Thursday, August 4, 2016

Law in the History of Capitalism: A Conference Report

[We grateful to Victoria Saker Woeste of the American Bar Foundation ( for this full report of an excellent conference.  Note especially the summary of the discussion prompted by the final panel.]

Law in the History of Capitalism:  A Conference for Ph.D. Candidates, July 27-28, 2016

The Legal History Consortium held its annual conference for advanced graduate students on July 27-28, 2016, sponsored by the American Bar Foundation and the University of Chicago Law School.  The consortium consists of members of the law school and/or history faculties at the University of Minnesota, Indiana University, University of Illinois, University of Michigan, and the University of Pennsylvania in addition to the U of C and the ABF.  Together with the American Society for Legal History, which has generously contributed annual grants, these institutions sponsor, organize, and take turns hosting the conference, whose purpose is to bring budding legal historians into conversation with senior scholars in the field and help them conceive broadly the relationships between their dissertation projects and emerging directions in the legal history literature.

This year’s theme, “Law in the History of Capitalism,” attracted a pool of 58 applicants.  Fifteen were selected to attend and present their work, with their travel costs and meals covered by the consortium.  They were joined by two students who came at their own expense, the ABF doctoral fellows and summer diversity research interns, and several area legal historians.  The intellectual lynch pin of the conference was the plenary speaker, Prof. Christine Desan of Harvard Law School.

Here is the list of presenters and discussants, with paper titles and email contacts for all the panelists, with brief descriptions of each paper:

Session I.  Corporations, Personhood, and Privacy
1.  Evelyn Atkinson, University of Chicago, “‘When Will the Mischief End?’  Corporation as Person and Citizen in 19th Century American Law.” 
Evelyn is working on a new history of corporate personhood.  Her main question is not why personhood was granted to corporations, but why the courts gave corporations substantive constitutional rights.  In her analysis of post-Civil War jurisprudence, Atkinson distinguishes between procedural and substantive due process, because the privileges and immunities clause of the 14th Amendment opened the door for corporations to assert substantive constitutional rights.

2.  Judge Glock, Rutgers University, “Private Business Records and the Origins of the Administrative Subpoena.” 

Judge argues that administrative subpoenas supply the legal and common law roots of today’s unwarranted government surveillance.  He traces the emergence of inspection powers and “visitorial powers” to English law, and identifies a change in the old common law notion of civil corporations that began with Blackstone.  He then argues that American law took the visitor concept (or a bastardized version of it) and vested it in courts and legislatures which could then investigate and regulate in the same ways as visitors did; from there, it was a short logical leap to the modern regulatory agency.

3.  Elizabeth Harmon, University of Michigan, “‘A New Species of Corporation’:  What the Legal Creation of Philanthropic Foundations can tell us about the Development of American Capitalism.”

Liz’s subject is the non-profit philanthropic foundation, which in the early 20th century was rendered a “new species” of corporation by Russell Sage and Carnegie, among others.  She interrogates how new these foundations were as legal creatures, how they related to charitable entities that came before, why they made this move when they did, and why did the federal government and states permit this to happen.  She believes that wealthy Americans purposefully shaped American political economy through the redistribution of their wealth.

Commentator:  Sarah Barringer Gordon, University of Pennsylvania
Sally Gordon began her comments by observing that the Legal History Consortium now includes a charitable foundation (which, sadly, does not boast the wealth of either Russell Sage or Carnegie).  She then noted the ways in which the three papers are in conversation with each other and supplied suggestions for amplifying the way in which they define and analyze corporations in each of their settings.  Sally advised Evelyn not to take the concept of citizenship for granted and to look at the scholarship on the erosion of the concept of national citizenship after the enactment of the 14th Amendment.  She asked Judge to explain more about the enforcement powers of agencies and how they evolved from the concept of the visitor.  For Liz, whose paper was grounded in deep archival research, Sally suggested a bit more integration of doctrine and statutory development into the story of the nonprofit foundation.

In conclusion, Sally observed that monopoly plays a prominent role in all three papers. Monopoly created value for government, which then subjected owners to scrutiny for all kinds of malfeasance, as seen in the case of the railroads, treated in all the papers.  She left us with two provocative questions and a suggestion:  how did governments regard these legal entities and how did the awarding of citizenship allow the national government to regulate corporations that, like the railroads, had already subdued the states?  The book recommendation was James Scott’s Seeing Like a State.

Session II.  Plenary Speaker
Prof. Christine Desan, Harvard University, “Making the Modern Market: Capitalism and Legal Design.”
Chris gave us a deeply theorized account of the rise of currency that began with the identification of a binary that separates the Market (marked by transactions, money, profit) from the State (politics, law, and judgment).  She described the conventional definition of capitalism as a political economy in which the market dominates the state and the commercial treatment of things prevails.  According to this approach, capitalism became a system in which people are defined by the need to make money to survive.  Her aim is to recast this story to measure not the extent of the market or critique it but to de-reify it, uncover the rise of the binary between the market and the state, and get to a new definition of capitalism.  When institutional authorities institutionalize profit, redesign the medium of exchange (money), then capitalism has arrived.  The story begins with money and ends with corporations, which interest her greatly, but she thinks it’s money that takes us to corporations, and law is at the center of this process.  Law creates idea that the market is separate from the state.  This is not a court-centered story; law as governance and the evolution of currency in all forms are her focus.  This wide-ranging, expansive lecture drew on Chris’s recent, widely praised book, Making Money: Coin, Currency, and the Coming of Capitalism (Oxford, 2015).  The ensuing discussion was spirited and engaged.

Session III.  Currency and National Debt in Comparative Perspective
1.  Mandy Cooper, Duke University, “A House of Cards: Familial Economic Networks and the State in Antebellum North Carolina.”   

Mandy told a fascinating story about familial economic networks and the state in antebellum North Carolina between 1800 and 1860.  These networks were built on the kinds of social hierarchies that structured the families themselves, yet women were central to the process of extending these networks through emotion and affective labor.  She wants to challenge the views of gender historians by bringing in politics, legal history, and bringing the history of family into the history of the state.  Men built these networks by harnessing the power of the state, and she uses the Cameron and Ruffin families as examples of clans that parlayed their access to state into agreements that shored up their own interests and built their businesses.

2.  Michael Caires, University of Virginia, “What We Owe:  Negotiating the Law of American Money in the Civil War and Reconstruction.” 
Mike is doing a revisionist history of currency regulation during the Civil War and reconstruction.  Tying to Chris’s talk from yesterday, he noted that the state, society, and market were all transformed by changes in money policy during the war.  The Legal Tender Act of 1862 had the unanticipated consequence of transforming money policy permanently.  There were two moments after Appomattox when the country had to make formative decisions; his paper gave us the second, the resorts to courts to stop greenbacks.  Supreme Court Chief Justice Chase embodied the complexity of the politics and law involved in a series of familiar cases.  Mike reads these cases to focus on such questions as how the value of money gets created?  What embodies that value:  the inherent value of gold or the face value of paper money?

3.  Felipe Cole, Northwestern University, “Latin American Debt and the Rise of Sovereign Receivership.”
Felipe compared Latin American sovereign debt to US sovereign debt, tracing how sovereign immunity was invoked in suits on these debts.  Latin American nations were the first republics to undertake public debts, early in the 19th century.  The Grand Columbian loan in 1822 for 2 million pounds was written in a swirl of confusion over whether the Columbian government’s agent had authority to make the loan in the first place. The first defaults in Latin America happened only about 10 years ahead of first U.S. defaults, so American national indebtedness was part of a global trend.  The major problem Felipe is trying to understand is that no specific body of law governed this debt at the national level and absolutely no international law existed whatsoever.  It was therefore essential for nations to figure out remedies for bondholders, and this process took until the 1870s.

Commentator:  Ajay Mehrotra, American Bar Foundation
Ajay said that all three papers are great examples of the new history of capitalism and urged all three authors to explain what is the conventional narrative and how they are challenging it.  As in the first panel, these three papers are in conversation with each other.  Mandy should focus on telling her audience more about what her contribution is, make it more explicit, explain what’s new here, what’s her innovation.  This is the “most tranquil family business I’ve ever heard of.” Where’s the family conflict?  And gender drops out of the story just when it is most relevant.  Ajay urged Mike not to place too much faith in doctrine; Chase’s mental gyrations undermine his reliance on rules per se; also, markets didn’t really care about the rules, they cared about the relationships (see, e.g., Stewart MacCauley).  And he urged Mike to look at how contemporary economists reacted to these cases and how judges read political economists at the time.  Felipe’s project is much earlier in the process than the other two, and Ajay urged him not to bury the lede (which comes on p. 13 of the paper) on the contrast between Latin America and the U.S.  Why do creditors even make these loans?  This issue gets buried but needs to be brought out (see Phillip Hoffman’s recent presidential address in the Journal of Economic History).

Session IV.  The Capitalist Transition: Trade, Technology, and Slavery

1.  Elbra David, University of California, Irvine, “Atlantic Cotton Merchants, Legal-Pluralism, and the Creation of the Lower Mississippi Valley, 1790-1820.”   

Elbra’s study focuses on the Gulf Coast immediately after the adoption of the constitution.  She notes that continued territorial acquisition meant that localities were switching sovereignties almost constantly.  By the 1790s a “strong capitalist vanguard” was in place.  Commercial trade had been practiced since earlier in the 18th century; the first slaves came around 1720.  Elbra noted that she had in fact sought to get away from slavery but found that she could not.  Slavery played a key part in the capitalist transformation of the region, and the influx of British capital at the time raised the stakes of many commercial disputes.

2.  Alicia Maggard, Brown University, “Law, Technology, and the Specter of Steam.” 
Alicia found herself captivated by a “novel form of technological death,” as she described the mayhem of steamboats, and she formed the question of how the state exerted power through the regulation of technology.  As in other industries, a sophisticated state aimed to modernize services and encourage the development of new technologies by diverting private resources for public ends.  The paper described the domestic costs of accidents, which spread with admission of new states and the expansion of government into new territories.  Alicia noted that she prefers to think of technology in traditional terms, as a machine rather than a description of the state or systems of governance, in order to keep focused on material systems.  To carry out this argument, she needs to explore more and varied sources and identify winners and losers more clearly, and she asks for help in figuring out the stakes.

3.  Aaron Hall, University of California, Berkeley, “Seeing the State’s Slaves:  ‘Public Hands,’ Internal Improvements, and the Developmental Practices of State Slavery.”   

Aaron examines the state as slaveowner and its use of slave labor for internal improvements. This practice was not unheard of; Latin American countries owned slaves too.  Georgia began buying slaves for this purpose as early as 1818, and Aaron uses this practice to show the “unseen face” of slavery and antebellum southern governance.  He argues that in aligning itself with plantation slavery, southern states embraced an extension of public power whose significance has not been recognized.  Public governance thus depended materially on slaves for achieving policy ends state legislatures defined as in the public interest.  Aaron noted that digital sources made this practice so much easier to document.

Commentator:  Barbara Welke, University of Minnesota
Barbara pointed out that all three presenters admitted, somewhat sheepishly, that their projects originated in non-scholarly discoveries, and she not only praised them for their candor but told them to embrace however they came to ask their question and find their sources.  Coming across stories, graphic illustrations, and the like is what grabs us.

The collision of the historic and the curious is embedded in a much larger set of relationships and is shaped by it; so are the states, in the style of Russian dolls that nest inside progressively larger dolls.  Barbara asked Elbra to consider how does law matter;   what role does law play in the creation of the region?  Barbara loved Alicia’s formulation of technology as a “problem and possibility for government” and urged her to connect with Matthew Axtell at Princeton, who is also working on steamboats.  Finally, Barbara urged Aaron to consider the worlds where the parties come from, in order to understand how courts make decisions in cases.

V.  Workers’ compensation and the historicization of labor
1.  Scott McDowell, University of Minnesota, “The Arithmetic of Sovereignty:  Law, Ambiguous Citizenship, and Policing for Capitalism in the Lattimer Massacre of 1897.” 
 Scott, who is just beginning his dissertation, is using the Lattimer Massacre, which he says is very deeply rooted in the historiography of capitalism, to study nineteenth-century labor protests.  He’s interested in asking what law’s relationship to violence is, particularly the kinds of violence that were important for the development of capitalism.  These relationships need to be problematized.  What does corporate indemnity for striking workers’ deaths mean in the context of immigrants?  By not paying indemnities, the federal government kept workers vulnerable, caught in an ambiguous legal situation.  And that’s what interests Scott most:  how federal concerns about sovereignty shaped these outcomes and contributed to the creation of indemnity as a capitalized asset.  “Law is an adept magician, but the magic is an illusion.”  If we start with law and pay full attention to it, then we can get below the niceties, to the muddiness at the edges, where law, capitalism and violence meet.

2.  Nate Holdren, Drake University, “Economizing Workers: Employee Injury Law and the Rhetorical Construction of Commodification in the Early 20th Century United States.”

Nate shares Scott’s interest in workers, but takes a more literal perspective: his question is how the commodification of the body became legally incorporated into modern capitalism.  He situates this inquiry in cases that attempt to place monetary value on body parts that were lost due to on-the-job injuries.  By looking at cases involving women workers, he brings gender into the story in multiple dimensions, including women’s diminished attractiveness as potential wives in the calculus surrounding the cost of injury.

3.  Gabrielle Clark, Harvard University, “Coercion and Contract at the Margins: Deportable Labor and the Laws of Employment Termination under American Capitalism, 1917-2015.”   

Gabrielle is looking at the history of the state-backed migrant labor contract as an example of the intersection of race, regulation, ethnicity, and law.  Her paper focused on the wartime period when employers did not have the right to dismiss employees under regulations promulgated by the U.S. Employment Services.  The agency, not the employer, had the power to determine if workers would be reassigned, given a new job, or (in the case of non-citizens) repatriated to their own countries.  Because of the wartime economic demand and state-backed labor contracts, the state was liable to workers for three-fourths of their labor contract, unless the workers violated some provision of that contract.  Since then, however, these kinds of rights have steadily eroded.  The federal program regulating labor markets ended in 1947, and after the termination of the bracero program in 1964, migrants lost all of their wartime-era gains.  Laws passed since then to protect migrant workers have been all but ignored.  Her ultimate intellectual goal is to recover the past to serve the present, to inform policy debates that resist resolution.
Commentator:  Laura Edwards, Duke University 
In some ways, Laura said, these presentations are hard to compare; one is a book chapter, one an article, the third a dissertation prospectus, but they come together in their critique of the new history of capitalism.  Scott’s critique is the most explicit, but Gabrielle recognizes that she needs to connect her project more fully to the legal history literature. In all papers, law and legal history are crucial to economic history; this is interesting to Laura because in the history of capitalism, the history of economic power is the history of power.  She praises the panelists for charting out a new approach, one that sees law as constitutive of capitalism, not just an instrument of it.  Law is not always a clear, identifiable thing that people use to get what they want; likewise, legal history suggests a complicated relation between power and wealth.  She urged everyone to see law as governance, to take the long view, rather than the instrumental approach.

VI.  Credit, Markets, and Regulation in the Postwar Era
1.  Daniel Platt, Brown University, “Borrowers’ Rights in the Age of Jim Crow.” 
Daniel investigates the development of debt peonage in Progressive Era legal discourse.  Although many saw the system as reproducing slavery in the south, others understood debt peonage “as the end that all market systems approached in their search for predictability and profit.”  Daniel argues that widespread debt peonage contributed to the growth of the myth of the free market.  To frame the topic, he draws on Justice Holmes’s dissent in Bailey v. Alabama, in which he sought to resist the spread of the practice, but did so in a way perceived as excessively legalistic and divorced from what the market was actually doing. If the early twentieth century was the turning point in debt finance, how was it represented in law or popular discourse?  Race and finance cannot be separated from risk, but  He didn’t find what he hoped to.  Daniel asked for feedback on how he could fit Holmes’ personal intellectual struggles into the larger legal story.

2.  Sean Vanatta, Princeton University, “Prices Are Political:  Credit Card Interest in the Age of Inflation, 1968-1980.” 
Sean began by defining three features of the political economy of finance:  state-based regulatory systems, financial institutions with limited, specialized functions, and a state-imposed regime of price controls.  In the early days of credit cards, government did not regulate banks when they published interest rates or set credit card ceilings.  Consumer and labor groups, especially the AFL-CIO and the National Consumers League, decided to lobby state and federal governments to pass legislation combating the reckless expansion of credit card lending.  These groups pushed for government to create a political economy in which safe, inexpensive credit was widely available.  Congress then passed the Truth in Lending Act to provide uniform disclosure rules that would enable consumers to make informed decisions when shopping for credit.  This paper describes the law’s implementation and the amendments added to it in response to pressure from Wisconsin and Minnesota.

3.  Erik Erlandson, University of Virginia, “Redesigning the American State: The Struggle to Manage ‘Big Government’ and the Legacy of the 1970s.” 
Erik describes his paper as a “slog through administrative procedure,” but his subject is captivating.  During the deregulation era of the 1970s and 1980s, the federal government sought to limit the reach of its own authority.  The investigative powers of such agencies as the Food and Drug Administration, the Federal Trade Commission, and the Federal Power Commission, were turned from business in general to the effects of regulation on the economy.  The 1970s brought an intensified judicial focus on procedural safeguards to protect private business from overintrusive public action.  Federal agencies began to review regulations to determine how faithfully they followed statutory provisions.  Erik then described the rise of a regulatory reform as a new political movement, which was guided ideals of efficient government and restricted agency discretion.  Ironically, the “small government” movement led to the creation of more regulatory bodies at the federal level.

Commentator:   Jane Dailey, University of Chicago
Jane began her comments with some observations on narrative technique.  The aim, she said, is to get readers to turn the page, to keep going.  First, she urged the panel—and all the participants—to reorient their thinking as they begin to write.  Instead of marking off the presentation as a detached piece of a bigger story being told somewhere else, identify the question that you’re trying to answer and make clear its larger relevance.  Second, she said she was struck by how the storylines in each of the three papers were driven by chronology, but the authors hadn’t used chronology as a framing device.  Chronology, she observed, helps emphasize progression—that is, progression as historical process—and she suggested that everyone seek to make intellectual arguments that hinge on chronology.

The spirited question and answer session that followed this session was punctuated by Chris Tomlins’s observation that none of the presenters was asking grand questions about history, capitalism, or law; he also noted that some papers fit better with the theme than others.  He suggested that everyone look at the “vast theoretical literature” (Picketty, Bordieu, etc.) that he believes historians in this field have neglected.  We tell stories about chronology and people, but Chris notes that these stories will not succeed unless we address the work that brings law and capitalism together.  He was careful to say that his observation was not aimed at this panel in particular but was meant to entreat everyone as historians to interrogate the intersection of law and capitalism critically.  You can do this in whatever way you want, he said, but you must pick one of the theoretical hooks.

The group responded animatedly.  Bill Novak agreed with Chris’s critique, but said he also heard in the papers the beginnings of a project that can reanimate the field of legal history.  This project can be done pluralistically or individually but he agreed it should engage the much larger tradition dialectically, even if historians don’t agree with that tradition.  This led to a discussion about how a collective project might be conceived, what questions would animate it, and what form of history we are trying to create.  And several of the students pointed out that the risks of going outside conventional forms at the dissertation stage are high:  they have to think about landing jobs, publishing contracts, and tenure.  So the challenge is how to add to the ongoing discourse by asking new questions without appearing to reject or repudiate the categories of historical thinking that shape such things as hiring decisions.

Chris Tomlins persisted, asking everyone to think about how to conceive the relationship between law and capitalism as something other than as story, chronology, and people?  How does scholarship inform our understanding of the history of economy, the history of world capitalism?  Jane replied that the question of “is there a field” does not imply some general notion of conformity, but there is now a field of “capitalism studies” (economic history having died a slow and painful death), and we can all look to theory to ask larger questions; some of the papers don’t ask a central question yet, but that is where to begin with revisions. 

Barbara Welke and Sally Gordon pushed the conversation further in the direction of what the intended purpose of the conference was for early career scholars.  Our aim is to bring early career scholars into the field of history, Barbara pointed out, to think about the stakes of what we’re all doing, to identify the limits of history in its traditional frame, its traditional boundaries; what can history do for larger political projects, for the politically engaged scholar?  Sally asked a pointed question:  Who has figured out what capitalism is, or what law is?  This is the stuff of a career.  This is why we asked you here.  The craft is decades long.  “Thirty years in,” she observed, “my first drafts still suck.”  

Bill Novak thought the dissertations previewed at the conference will change the field of legal history, get people jobs, and earn them tenure, and this is all to the good.  But suggesting that every paper change the world is a big thing to expect.  The relationship between law and capitalism is the question of our time, from the Progessive movement through the regulatory state, the Law and Society movement, J. Willard Hurst, to critical legal studies.  This conference will reorient the field, he declared, but he thinks we can all go further, push Picketty further.  Can we be not just historians?  The form that history takes often doesn’t speak to other disciplines, but the energy in this room can help us begin to do this.