playwrights are independent contractors.

Assumption #2: Playwrights must have the legal status of independent contractors under federal labor law, lest they lose control of the copyrights in their work under the work for hire provisions of the 1976 Copyright Act.

Assumption #3: Unionization of playwrights is not merely unprotected by the National Labor Relations Act (see Assumption #1), but it is affirmatively prohibited by federal antitrust law.

Assumption #4: The precarious legal status of playwrights as outlined in Assumptions 1-3 is necessary to protect their creative autonomy. Whatever economic security and stability writers could attain if the Dramatists Guild were a union and if there were real collective bargaining would be at the cost of dramatists’ creative freedom, independence, and ability to prevent the rewriting of their work. In short, to be a real artist, a dramatist necessarily must run the risk of being impecunious.

This article offers a detailed history, based on previously unavailable archival sources, of the origin of these assumptions, and how writers, producers, and various intermediaries struggled to create a functional system in the face of legal doubt. The history shows why it is time to abandon the assumptions about the significance of antitrust and copyright law in structuring relations between writers and producers.

--Dan Ernst

Boris's "Making the Woman Worker" at WHS

The next meeting of the Washington History Seminar, on Monday, November 16 at 4:00 pm ET, will be devoted to Making the Woman Worker: Precarious Labor and the Fight for Global Standards, 1919-2019, by Eileen Boris, University of California, Santa Barbara.  Sonya Michel, University of Maryland, will comment.  Click here to register for the webinar or watch on the National History Center’s Facebook Page or the Wilson Center website.

Amid the unraveling of standard employment at century’s end, previously excluded home-based and domestic workers have pressed the International Labour Organization (ILO) for rights and recognition. By tracing the construction of the woman worker through ILO labor standards, leading feminist historian Eileen Boris probes paths to equality between those classified as men or women and between women globally, complicating the debate over protective labor legislation and questioning whether the new carework economy is just another name for the old dichotomy between “working women” and “mothers in the home.”

 --Dan Ernst

VanderVelde on Servitude, Capitivity, Master-Servant & the 13th Amendment

Lea VanderVelde, University of Iowa College of Law, Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment’s Labor Vision Immediately After Its Enactment, William and Mary Bill of Rights Journal 27 (2019): 1079-1112:

This Article first takes a closer look at Blackstone’s chapter on master and servant. Second, it examines the anti-subordination agenda of the Reconstruction Congress, which abolished involuntary servitude and engaged in structuring a free labor system—a republican system of labor—to replace the slave labor system and to bring the freedmen into parity with their former masters. Third, this Article looks at how the courts interpreted the Thirteenth Amendment’s scope in the years immediately after its enactment. This Part demonstrates that the federal courts effectively closed off the path to develop the Thirteenth Amendment as an economic right by limiting the universe of rights to consist of only those that were civil or social rights. This Part also demonstrates how state courts viewed the Thirteenth Amendment quite differently, and analogized more broadly or narrowly, depending upon whether the court was in a Northern free state or a former slave state. Northern states were more willing to see the Thirteenth Amendment as a broad charter of labor freedom, while former slave states read the Amendment so narrowly as to limit its scope to merely abolishing the technical, legal status of chattel slavery.

--Dan Ernst

Thelen on Employer Organization, Law & American Exceptionalism

Just out in a special issue of Law and Contemporary Problems (83:2) devoted to “The Market as a Legal Construct,” is Employer Organization and the Law: American Exceptionalism in Comparative Perspective, by Kathleen Thelen, Massachusetts Institute of Technology.  It commences:

In the literature on political economy and historical sociology, American exceptionalism has typically been framed as a question of why American labor unions appeared so weak and so conservative compared to their European counterparts. The usual answers point to American political culture, characteristics of the working class, features of American political parties or the party system, or aspects of the American state. However, by posing the question as an inquiry into what is different about American labor, scholars have overlooked the possibility that what is exceptional about the United States may have more to do with the distinctive features of American employers rather than of its unions or its working class.

This Article attempts to fill that gap by bringing a comparative perspective to bear on an underexplored aspect of American exceptionalism: the peculiar features of American employers and the legal framework regulating firm competition in which they  historically developed....

See also Masters to Managers: Historical and Comparative Perspectives on American Employers, ed. Sanford M. Jacoby (Columbia University Press, 1991).

--Dan Ernst

Max Planck Announces Two Doctoral Studentships

[We have the following announcement.  DRE]

The Max Planck Institute for European Legal History in Frankfurt is a world leader in researching the history of law in Europe and beyond. Its two research departments with more than 60 scholars, the unrivalled collections of its specialized library and its numerous national and international co-operations make it the central research hub for a global scientific community investigating the past, present and future of legal regimes.

We are now looking to recruit two Doctoral Students from 1 April 2020 or as soon as possible thereafter for the research programme ‘The History of European Union Employment Law’, under the supervision of Professors Thorsten Keiser and Stefan Vogenauer, dealing with the following topics:

(1) The History of EU Employment Law
(2) The History of Antidiscrimination in Labour Relations: France and Italy in Light of EU Law

Zietlow on Slavery, Liberty and the Right to Contract

Rebecca E. Zietlow, University of Toledo College of Law, has posted Slavery, Liberty and the Right to Contract, which is forthcoming in the Nevada Law Journal 19 (2019): 447-478:

This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all workers. Until then, the slave had been at the center of United States labor law, and the paradigm of labor law was unfree labor. The Thirteenth Amendment and other Reconstruction measures established a new paradigm: the autonomous worker with liberty of contract.

Today, liberty of contract is most often invoked by conservatives and libertarians, who argue that the right to contract entails a right to be free of government intervention. Scholars trace the Lochner libertarian right to contract to free labor ideology of the antislavery movement and the Reconstruction Era. Until now, the dominant model of liberty of contract is the individualist right to be free of government interference, embraced by the Supreme Court in Lochner v. New York. This article shows that to the contrary, the Thirteen Amendment based right to contract invites government intervention to empower workers exercising that right. The Reconstruction Congress invoked the Thirteenth Amendment as it intervened in employment contracts to protect not only their rights, but the rights of northern workers. Paradoxically, the Reconstruction Congress enacted precisely the type of regulations that the Lochner Era Court struck down as violating liberty of contract,

---Dan Ernst

Andrias on the FLSA's Forgotten Promise

Kate Andrias, University of Michigan Law School, has posted An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act, which is forthcoming in the Yale Law Journal 128 (2019): 616-709:

Wage-Hour Unit Prepares to Put FLSA into Effect (LC)

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American — in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law.

By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes — one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.

Sarkar on Bombay Factory Law

Aditya Sarkar, University of Warwick, has published Trouble at the Mill: Factory Law and the Emergence of the Labour Question in Late Nineteenth-Century Bombay with Oxford University Press. From the publisher: 

The book uses the Factory Acts of the late nineteenth century as an entry point into the early history of labor relations in India, specifically the mill industry of Bombay. It unites legal and social history in a manner which differs from most social histories of labor, and offers a new perspective on the constitution of industrial relations in colonial India.

The Factory Act passed by the Government of British India in 1881 produced the first official definition of 'factories' in modern Indian history as workplaces using steam power and regularly employing over 100 workers. It imposed certain minimal restrictions upon the freedom of employers in a limited range of industrial workplaces and invested factory workers, most explicitly children, with a slim set of immunities and entitlements. In 1891, the Factory Act was amended: factories were redefined as workplaces employing over 50 workers, the upper age limit of legal "protection" was raised, weekly holidays were established, and women mill-workers were brought within its ambit. In its own time, factory law was experienced as a minor official initiative, but it connected with some of the most potent ideological debates and political oppositions of the age.

This book takes these two pieces of labor legislation as an entry point into the history of "industrial relations" (the term did not yet exist in its present sense) in colonial India, in the last quarter of the nineteenth century combining the legal and social history which diverges from most studies of Indian workers. It identifies an emergent "factory question" built on the problem of protective labor legislation. The cotton-mill industry of Bombay, long familiar to labour historians as one of the nodal points of modern Indian capitalism, is the principal focal point of this investigation. While this is a book about law and regulation, it is neither a legislative nor a policy history. While it is preoccupied with the history of factory legislation, it does not offer a full narrative that takes this as its "object". And while the book focuses on Bombay's cotton mills, it contains significant departures both from the city and its major industry. A number of questions which have only rarely been thematized by labour historians--the ideologies of factory reform, the politics of factory commissions, the routines of factory inspection, and the earliest waves of strike action in the cotton textile industry--are raised in this book.

Table of Contents after the jump:

Legal History Workshop at Penn

Here is the Penn Legal History Workshop line-up for fall 2018:    

• September 13, 2018: Professor Michael Lobban, London School of Economics, “Martial Law, the Privy Council and The Zulu Rebellion of 1906”

• November 5, 2018: Professor Hidetaka Hirota, Waseda University, “The Genealogy of Alien Contract Labor Law"

• November 15, 2018: Professor Anna Lvovsky, Harvard Law School, “Queer Expertise: Urban Policing and the Discovery of the Gay World, 1920-1970"