Jabour on Sophonisba Breckenridge

 The University of Illinois Press has published a biography on the important twentieth-century reformer and academic Sophonisba Breckenridge: Sophonisba Breckinridge: Championing Women's Activism in Modern America (2020), by Anya Jabour (University of Montana). A description from the Press:

Sophonisba Breckinridge's remarkable career stretched from the Civil War to the Cold War. She took part in virtually every reform campaign of the Progressive and New Deal eras and became a nationally and internationally renowned figure. Her work informed women's activism for decades and continues to shape progressive politics today.

Anya Jabour's biography rediscovers this groundbreaking American figure. After earning advanced degrees in politics, economics, and law, Breckinridge established the University of Chicago's School of Social Service Administration, which became a feminist think tank that promoted public welfare policy and propelled women into leadership positions. In 1935, Breckinridge’s unremitting efforts to provide government aid to the dispossessed culminated in her appointment as an advisor on programs for the new Social Security Act. A longtime activist in international movements for peace and justice, Breckinridge also influenced the formation of the United Nations and advanced the idea that "women’s rights are human rights." Her lifelong commitment to social justice created a lasting legacy for generations of progressive activists.

Advance praise:

"In propulsive prose, Anya Jabour brings to life progressive feminist Sophonisba Breckinridge, whose forty-year career as an advocate for social justice provides a model of 'passionate patience' for progressives in the twenty-first century."--Robyn Muncy

"Anya Jabour has written an outstanding biography of Sophonisba Breckinridge. She has thoroughly convinced me of Breckinridge's important role in American and women's history and how much of each is revealed by her lifelong activism. The research is expansive and the writing is flawless."--Joan M. Johnson

More information is available here.

-- Karen Tani

Witt Reviews Holdren's "Injury Impoverished"

John Fabian Witt, Yale Law School, has posted Radical Histories/Liberal Histories in Work Injury Law, a review forthcoming in the American Journal of Legal History of Nate Holdren’s Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era:

Nate Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. According to Holdren, work injuries were at their core a form of labor exploitation. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way 19th-century tort law actually worked. He calls for an impossibly demanding form of "justice as recognition" from the law. He misses the ways in which workers co-opted new forms of accident law and turned them to their own interests. And his single-minded focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work injuries.

--Dan Ernst

Sposini on Certifying Insanity in Ontario

Filippo Maria Sposini, a PhD candidate at the University of Toronto, has published Just the Basic Facts: The Certification of Insanity in the Era of the Form K in the Journal of the History of Medicine and Allied Sciences 75 (April 2020): 171–192: 

This paper investigates the certification of insanity through a standardized template called Form K which was used in Ontario between 1873 and 1883. My main thesis is that the introduction of the Form K had profound and long-lasting effects on the determination of insanity. In particular, it created a unique case in the history of certification, it grounded civil confinement on a strategy of consensus, and it informed mental health documentation for more than a century. As the result of a transnational mediation from Victorian England, the Form K prescribed an examination setting which involved a high number of participants, including three physicians and several witnesses. By comparing this case with other jurisdictions of the time, this paper shows how Ontario became a distinctive case worldwide. In order to get a closer look at this medico-legal procedure, I consider the archival records of the Toronto asylum and conclude that the certification of insanity relied on a strategy of consensus. While the Form K proved quite successful in preventing legal actions, it produced financial, logistic, and bureaucratic issues. The Form K was thus discontinued after a decade, yet its structure influenced Ontario’s mental health documentation throughout the twentieth century. This paper shows the relevance of the certification of insanity for transnational history and for understanding contemporary issues of involuntary confinement and stigma in mental health.

--Dan Ernst

Prifogle, "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971"

Emily Prifogle (University of Michigan Law) has posted "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971." Here's the abstract:

In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. This article uses Michigan as a case study to examine the informal safety net those rural women created and how it ultimately strengthened the very economic and legal structures that left agricultural workers vulnerable. From the 1940s through the 1960s, federal, state, and local law left large gaps in labor protections and government services for migrant agricultural laborers in Michigan. In response, church women created rural safety nets that mobilized local generosity and provided aid. These informal safety nets also policed migrant morality, maintained rural segregation, and performed surveillance of community outsiders, thereby serving the farmers’ goals of having a reliable and cheap labor force. 

The full article is available here. (h/t @WomenKnowLaw)

-- Karen Tani

Fleming on the Public Interest in the Private Law of the Poor

Anne Fleming, Georgetown University Law Center, has posted The Public Interest in the Private Law of the Poor, which appeared in the Harvard Law & Policy Review 14 (2019): 159-203:

This Article begins to explore the uncharted connections between private law and poverty law, revealing a striking pattern that is only visible when these two bodies of law are viewed in the same frame. Many poverty law scholars have focused on the rules that regulate government assistance to the poor. They have left largely left unexamined the private law of the poor — meaning, laws that govern the private economic relationships of those living in poverty or in danger of falling into destitution. At the same time, the study of private law is flourishing among scholars who seek to understand the law’s vision of justice in relations between private individuals. But these scholars often seek that vision within the law’s doctrinal structures, which betray little overt concern with poverty.

Revealing the connections between the two fields, this Article shows how concerns about public spending on poor relief have shaped debates over the private law of the poor for over a century. It traces the recurrence of one rationale for regulation, the prevention of “pauperism,” that explicitly linked private law rules with poverty alleviation. Proponents of the anti-pauperism argument claimed that private law, if properly structured, could help prevent dependence on poor relief and thereby reduce the burden on the public fist of caring for poor households. Thus, they imagined the private law of the poor as one component of a larger system of rules designed to keep families self-supporting and off the poor relief rolls.

Drawing on original research across a range of source materials, this Article traces the history of the anti-pauperism argument and offers several explanations for its enduring appeal. It then describes the implications of this history for law and economics scholars, for present-day fights against economic inequality and in favor of regulatory reform, and for breaking down the silos between private law and poverty law.

--Dan Ernst

Weekend Roundup

•  Over at Jotwell, Deborah Dinner has a notice of Nate Holdren's  forthcoming Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press).

• “Katrina Jagodinsky will use a three-year, $460,000 grant from the National Science Foundation to explore how habeas corpus was used in the American West by various marginalized groups to claim freedom and establish their rights between 1812 and 1924.”  More.

• Now available online from Law and History Review and Cambridge Core: “The Work of Some Irresponsible Women”: Jurors, Ghosts, and Embracery in the Irish Free State," by Mark Coen.  “This article examines a campaign of jury intimidation conducted by female Republicans in the Irish Free State from 1926 to 1934.”

• Ronald K.L. Collins has posted Benjamin Franklin Bache and the Fight for the Free Press: When Benjamin Franklin’s Grandson was Jailed for Critiquing His President (Part I), over at First Amendment Watch.

• Over at the blog of the Historical Society of the New York State Courts is a post summarizing John Oller’s article, forthcoming in Judicial Notice, entitled “George Wickersham: ‘The Scourge of Wall Street.’”  The video of the Society’s webinar, "Lessons Learned from the 1918 Flu Pandemic," is here; its video, "The Evolution of Slavery, Abolition in NY, and the NY Courts: The Lemmon Slave Case," is here.

• ICYMI: Lizabeth Cohen on The Lessons of the Great Depression (The Atlantic)  David Bernstein on administrative constitutionalism (Volokh Conspiracy).  Transcribing manuscripts as a productive escape from pandemic blues (WaPo).

• Sadly but not surprisingly, the Law Books course at Rare Books School, taught by Mike Widener (assisted by Ryan Greenwood) has been cancelled for summer 2020. 

• If you're not already zoomed out: Fridays at 6pm Eastern Time is Drinking with Historians, hosted by Matt Gabriele (Virginia Tech) and Varsha Venkatsubramanian (UC-Berkeley) and with a different guest each week. Registration is here.

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

Weekend Roundup

• In the San Francisco Chronicle, Amanda L. Tyler (Berkeley Law) offers "Lessons from President Lincoln in the age of coronavirus."

• We the People, the podcast of the National Constitution Center, recently released an episode on "The Constitution and the Coronavirus." One of the featured guests is legal historian Polly Price (Emory University School of Law).  

•  The 28th Annual Ira C. Rothgerber Conference, “Women’s Enfranchisement: Beyond the 19th Amendment," will now occur as a Zoom Webinar on Friday April 3rd, 8:30 a.m. - 5:00 p.m. MT.  More.

• Ronald K. L. Collins on Wendell Bird on the history of freedom of speech and of the press over at First Amendment News.

• From the Washington Post's "Made by History" section: Teal Arcadi and Casey Eilbert (PhD candidates at Princeton University) on how "Dismantling the federal bureaucracy has left us all vulnerable to covid-19"; Elizabeth Tandy Shermer (Loyola University Chicago) makes a similar argument regarding the "failure to create a better social safety net"; Jane Manners (Columbia Law School) on why "Democrats have been right to insist on a relief package that helps average Americans"; and more.

• ICYMI:  A national compendium of exhibits on the centennial of the 19th Amendment (Antiques).  Miriam Seifter, Wisconsin Law, on gubernatorial emergency power.  In case you want to brush up on a real war president for those FDR vs. DJT comparisons: this.  Update: Okay, but what took so long?  Update: Mashpee Wampanoag Tribe To Lose Its Reservation (WBUR).

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

Glass and Vanatta on New York State Pensions and "Fiscal Mutualism"

Michael Glass, Princeton University Department of History, and Sean Vanatta, New York University Gallatin School, have posted The Frail Bonds of Liberalism: Pensions, Schools, and the Unraveling of Fiscal Mutualism in Midcentury New York:

Between 1940 and 1965, state-level officials changed the relationship between two pillars of the postwar social contract: secure retirement and modern public schools. In the early twentieth century, state pension managers, following a prevailing investment regime we call “fiscal mutualism,” funneled the savings of government workers into government securities. Through direct participation in financial markets, pension officials lowered borrowing costs for local governments and helped lay the infrastructural foundation of modern America. Yet by the 1960s, pension managers had completely abandoned this investment regime. We document this transformation through a close examination of New York State’s pension fund. Throughout the 1950s, the comptrollers who managed the New York State Employee Retirement System (NYSERS), the nation’s largest state pension, underwrote the boom in suburban school construction by purchasing the municipal bonds of local school districts. However, in response to changes in national political economy, along with evolving norms of “fiduciary duty,” New York Comptroller Arthur Levitt, Sr., sought to deregulate the pension’s investment powers. Following significant regulatory changes, Levitt steadily disinvested from municipal bond holdings in favor of higher-yielding corporate securities. Pension deregulation thereby secured higher returns for state retirees, but it also forced local school districts to confront municipal bond markets without the backstop of fiscal mutualism. As school budgets, and the property taxes supporting them, became freighted with expensive interest payments, tax revolts became a permanent response to liberalism’s fiscal volatility. These transformations, we argue, stemmed from postwar liberalism’s dependence on financial markets to deliver retirement security, public education, and other social benefits. This underlying dependence on finance foreclosed more ambitious policy alternatives and ceded inordinate power to private actors, who prioritized profits over social welfare provision.

--Dan Ernst

Weekend Roundup

• The Organization of American Historians has cancelled its annual meeting. But you can still skim the excellent program that the organizers put together. Margot Canaday (Princeton University) and Craig Steven Wilder (MIT) co-chaired the program committee. AND, if you were scheduled to present, check out this invitation (via Twitter) from The Docket (the online companion to the Law & History Review): "We’re sad about all that awesome #legalhistory scholarship that was going to be at #OAH20 and we’d like to be of service. The Docket will publish abstracts, full papers, etc. for any law, policy, or politics related OAH panel!" 

• Two recent op-eds by Felicia Kornbluh (University of Vermont): "Will the Court Ignore Past Rulings in Its Zeal to Demolish Abortion Rights?" (American Prospect) and "The abortion issue is back in the Supreme Court. What would my mother, and Jewish feminists of her generation, think?" (Forward).

• From Process, the blog of the Organization of American Historians, Greg Ablavsky (Stanford Law) writes about his recent Journal of American History article “Species of Sovereignty: Native Nationhood, the United States, and International Law, 1783–1795.

• For those who have moved to online teaching, Twitter is filled with good resources right now. For example, Aimi Hamraie (Vanderbilt University) tweeted out an excellent guide to "accessible teaching in the time of COVID-19," tapping into some hard-won wisdom from "disabled culture and community." 

• Law and History Review and Cambridge Core have posted two new articles: “Precocious Girls”: Age of Consent, Class and Family in Late Nineteenth-Century England, by Laura Lammasniemi, and Vernacularizing Justice: Age of Consent and a Legal History of the British Empire, by Ishita Pande. 

• Reuel E. Schiller has published “Regulation and the Collapse of the New Deal Order, or How I Learned to Stop Worrying and Love the Market,” in Beyond the New Deal Order: U.S. Politics from the Great Depression to the Great Recession, ed. Gerstle, Lichtenstein, and O’Connor (University of Pennsylvania Press, 2019).

• From the Washington Post's "Made by History" section: Elisa Minoff (Center for the Study of Social Policy) on why "work requirements are catastrophic in a pandemic"; Brendan Shanahan (Yale University), "Counting everyone — citizens and non-citizens — in the 2020 census is crucial"; Ariela Gross (University of Southern California) and Alejandro de la Fuente (Harvard University), "The history of slavery remains with us today"; and more.

• The Library of Congress may be closed to the public, but we believe its “crowdsourcing initiative By the People” continues.  The newest campaign to enlist the public’s help in making "digital collection items more searchable and accessible online is Herencia: Centuries of Spanish Legal Documents includes thousands of pages of historical documents in Spanish, Latin and Catalan."

• Jayanth K. Krishnan, Indiana University Maurer School of Law, has posted "Lawyers for the Undocumented: Addressing a Split Circuit Dilemma for Asylum-Seekers," which is forthcoming in the Ohio State Law Journal.  A section treats the Equal Access to Justice Act (EAJA), a federal statute adopted in 1980.

• ICYMI: An exhibit at the Lombard Historical Society on “the first woman to ever vote in an Illinois municipal election, an attorney named Ellen Martin.”  Patti Smith’s blurb of Ralph Nader’s cookbook: “A wonderful blend of consumer protection and consumer pleasure.” H/t: JLG

• And if you can face it: Duke University Press has put together this Navigating the Threat of Pandemics collection--free to read online until June 1 (books) and Oct.1 (articles). LHB readers may appreciate this one especially.

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

Weekend Roundup

• The University of Kentucky College of Law is hosting this year’s Kentucky Law Journal Symposium, “Written in Stone: American Monuments and Monument-Protection Law,” on November 1.  More. 

• The Franklin D. Roosevelt Presidential Library and Museum presents an exclusive pre-broadcast film screening and discussion of a new national public television documentary Summoned: Frances Perkins and the General Welfare, on Sunday, November 3, 2019 at 2:00 p.m.

• New from Law and History Review and Cambridge Core: “The Citizen Complains”: Federal Compensation for Property Lost in the War of 1812, by Craig B. Hollander.

• New from the American Journal of Legal History and OUP Journals: ‘The Great Britain of the South’: the Law of Contract in Early Colonial New Zealand, by Warren Swain.

• In South Asian legal history news: there was a good crop of legal history papers at the 13th Annual South Asian Legal Studies Workshop in Madison last weekend (program here).  Plus this and this at South Asian Legal History Resources on women in the legal profession over the past century.

• Update: The conference on Status and Justice in Law, Religion, and Society (organized by Timothy Lubin and Kameliya Atanasova) will be taking place at Washington and Lee University soon--on Nov.1-3. The program is here.

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

Norris on the New Deal "Workers' Constitution"

Luke Norris, University of Richmond School of Law, has posted The Workers' Constitution, which is forthcoming in volume 89 of the Fordham Law Review:

This Article argues that the National Labor Relations Act of 1935, Social Security Act of 1935, and Fair Labor Standards Act of 1938 should be understood as a “workers’ constitution.” The Article tells the history of how a connected wave of social movements responded to the insecurity that wage earners faced after the Industrial Revolution and Great Depression by working with government officials to bring about federal collective bargaining rights, wage and hour legislation, and social security legislation. It argues that the statutes are tied together as a set of “small c” constitutional commitments in both their histories and theory. Each statute sought to redefine economic freedom for workers around security and sought to position worker security as essential to the constitutional accommodation of corporate capitalism. The Article also explores the interpretive implications of conceiving of a “workers’ constitution” in the current context.

H/t: Legal Theory Blog

Kornbluh & Mink on Welfare Reform in Feminist Perspective

New from the University of Pennsylvania Press: Ensuring Poverty: Welfare Reform in Feminist Perspective (Nov. 2018), by Felicia Kornbluh (University of Vermont) and Gwendolyn Mink (Independent Scholar). A description from the Press:

In Ensuring Poverty, Felicia Kornbluh and Gwendolyn Mink assess the gendered history of welfare reform. They foreground arguments advanced by feminists for a welfare policy that would respect single mothers' rights while advancing their opportunities and assuring economic security for their families. Kornbluh and Mink consider welfare policy in the broad intersectional context of gender, race, poverty, and inequality. They argue that the subject of welfare reform always has been single mothers, the animus always has been race, and the currency always has been inequality. Yet public conversations about poverty and welfare, even today, rarely acknowledge the nexus between racialized gender inequality and the economic vulnerability of single-mother families.

Since passage of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) by a Republican Congress and the Clinton administration, the gendered dimensions of antipoverty policy have receded from debate. Mink and Kornbluh explore the narrowing of discussion that has occurred in recent decades and the path charted by social justice feminists in the 1990s and early 2000s, a course rejected by policy makers. They advocate a return to the social justice approach built on the equality of mothers, especially mothers of color, in policies aimed at poor families.

A few blurbs:

"Placing feminist analysis front and center in the ongoing public debate about welfare policy, Felicia Kornbluh and Gwendolyn Mink offer a much-needed corrective to the standard historical narrative about welfare reform that normalizes the most gendered and retrograde provisions of the welfare 'ending' Personal Responsibility and Work Opportunity Reconciliation Act."—Alice O'Connor 

"Ensuring Poverty is an important and overdue assessment of welfare reform's impact on women. Felicia Kornbluh and Gwendolyn Mink not only revive feminist criticism of the system's failure to value women's care work but also use new data to explain why welfare reform remains a critical aspect of politics today."—Dorothy Roberts

More information is available here. If you order from the Penn Press website, you can receive a 20 percent discount using this promo code: PJ55.

What History Brings to the Study of Law & Political Economy: Tani on Winant

I have been thinking lately about the intersection of law and political economy, thanks in part to the recently created Law and Political Economy Blog (an outgrowth of a Spring 2017 class at Yale Law School and now a stand-alone project with YLS and non-YLS contributors, both students and faculty). To deepen my own understanding and think more concretely about what historians can add to the conversation, I've decided to join the LPEblog roster. Here's a taste of my first post:

As a historian working in a law school, I think often about what history adds to the study of law and the training of future lawyers. Rarely does history provide an obvious road map to solving new legal problems, but it does at least two other things well: (1) it helps explain why the legal landscape looks the way it does; and (2) it illuminates the consequences of particular legal choices. This makes all the more valuable recent historical work that engages with political economy. We gain from this work a better sense of the political economies that produced our current configuration of laws. We also gain insights into how law constructs the political economy of the future—by sending signals about who will be insulated from the vicissitudes of “the market” and who will be exposed, whose rights can be bargained away and whose are too sacred, whose lives have value and whose do not. 

An excellent example of this work is historian Gabriel Winant’s recent article in the Journal of American History, “A Place to Die: Nursing Home Abuse and the Political Economy of the 1970s.” Winant does not frame the piece as legal history, but law is all over the history he tells, in complex and sometimes unintuitive ways.

You can read on here. The post identifies the legal threads woven into Winant's argument and emphasizes how deeply law was implicated in Winant's story of abuse and neglect. 

Thank You, Anne Fleming

We wanted to thank Anne Fleming, Georgetown Law, for guestblogging on LHB this month and to collect her interesting and thought-provoking posts on the challenges of writing City of Debtors.  In addition to our welcome, the posts were:

The Challenge of Writing for Two Audiences
One Way to Write for Two Audiences
Balancing Narrative and Analysis
The Meanings of Presentism
Policy-Relevant History

Welcome Anne Fleming!

I'm delighted to welcome as a Guest Blogger my Georgetown Law colleague Anne Fleming, who will be posting (in the first half of the month--another Guest Blogger follows) on her recently published book, City of Debtors: A Century of Fringe Finance (Harvard University Press).  From our earlier post:

City of Debtors shows how each generation of Americans has tackled the problem of fringe finance, using law to redefine the meaning of justice within capitalism for those on the economic margins. Anne Fleming tells the story of the small-sum lending industry’s growth and regulation from the ground up, following the people who navigated the market for small loans and those who shaped its development at the state and local level. Fleming’s focus on the city and state of New York, which served as incubators for numerous lending reforms that later spread throughout the nation, differentiates her approach from work that has centered on federal regulation. It also reveals the overlooked challenges of governing a modern financial industry within a federalist framework.

Professor Fleming received her Ph.D. in history from the University of Pennsylvania and, to quote Georgetown's website,

her J.D., magna cum laude, from Harvard Law School, where she served as a board member of the Legal Aid Bureau.After law school, she served as a law clerk to the Honorable Miriam Goldman Cedarbaum of the U.S. District Court for the Southern District of New York and the Honorable Marjorie O. Rendell of the U.S. Court of Appeals for the Third Circuit.  She also practiced as a staff attorney for South Brooklyn Legal Services, representing low-income homeowners facing foreclosure. Before joining the Georgetown faculty, Fleming taught at Harvard Law School as a Climenko Fellow and Lecturer on Law. 

 Welcome Professor Fleming!

Silber on "The Poor Pay More"

Norman I. Silber, Hofstra University School of Law, has posted Discovering that the Poor Pay More: Race Riots, Poverty, and the Rise of Consumer Law, which appears in the Fordham Urban Law Journal 44 (2017): 1319-1328, and was a contribution to a symposium issue.

David Caplovitz is remembered primarily for his book The Poor Pay More and his writing about poor consumers. This article addresses why this work propelled the reconstruction of consumer financial protection law, by placing it within the context of widespread urban rioting and the civil rights movements of the 1960s. It argues that Capolvoitz presented the American political center with a clinical, denatured sociological explanation for urban rioting, which involved a more palatable and less threatening suggested response to unrest than explanations premised on intrinsic white racism or class oppression. According to Caplovitz, the riots more than anything else reflected a political and social failure to appreciate the importance of consumer finance. He recommended addressing racism and deeper social grievances through major revisions to commercial and consumer law. Sidestepping other “root causes,” Caplovitz helped courts, law-makers, and many middle-class Americans revalue consumer law and its connection to domestic peace, poverty and economic justice.

Fleming's "City of Debtors"

My Georgetown Law colleague Anne Fleming has just published City of Debtors: A Century of Fringe Finance with the Harvard University Press:

Since the rise of the small-sum lending industry in the 1890s, people on the lowest rungs of the economic ladder in the United States have been asked to pay the greatest price for credit. Again and again, Americans have asked why the most fragile borrowers face the highest costs for access to the smallest loans. To protect low-wage workers in need of credit, reformers have repeatedly turned to law, only to face the vexing question of where to draw the line between necessary protection and overreaching paternalism.

City of Debtors shows how each generation of Americans has tackled the problem of fringe finance, using law to redefine the meaning of justice within capitalism for those on the economic margins. Anne Fleming tells the story of the small-sum lending industry’s growth and regulation from the ground up, following the people who navigated the market for small loans and those who shaped its development at the state and local level. Fleming’s focus on the city and state of New York, which served as incubators for numerous lending reforms that later spread throughout the nation, differentiates her approach from work that has centered on federal regulation. It also reveals the overlooked challenges of governing a modern financial industry within a federalist framework.

Fleming’s detailed work contributes to the broader and ongoing debate about the meaning of justice within capitalistic societies, by exploring the fault line in the landscape of capitalism where poverty, the welfare state, and consumer credit converge.

Here are some endorsements:

“Fleming’s fascinating, carefully researched study reveals the pivotal role New York played in the development of consumer-credit regulation. New York might be an outlier in the twenty-first century, but at the turn of the twentieth century, when small-sum loans originated, every major thread was connected to the events and personalities of New York.”—Ronald J. Mann, author of Bankruptcy and the U.S. Supreme Court

“Anne Fleming’s pathbreaking narrative of small-sum lending in New York City brings alive loan sharks, lenders seeking respectability, reformers, crusading lawyers, and the debtors themselves, all while focusing on a problem that plagues us to this day: the poor need money desperately, have little credit to obtain it, and thus are easy marks for exploitation.”—Robert W. Gordon, author of Taming the Past: Essays on Law in History and History in Law

“Loan sharks and banks reside on a single lending continuum. Fleming takes us to the only space on that continuum where marginal wage-earners could legally, albeit expensively, borrow money. City of Debtors is essential reading for anyone who would understand that world and its consequences, then and now.”—Bruce H. Mann, author of Republic of Debtors: Bankruptcy in the Age of American Independence

“It would be easy to get lost in the thicket of loopholes, appeals, FTC rules, ‘wage assignments,’ ‘waiver of defense clauses,’ and similar arcana, but Fleming is a surefooted guide. The reader comes out with a much deeper understanding of the shadowy, constantly changing landscape at the edges of standard finance and economic daily life.”—Bethany Moreton, author of To Serve God and Wal-Mart: The Making of Christian Free Enterprise

Professor Fleming’s “Made by History” op-ed on the book is here.  She’ll be presenting it to the Washington History Seminar at the Woodrow Wilson International Center for Scholars on March 19.

Spieler on Worker's Comp in the US, 1900-2017

Emily A. Spieler, Northeastern University School of Law, has posted (Re)Assessing the Grand Bargain: Compensation for Work Injuries in the United States, 1900-2017, which appears in the Rutgers University Law Review 69 (2017): 891-1013.

Scene at Cramp's Ship Yards, 1917 (NYPL)

This article presents a comprehensive history and analysis of work injury compensation in the U.S. from the time of the initial adoption of workers’ compensation laws in the early 20th century to 2017. Workers’ compensation is almost entirely the domain of state legislatures and state courts without any federal oversight or standards, making it particularly difficult to study. In this article, Part I (the Introduction) situates workers’ compensation within the social benefit system of the U.S. Part II provides a history of the evolution of the laws, describing three periods: an early period, during which state variation and inadequacy of benefits were commonplace; a turn toward concern about adequacy of benefits and reforms in state legislatures after the 1972 report of the National Commission on State Workmen’s Compensation Laws noted the inadequacy and inequity of the state systems; and retrenchment, starting in the early 1990s, as employers and insurers successfully have fought to reduce the growing costs of the program by limiting access to benefits. Part II also briefly describes recently successful litigation that relies on state constitutions to challenge the inadequacies of the state programs. Part III focuses on the key contextual forces influencing workers’ compensation, noting the ways in which the nature and regulation of work, conceptions of safety, the surrounding social safety net and the health care system have affected the evolution and functioning of the state workers’ compensation systems. This section concludes with a discussion of the way in which changes in political equilibrium play out in these programs. Part IV provides a review of the current status of workers’ compensation in the U.S., including the adequacy of benefits and the dueling views that underlie some of the political battles in the states. It summarizes evidence that suggests that many injured workers never receive compensation, and explores the problems caused by inconsistent narratives regarding the purpose of the program. Finally, Part V addresses the future of workers’ compensation in the U.S.

Carr on Animal Welfare Law in 19th-Century Scotland

Daniel James Carr, University of Edinburgh Law School, has posted The Historical Development of Animal Welfare Law in Nineteenth Century Scotland:

This paper examines the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.

Cromwell Book Prize to Tani for "States of Dependency"

As I mentioned in an earlier post, LHB Blogger Karen Tani, UC Berkeley Law, received the Cromwell Book Prize at last weekend’s meeting of the American Society for Legal History for her States of Dependency: Welfare Rights, and American Governance, 1935-1972 (New York: Cambridge University Press, 2016).  Here is the citation:

Historians and social scientists, Karen M. Tani maintains, have gotten the history of welfare and the rise of the American administrative state all wrong.  In this nuanced, fresh, original, and challenging social history of administrative law, waves of poverty reformers from the New Deal to the 1970s made dramatic advances in the treatment and understanding of the poor while being thwarted by larger legal values and structures such as the federal system itself.  Throughout the book, Tani casts a bright light on the middle managers, poverty reformers, and lawyers/administrators in the localities and the states whom the national policy makers charged to carry out the new reforms.  It was these bureaucrats who fleshed out the policies and implemented the changing values of welfare reform in the twentieth century United States.  In the first part of the book, these reformers/administrators sought uniformity, centralization, professionalization, and the establishment of legal rights of the poor.  And although federal law mattered, the most important action occurred on the ground in the localities and in the various states.  Beginning about 1950, in the second half of the work, reformers ran into resistance from exactly those localities and the states.  Federalism proved to be alive and well, and resistant to change.  State and local authorities curbed what they perceived as federal overreach, expressed their suspicion of the enterprise of bureaucratic governance, and acted on their long-simmering resentment of the intrusions of the New Deal into state and local affairs.  As a result, the limits of administrative government became clear which, in turn, inspired yet a new wave of lawyers and reformers.  They worked to establish that the poor were national citizens and used the federal courts to do so.  National citizenship carried with it a right against abusive state and local welfare policies.  National citizenship also entrenched the assumption in the culture the value that aid to the poor constituted income support and constituted a valid function of government.  This interpretation challenges older histories of administrative law, of women’s history, and social welfare history while demonstrating (most impressively) how legal history can transform conventions in non-legal history subfields such as women’s history.  Tani provides a compelling account of how the web of dependencies affected the poor, the balance of federalism, and the quality of American governance.

The overall chair of Advisory Committee on the Cromwell Prizes is John D. Gordan III.  The Book Prize Subcommittee was chaired by Thomas Mackey and included Felice Batlan, Sophia Lee, and Jonathan Levy.