Peck on the Failed Attempt to Tax West Virginia Coal

Alison Peck, West Virginia University College of Law, has posted Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia, which is forthcoming in the West Virginia Law Review:

Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. Coal companies and their attorneys succeeded in diluting the new taxes nearly out of existence at the assessment stage under a theory that the West Virginia Supreme Court of Appeals would uphold in late 1906, changing course from its decision just a year earlier. Despite the efforts of Baker and his colleagues, the corporate reforms that prospered on the national level during the Progressive Era never took root in West Virginia. This history bears revisiting in the current debates over tax reform and the prospects for economic and social development of the state. 

--Dan Ernst

Arlyck on Delegation and the Remission Act of 1790

Kevin Arlyck, Georgetown University Law Center, has posted Delegation, Administration, and Improvisation, which is forthcoming in the Notre Dame Law Review:

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more stringent modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be explained as exceptions to an otherwise-strict constitutional limit.

As this article shows, it is highly doubtful that the Founding generation thought of delegation in such categorical terms. The evidence nondelegationists cite in favor of their preferred classifications—systematically assessed here for the first time—is remarkably thin. More importantly, this article highlights how, for the Founding generation, building the administrative capacity needed to fulfill the national government’s responsibilities was not a quest to trace out hard constitutional boundaries between the branches. It was a dynamic and improvisational experiment in governance, in which Congress sought to mobilize the limited resources available to it in order to meet the myriad challenges the new nation faced.

To recapture early delegation’s dynamism, this article focuses on the Remission Act of 1790. It gave the Secretary of the Treasury broad and unreviewable authority to remit statutory penalties for violations of federal law governing maritime commerce—power a strict nondelegation principle would not have allowed. This arrangement was not the obvious choice, and Congress considered vesting this power in a range of institutional actors before settling on the Secretary. Yet despite deep concerns over the wisdom—and even the constitutionality—of concentrating too much power in the hands of a single executive branch officer, Congress repeatedly affirmed this discretion, and the early Secretaries (including Alexander Hamilton) did not hesitate to use it.

This was a pattern Congress repeated elsewhere, making early delegations of varying breadth across the spectrum of federal administration. This experiment in governance was not easy, nor was it free from controversy. Disputes over how and where to allocate governmental authority were frequent and contentious. But if legislative debates occasionally sounded in a constitutional register, overwhelmingly they turned on the kinds of practical considerations that animated Congress’s deliberations over the Remission Act. When it came to designing a workable administrative system for the new federal government, delegation’s boundaries were apparently quite expansive.

--Dan Ernst

Wozniakowski on Tax Policy and US Territorial Expansion

Tomasz P. Wozniakowski, Hertie School of Governance, has posted The Fiscal Origins of American Power: Federal Tax Policy and US Territorial Expansion in the Nineteenth Century:

In this working paper, I argue that United States (US) territory quadrupled within the first three generations since 1789 because, in the nineteenth century, the US developed a fiscal-military state capable of mobilizing considerable resources without provoking any major tax rebellion. Relying on indirect taxes—customs duties and excises—meant that the federal government could draw on a stable and uncontentious stream of revenue. This fiscal capacity allowed the US government to finance different methods of its territorial expansion, including warfare and purchase.

–Dan Ernst

Parrillo on Delegated Rulemaking and Federal Taxation in the 1790s

Nicholas R. Parrillo, Yale Law School, has posted A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, which is forthcoming in volume 121 of the Yale Law Journal (2021):

The Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested they are open to the sweeping theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking’s constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics’ main response has been that these early statutes don’t count, because they fall into areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: non-coercive legislation (e.g., giving benefits) or foreign-affairs legislation.

This Article finds that the originalist critics of

Oliver Wollcott, Jr. (wiki)

rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counter-example missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the “direct tax” of 1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties’ respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was “worth in money”—a standard that the legislation stated but did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with power to divide the state into districts and to raise or lower the assessors’ valuations of all real estate in any district by any proportion “as shall appear to be just and equitable”—a phrase undefined in the statute and not a term of art. The federal boards’ power to revise valuations en masse in each intra-state tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal tax burden within the state it covered.

This Article is the first study of the federal boards’ mass revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, the nation’s fourth-largest city, by 100 percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method; (c) had a major political aspect, as the federal boards were inheriting the contentious land-tax politics that had previously raged within the state legislatures, pitting the typical state’s rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards’ power was consistent with original meaning, or, alternatively, with the Constitution’s liquidated meaning. Vesting administrators with discretionary power to make politically-charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution into practice.

More broadly, this Article is the first in-depth treatment of the 1798 direct tax’s administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution’s first two decades. It is remarkable that today’s passionate debate on whether the administrative regulatory state violates the framers’ Constitution has so far made no reckoning with this endeavor.

--Dan Ernst

Utz on Dickens on the English Income Tax

Stephen Utz, University of Connecticut School of Law, has posted Boz Among the Radicals: Dickens Records a Turning Point in Tax History:

Charles Dickens, 1867 (LC)

Charles Dickens recorded many trials conduct by his friend, the attorney Thomas Talfourd. Dickens was only twenty-two years old when he recorded the trial of the Weekly True Sun's principal officers for their challenge to the Whig Parliament's rejection of an income tax. Liberal members of Parliament and the public opposed the trial. Dickens' perfect capture of the trial attorneys' and defendants' speeches at the trial reveals his understanding of the issues and his apparent sympathy with the defendants' cause. Yet he later stood back from all this, with the apparent exception of his parting of the ways with Harriet Martineau, his partner in the publishing venture of Dickens' middle years, which have been his rejection of her taking the same side the Whigs had taken in 1834.

--Dan Ernst

Networks and Connections in Legal History

Just out from Cambridge University Press: Networks and Connections in Legal History, edited by Michael Lobban, London School of Economics and Political Science, and Ian Williams, University College London:

Network and Connections in Legal History examines networks of lawyers, legislators and litigators, and how they shaped legal development in Britain and the world. It explores how particular networks of lawyers - from Scotland to East Florida and India - shaped the culture of the forums in which they operated, and how personal connections could be crucial in pressuring the legislature to institute reform - as with twentieth century feminist campaigns. It explores the transmission of legal ideas; what happened to those ideas was not predetermined, but when new connections were made, they could assume a new life. In some cases, new thinkers made intellectual connections not previously conceived, in others it was the new purposes to which ideas and practices were applied which made them adapt. This book shows how networks and connections between people and places have shaped the way that legal ideas and practices are transmitted across time and space.

TOC after the jump. [DRE]

Utz on Chartism and the Income Tax

Stephen Utz, University of Connecticut School of Law, has posted Chartism and the Income Tax, which appeared in 2013 British Tax Review 192:

Although the identity of Chartism was bound up with political demands, many in the movement consistently pressed for the repeal of duplicative taxes on consumption and the introduction of even-handed taxation of land, capital and labour. Earlier popular radicals had asked for limited tax relief. Chartist leaders from the outset saw a link between fiscal problems and the democratic deficit prolonged by the Reform Act, insisting that a broader franchise would quickly lead to a broad direct tax. Novel features of their tax agenda emerged as they transformed views first aired in radical attacks on the replacement of workers with machinery and on the house and window taxes. By 1842, when Peel reinstated the income tax, they were arguing in their own words for the equity and neutrality of such a measure. Historians of the movement have neglected the coherence and detail of this Chartist agitation. With Peel’s defeat, and Disraeli’s failed attempt to extend the income tax, parliamentary hearings on making the tax permanent reflected elements of the movement’s distinctive views.

–Dan Ernst

Avi-Yonah on Antitrust and the Corporate Taxation, 1909-1928

Reuven S. Avi-Yonah, University of Michigan Law School, has posted Antitrust and the Corporate Tax, 1909–1928:

Lincoln Steffens (NYPL)

Between the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914, the question of what to do about “trusts” dominated American political life. Before 1889, the dominant form of amalgamating competing businesses was the trust, because corporations could not hold shares in other corporations, and instead the shareholders would exchange their shares for trust certificates. But in 1889 New Jersey (the “traitor state”, according to muckraking journalist Lincoln Steffens) changed its corporate law to allow for holding company structures, setting of a great wave of amalgamations in areas like oil, tobacco, sugar and steel.

This paper will focus on one attempt to address the “trust problem” by means other than the Sherman Act (which faced some resistance in the courts, as the government lost the E.C. Knight case in the Supreme Court in 1895 and barely won the Northern Securities case in 1905). This was the corporate tax act of 1909, which as will be seen below, was primarily intended as an antitrust measure. However, after the enactment of the Clayton Act and the creation of the FTC in 1914, the corporate tax was less needed as an antitrust measure, and between 1919 and 1928 its antitrust features were largely eliminated.

–Dan Ernst

Culter on the Single Tax and The Hebrew Bible

Joshua Cutler, University of Houston, C.T. Bauer College of Business, has posted A Hebrew Republic in the Gilded Age? Henry George’s Single Tax and the Hebrew Bible:

Henry George (NYPL)

Henry George sparked a vast popular movement following the publication of his classic work Progress and Poverty. Seeking to explain why poverty always seemed to increase along with progress, George proposed that, as societies advanced, land owners were able to capture an increasing share of wealth. To remedy this, George proposed a “Single Tax” on the unimproved value of land, which would prevent land speculation and hoarding and make land available for all who desired to work it. While George was ostensibly an economist, he is best understood as an ethical-religious figure, and his most devoted followers were a diverse array of religious leaders and reformers. However, the actual religious substance of George’s ideas has been largely unexplored. I propose that George’s program was inspired by Jewish ideas and institutions originating from the Hebrew Bible. In Hebraic thought, by virtue of creating the earth, God is the only rightful owner of land. This principle was embodied in the Hebrew Bible’s land laws that ordained an equal distribution of land along with institutions to maintain this distribution over time. Centuries before George, I discuss how medieval Jewish rabbis had already derived a taxing power from the Hebraic land laws. These biblical land laws would also come to have a strong influence on European political thought through an intellectual tradition known as the “Hebrew Republic.” I attempt to understand Henry George’s thought as an unwitting revival of this tradition, with his Single Tax as an innovative adaption of the Hebraic institutions. The Hebraic understanding of land ownership continues to offer potential inspiration for alternative systems of taxation and economic regulation.

–Dan Ernst

Weekend Roundup

• Reuven S. Avi-Yonah, University of Michigan Law School, has posted Why Study Tax History?, a review of volume 9 of Studies in the History of Tax Law, ed. P. Harris and D. de Cogan (Hart, 2019). 

• Congratulations to Emory Law's Deborah Dinner upon her being selected for an ACLS Frederick Burkhardt Residential Fellowship.  She received it for A Nation at Risk: Private Insurance and the Law in Modern America.  Congratulations, too, to Erik Linstrum, Associate Professor, History, University of Virginia, for Age of Emergency: Living with Violence at the End of Empire.

• Mary Dudziak recently tweeted out a link to the panel she moderated at SHAFR on in 2017 on War, Law, and Restraint, with Rosa Brooks, Jack Goldsmith, Helen Kinsella and John Fabian Witt.

• Some thoughts on epidemics in South Asian legal history: how the 1896 bubonic plague hit legal Bombay (-MS).  Voting during the Spanish Flu (Slate) and in today's NYT.  Polly J. Price (Emory) on quarantine in US history.  Frank Snowden’s lectures on “Epidemics in Western Society Since 1600,” including the final one, which calls “SARS, avian flu, and swine flu as ‘dress rehearsals’ for ‘something more serious.’” H/t: John Fabian Witt

• Ellen Carol DuBois on The Thorny Road to the Nineteenth Amendment (Smithsonian).

• There's a ton of ideas flying around as instructors switch to online teaching. Our Twitter favorites: a timely assignment idea if your other lesson plans fall through, some online archives you may not know about, academic resources going open-access, and even kindly guest lecture offers. And of course: "I Will Survive" and the horse drawing.  Also, it turns out you aren't funnier than Arkansas Law's Alex Nunn.  (Wait for it!)

•  Last weekend we mentioned Reuel Schiller's chapter in Beyond the New Deal Order: U.S. Politics from the Great Depression to the Great Recession, edited by Gary Gerstle, Nelson Lichtenstein, and Alice O’Connor (University of Pennsylvania Press, 2019).  Here's another chapter of interest: Sophia Z. Lee (University of Pennsylvania): "Rights in the New Deal Order and Beyond."

• From the Washington Post's "Made by History" section: William Horne (Villanova University), "In the hands of racist officials, the covid-19 pandemic may be a weapon." 

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

Littlewood on Tiley and Schumpter on Tax History

Michael Littlewood,University of Auckland Faculty of Law, has posted John Tiley and the Thunder of History, which appeared in volume 9 of  Studies in the History of Tax Law (Hart, 2019), 55-91:

The aim of this paper is twofold – first, to present a selective overview of the work undertaken in connection with the series of tax history conferences initiated in 2002 by the late Professor John Tiley and hosted by the University of Cambridge; and, secondly, to examine Joseph Schumpeter’s claim that the ‘thunder of history’ can best be discerned by looking at taxation. In other words, the aim is to assess Schumpeter’s claim by reference to the work of what might be called the Tiley School of Tax History.

--Dan Ernst

Studies in the History of Tax Law

Just out from Hart is volume 9 of Studies in the History of Tax Law, edited by Peter Harris and Dominic de Cogan, Cambridge University:

These are the papers from the ninth Cambridge Tax Law History Conference, held in July 2018. In the usual manner, these papers have been selected from an oversupply of proposals for their interest and relevance, and scrutinised and edited to the highest standard for inclusion in this prestigious series.

The papers fall within five basic themes. Four papers focus on tax theory: Bentham; social contract and tax governance; Schumpeter's 'thunder of history'; and the resurgence of the benefits theory. Three involve the history of UK specific interpretational issues: management expenses; anti-avoidance jurisprudence; and identification of professionals. A further three concern specific forms of UK tax on road travel, land and capital gains. One paper considers the formation of HMRC and another explains aspects of nineteenth-century taxation by reference to Jane Austen characters. Four consider aspects of international taxation: development of EU corporate tax policy; history of Dutch tax planning; the important 1942 Canada–US tax treaty; and the 1928 UN model tax treaties on tax evasion. Also included are papers on the effects of WWI on New Zealand income tax and development of anti-tax avoidance rules in China.

--Dan Ernst

Kornhauser on Women, Lobbying and Tax, 1924-1936

Marjorie E. Kornhauser, Tulane University School of Law, has posted a draft of her book, American Voices in a Changing Democracy: Women, Lobbying, and Tax, 1924-1936, chapter by chapter, on SSRN.  We’re posting the abstract for the Introduction.  Click on the titles for abstracts for the other chapters.

Introduction

This ... introduces my book American Voices in a Changing Democracy: Women, Lobbying, and Tax, 1924-1936. The book focuses on the intersection of three areas of change in a time of great change: the role of women, the role of lobbying (broadly defined), and the role of taxation. These areas are once again in flux today. Each area is important in itself and each underwent significant change during this time period that affected important aspects of American life. Combined, the three areas illuminate the interrelated nature of society, economics, government and politics.

The book is not about lobbying, women, or taxation per se, but about the intersection of these three elements in a period of generally rapid change. Each element is important to democracy and each underwent great changes during the relevant years. Viewing the interaction of the three elements provides not just insight into each strand but expands our knowledge of democracy’s responses to change in an era similar to our current times in many ways: rapid technological change, demographic changes, economic stresses, and political change.

Tax-phobic readers should rest easy. The book is not about substantive tax; rather it uses tax as a medium to examine women and lobbying. Consequently, readers need not know any tax—or even be all that interested in tax. The book contains no technical tax or substantive tax policy. Rather, it concerns one aspect of the social construction of tax policy: the influence of mid-level lobbying on public opinion regarding taxes as manifest from one perspective—women’s political action. All the reader needs to know by way of background about taxes, is found in Part D of Chapter I. Although the tax-aholic will be unable to satisfy a technical tax thirst, the tax-ophile will still find a satisfying feast of material about the central role taxation plays in America.

This Introduction lays out the scope, purpose and organization of the book. It sets the stage by briefly describing the changing technology, culture and government that underlay the changes affecting women, tax and lobbying. It proceeds to explain the choice of the time period and concludes with a note about research techniques.

1.  Changing Times: Lobbying and Taxation 1924-1936

2.  Women, Women’s Clubs, Women’s Political Activity and Lobbying Generally: 1924-1936
     [The post on SSRN notwithstanding, this is indeed Chapter 2]

3.  Women's Tax Lobbying: 1924–1936

4.  Conservative Women’s Groups and Tax Lobbying

5.  Cathrine Curtis and the Women Investors in America

--Dan Ernst

Weekend Roundup

• Two items of interest from John Fabian Witt (Yale Law School): (1) He and other torts scholars (Mark Gergen, Paul Hoffman) have submitted an amicus brief to the U.S. Supreme Court in the current Section 1981 case Comcast v. National Association of African American-Owned Media. The brief challenges Comcast's characterization of a number of 19th-century torts cases and in doing so offers insights about the history of "but-for" causation as an element of negligence. (2) The latest issue of the New Republic includes his thoughts on "the shrinking legacy" of former Supreme Court Oliver Wendell Holmes, "first celebrity justice of the U.S. Supreme Court": why is Holmes veneration "in decline"?

• The 12th Annual Court History and Continuing Legal Education Symposium of the Historical Society of the U.S. District Court for the Southern District of Indiana will be devoted to the history of judicial confirmation.  The symposium includes the presentation, “Paths to the Bench: Southern District of Indiana Appointments from William E. Steckler to Gene E. Brooks,” by Doria Lynch and “a brief synopsis of the Chief Justice Robert B. Taney mural alternation project, which is part of the national trend to remove inappropriate historical symbols from public spaces.”  It will be held from 1 to 4:30 p.m. on November 1 in the Sarah Evans Barker Courtroom of the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis.   (The Indiana Lawyer.)

• John W. Kluge Center has announced the arrival of several scholars-in-residence at the Library of Congress.  The holder of the Kluge Chair in American Law and Governance is Andrea Campbell, the Arthur and Ruth Sloan professor of political science at MIT, who is working on a book project titled “How Americans Think About Taxes.” 

• Notorious RBG: The Life and Times of Ruth Bader Ginsburg is on exhibit at the National Museum of American Jewish History, 5th and Market Streets, Philadelphia, through January 12, 2020.

• Here at LHB we usually try to keep things nonpartisan, but we still feel obliged to note, in case you somehow missed it, the recent interview ASLH past-president Bruce Mann gave to CNN.  And, while we're on the subject of legal historian spouses to presidential candidates, thank you John Bessler for that shout out at the 2019 Hall of Fame Celebration of the Dubuque County Democratic Party.  DRE 

• Over at Jotwell: Binyamin Blum (UC Hastings) reviews Orna Alyagon Darr's Plausible Crime Stories: The Legal History of Sexual Offences in Mandate Palestine (CUP, 2018)

• ICYMI:  How Did Magna Carta Influence the U.S. Constitution? (History).  Frank Bowman on the history of impeachment in Rolling Stone.

• From the Washington Post's "Made by History" section: many historically informed observations about impeachment and President Donald Trump, including by Sidney Milkis (University of Virginia, Miller Center) and Daniel Tichenor (University of Oregon) (here); Thomas Balcerski (Eastern Connecticut State University) (here); and Doug Rossinow (University of Oslo) (here). Also Jessica Wang (University of British Columbia) on "How New York defeated rabies" and why "the city’s history with the disease offers a blueprint for eliminating deaths around the world." More.

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

Mehrotra on Fellows on Cardozo on the Welch Tax Case

Ajay K. Mehrotra, Executive Director of the American Bar Foundation and professor at the  Northwestern Pritzker School of Law, has posted "Life in All Its Fullness": Cardozo, Fellows, and the Critical Context of Welch v. Helvering," which appears in Pittsburgh Tax Review 16 (2019): 151-159:

This brief essay comments on Mary Lou Fellows recent contribution to the edited volume, Feminist Judgements. It explores Fellows's main contribution to a feminist re-evaluation of U.S. Supreme Court Justice Benjamin Cardozo's opinion in the canonical tax law case, Welch v. Helvering. The essay stress Fellows's innovative mix of sociolegal historical analysis and a humanistic law and literature approach. It also contends that Fellows may not go far enough in her feminist re-evaluation of Welch.

--Dan Ernst

Snape, de Cogan and friends on revenue cases

Landmark Cases in Revenue Law, co-edited by John Snape (University of Warwick) and Dominic de Cogan (University of Cambridge) is out with Hart Publishing. From the press:

In an important addition to the series, this book tells the story of 20 leading revenue law cases. It goes well beyond technical analysis to explore questions of philosophical depth, historical context and constitutional significance. The editors have assembled a stellar team of tax scholars, including historians as well as lawyers, practitioners as well as academics, to provide a wide range of fresh perspectives on familiar and unfamiliar decisions. The whole collection is prefaced by the editors' extended introduction on the peculiar significance of case-law in revenue matters. This publication is a thought provoking and engaging showcase of tax writing that is accessible equally to specialists and non-specialists.

Table of Contents after the jump:

Haara, "Bourbon Justice"

Via the New Books Network, we have word of a 2018 publication of interest from Potomac Books: Bourbon Justice: How Whiskey Law Shaped America, by Brian F. Haara (independent scholar). A description from the Press:

Bourbon whiskey has made a surprising contribution to American legal history. Tracking the history of bourbon and bourbon law illuminates the development of the United States as a nation, from conquering the wild frontier to rugged individualism to fostering the entrepreneurial spirit to solidifying itself as a nation of laws. Bourbon is responsible for the growth and maturation of many substantive areas of the law, such as trademark, breach of contract, fraud, governmental regulation and taxation, and consumer protection. In Bourbon Justice Brian Haara delves into the legal history behind one of America’s most treasured spirits to uncover a past fraught with lawsuits whose outcome, surprisingly perhaps, helped define a nation.

Approaching the history of bourbon from a legal standpoint, Haara tells the history of America through the development of commercial laws that guided our nation from an often reckless laissez-faire mentality, through the growing pains of industrialization, and past the overcorrection of Prohibition. More than just true bourbon history, this is part of the American story.

My favorite blurb from among the advance praise:

"Bourbon Justice: How Whiskey Law Shaped America actually digs into the law cases behind Bourbon, and presents the information in a very enjoyable read.  Who knew that reading about law cases could actually be interesting?"—New Bourbon Drinker

More information is available here. You can hear Haara talk about the book here.

-- Karen Tani

Avi-Yonah, Fishbien & Mazzoni on Surrey and Tax Policy

Reuven S. Avi-Yonah University of Michigan Law School, and two SJD candidates at Michigan Law, Nir Fishbien and Gianluca Mazzoni, have posted Stanley Surrey, the Code and the Regime:

Stanley Surrey (1910-1984) was arguably the most important tax scholar of his generation. Surrey was a rare combination of an academic (Berkeley and Harvard law schools, 1947-1961 and 1969-1981) and a government official (Tax Legislative Counsel, 1942-1947; Assistant Secretary for Tax Policy, 1961-1969). Today he is mostly remembered for inventing the concept of tax expenditures and the tax expenditure budget. This paper will argue that while Surrey was influential in shaping domestic tax policy for a generation and had an impact after his death on the Tax Reform Act of 1986, his longest lasting contributions were in shaping the international tax regime, since the concept of the single tax principle that shapes contemporary international tax reform efforts can be traced directly to his writing and activities both in academia and in the government.

This draft draws makes good use of Surrey's unpublished memoir but only passingly refers to the wider collection of Surrey Papers opened at HLS in 2017, used by George Yin in a recent article.  I'm no historian of taxation, but in my research on the early New Deal even I could spot Surrey's brilliance at the National Recovery Administration, as he took no pains to hide it, even when, as a matter of bureaucratic politics, he might have been prudent to have done so.

--Dan Ernst.  H/t: Legal Theory Blog

Arlyck on Civil Forfeiture at the Founding

Kevin Arlyck, Georgetown University Law Center, has posted The Founders' Forfeiture, which is forthcoming in volume 119 of the Columbia Law Review (2019):

Civil forfeiture is, in a word, controversial. Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections. Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears.

Alexander Hamilton (NYPL)

As this Article explains, forfeiture’s critics are right, but for the wrong reasons. Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows—for the first time—that forfeiture in the Founding era was significantly constrained. But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent. What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent—which they did, remitting forfeitures in over 90% of cases presented to them. The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law.

Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits. The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today. This is also an opportune moment to reexamine forfeiture’s historical bona fides. In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.

--Dan Ernst

Bernard Nordlinger: Washingtonian Lawyer

[The Historical Society of the District of Columbia Circuit has an excellent collection of oral histories of lawyers and judges active in the circuit.  Recently, it has asked interviewers to revisit their oral histories and prepare summaries for the Society’s website.  Here is the one I wrote from an oral history of Bernard I. Nordlinger, who was less a “Washington lawyer” than a “Washingtonian” one.  Devotees of the history of administrative law might want to check the interview itself for Nordlinger’s description of J. Forrester Davison, the Canadian coauthor of Felix Frankfurter’s casebook on the subject, as well as Davison’s choice of supplemental reading.]

“Washington lawyers,” who practice before the federal government, became a widely recognized branch of the American legal profession only with the dramatic expansion of the American state during World War II and the Cold War.  But the D.C. Circuit had long been and continued to be home to an older species of lawyers, many of them native to the District of Columbia, who served the legal needs of its residents much as the members of local bars elsewhere did.  Call them “Washingtonian lawyers.”  Of these, one of the most interesting was Bernard I. Nordlinger (1909-2001), because his roots in the District were so deep, because his Jewish identity made him a critical observer of as well as participant in the life of the local bar, and because he witnessed the rise of the “Washington lawyers” without becoming one himself.

“Third generation Washingtonian” was how Nordlinger described himself on his resume, just after his name and place and date of birth.  His ancestors emigrated to the United States from middle Europe before the Civil War, fought on both sides of that conflict, and then settled in the District.  For decades his family owned a shoe store on M Street in Georgetown, lived around the corner, attended the city’s oldest synagogue, the Washington Hebrew Congregation.  His father expected “Buck” to take over the store, but from an early age he wanted to be a lawyer.  “I just never had anything else in mind.”  He led his class when he graduated from the George Washington University Law School in 1933.

Nordlinger was more fortunate than many entering the legal profession in the depths of the Great Depression, because he was already been clerking for Milton King, an established practitioner who asked him to become his partner.  King’s social connections brought in some clients, including George Marshall, the owner of the Washington Redskins,  Still, he scrambled for all kinds of legal business and witnessed firsthand the gaucherie of the Police Court.  That still left time for getting the latest from his brothers at the bar over lunch or attending court when Frank Hogan or some other spellbinder was in action.  Excluded from lawyers’ social clubs because of his religion, he nonetheless participated in the Bar Association of the District of Columbia enthusiastically because of the camaraderie of its annual meetings and the opportunity the group afforded for legal reform, including replacing the District’s hopelessly unwieldy corporation laws.  He became its president in 1972, just in time to resist, unsuccessfully, the establishment of a mandatory or “unified” bar.

Nordlinger grew professionally over the course of his career.  As estate and gift taxation increasingly affected his clients, he got an LL.M. on the subject from Georgetown Law.  The instruction in taxation he most vividly remembered, however, was an hour’s discussion of a complex case with the great tax lawyer Robert N. Miller.  Miller, who refused compensation for the session, listened patiently, acknowledged that the matter was difficult–he likened Nordlinger’s situation to learning to play the “violin on a Stradivarius”–but told Nordlinger he did not need anyone’s help and was handling it well.

As a thirty-year-old father of two, he thought the odds of his conscription were low; still he was in the auditorium on October 29, 1940, when his number came up seventh in the nation’s first peacetime draft.  Commissioned a lieutenant in the U.S. Navy Reserves, he was assigned to a naval procurement unit.  The financial education he acquired would prove invaluable in his postwar career, which included service as an officer of local banks and savings and loan associations.  His service had other unexpected results.  Shortly after Nordlinger left the service, a lawyer he knew from the Navy came to his office, still in uniform, and asked for a position after his imminent discharge.   Nordlinger advised the man, Richard Milhous Nixon, to try his luck back in Whittier, California.

Another wartime connection proved more eventful.  After the war, an electrical engineer who was his superior in a unit tasked with terminating naval contracts hired Nordlinger to reorganize his company.  When he then asked him to become its general counsel, Nordlinger declined: he would have to move to Chicago, and, as he later put it, “my home was here.”  Nonetheless, the engineer hired him to defend his company in a major antitrust prosecution.  The experience Nordlinger acquired led to more antitrust cases, including a landmark case with the the National Football League as his client.

Ultimately, Nordlinger concluded such cases required a bigger staff than his firm possessed.  The realization made apparent to him a path not taken.  After the war, Jews and other ethnic outsiders long excluded from New York’s corporate law firms had no difficulty finding clients needing representation before the federal government.  Starting from beginnings hardly less humble than Nordlinger’s, some had built major firm’s in the nation’s capital.  At first, he later recalled, Henry Fox was just one of “two young boys in a one-room office of a man named Jesse Miller,” who had practiced in Washington since 1920.  But Fox took “the risk of promising huge salaries to people who graduated from good schools” and acquired excellent reputations in government service.  Today, his firm, Arent Fox, has hundreds of lawyers and a global reach, while King & Nordlinger is much smaller, with a local practice.

Nordlinger sometimes spoke of his failure to build a large firm with regret.  “We never did that, and I would say it’s my fault,” he said on one occasion.  “I didn’t have enough early training to have the depth of vision, the business horizons, to do what could have been done.”   But the founders of Arent Fox were not native Washingtonians; in their formative years they were not inspired, as Nordlinger had been, by lawyers who were lions not only in the law but in the civic, religious, and philanthropic lives of their community.  “When I was young and coming along,” he once explained, “I had great ambitions to be like so many lawyers” who modeled for him ideals of practice and of conduct.  Nordlinger’s many professional honors and suggest he became such a model for others during his lifetime, and his career remains instructive today.

--Dan Ernst