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"