Tuesday, March 6, 2018

One Way to Write for Two Audiences

How do you write one book that speaks to two distinct audiences? The easy answer to this question is short and sweet: don’t bother. You may miss the mark in both directions, ending up with a book that attracts few readers and pleases none of them. Yet, with this danger in mind, I decided to forge ahead.

When I first embarked on City of Debtors, as a graduate student writing a dissertation, I imagined the audience as my former self: a lawyer engaged with present-day questions about consumer credit regulation. But, as I progressed in my research, I became more attuned to the questions that interested the community of historians that surrounded me in graduate school and thereafter. If I tried to address both audiences, I figured that at least I’d end up with a book that pleased me and made full use of the knowledge and skills that I had acquired from graduate training, research, and teaching across law and history.

I first considered what lessons history could offer policymakers, commercial law scholars, and others focused on contemporary questions. The past did not offer a winning regulatory regime that could be reconstructed and transplanted into the present, I quickly determined. Each era’s method of policing small-sum lending arose within the context of its own legal and business institutions and ideas. Nor did history have an obvious and immediate relevance to the day-to-day work of practitioners in the field. In the realm of constitutional law, for example, interpretative arguments often depend on recovering the original meaning of the constitutional text. But in commercial law, the ambition of the present is often to abandon and move beyond past old, outdated practices. (In 1948, scholar Grant Gilmore celebrated the proposed Uniform Commercial Code, a core commercial statute, as a means for clearing the “historical underbrush” and providing “a freshly marked base line from which to start a new process of case-by-case development.”)

But I found that my research did address two questions of contemporary interest: why has it been so difficult to regulate small-dollar lending and why have policymakers been unable to devise a regime of regulation for this industry that can stand the test of time? The book argues that there are three major reasons why governing small-sum lending has proved to be especially tricky over the course of the past century: the difficulty of policing a nationwide industry within a federal system of divided power (i.e., federalism), the challenge of drawing appropriate regulatory categories for various forms of lending, and the impossibility of disentangling concerns about small-dollar credit from those about the welfare state. I will discuss these arguments in more detail in a future post on legal history and “presentism.”

I also knew that historians would care less about the peculiar challenges of policing small-dollar loans, both today and in the past. For these readers, I considered how the dynamics I observed, in my one corner of the credit marketplace, might speak to bigger questions about the relationship between business and the state, as well as questions about the process of policymaking and how law develops over time. (I hoped that these questions might also interest non-historians, to the extent that they sharpen our understanding of the origins of present-day problems or how legal change happens over time.)

The book identifies four recurring patterns in the interactions between the small-dollar lending industry, state regulators, and advocates for reform. These are (1) the industry’s periodic support for law reform when in need of greater stability and legitimacy; (2) the regular reliance by reformers on private power as a supplement to state action; (3) the continual reshuffling of advocacy coalitions that brought together strange bedfellows in support of regulatory reform; and (4) the persistent influence of each era’s dominant ideas about the proper role of the state in the marketplace in reshaping the law. I will discuss the first pattern in my next post, which describes the challenge of balancing narrative and analysis.

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