Nelson's "Concise History of American Law"

We note the posthumous publication of the late William E. Nelson's Concise History of American Law (Oxford University Press):

A Concise History of American Law traces the development of the US legal order from the colonial era to the twenty-first century. Emphasizing the essential role of the common law--derived from judicial precedent, rather than legislation--eminent legal historian William E. Nelson examines the foundations of the American rule of law and its interactions over time with political, economic, and societal transformations. Synthesizing the broad structural, institutional, and ideological changes embedded within American legal history illuminates the significant role courts have played in structuring politics and society. Nelson's accessible chronological narrative details how the rule of law has both facilitated change, by protecting the rights of those who advocate for it, and inhibited change, by acting as a conservative bulwark protecting the rights and property of the rich and powerful. Weaving this fundamental tension between law and politics into his pithy account of how the law was made and practiced over three centuries of American history, Nelson has produced an invaluable guide to the intricate evolution of the modern US legal system.

--Dan Ernst 

Patrick on fortune-telling

Out now by Jeremy Patrick (University of Southern Queensland) is Faith or Fraud: Fortune-Telling, Spirituality, and the Law, published by UBC Press. The book includes a history of the regulation of fortune-telling across the common law world. From the publisher: 

The growing presence in Western society of non-mainstream faiths and spiritual practices poses a dilemma for the law. If a fortune teller promises to tell the future in exchange for cash, and both parties believe in the process, has a fraud been committed? Should someone with a potpourri of New Age beliefs be accorded the same legal protection as a devout Catholic?

Building on a thorough history of the legal regulation of fortune-telling laws in four countries, Faith or Fraud examines the impact of people who identify as “spiritual but not religious” on the future legal understanding of religious freedom. Traditional legal notions of religious freedom have been conceived and articulated in the context of monotheistic, organized religions that impose moral constraints on adherents. Jeremy Patrick examines how the law needs to adapt to a contemporary spirituality in which individuals select concepts drawn from multiple religions, philosophies, and folklore to develop their own idiosyncratic belief systems.

Faith or Fraud exposes the law’s failure to recognize individual spirituality as part of modern religious practice, concluding that the legal conception of religious freedom has not evolved to keep pace with religion itself.

Law and religion scholars in the United States, Canada, and Australia will find much to recommend this work, which also contains valuable material for British law and religion specialists and sociologists of religion.

Praise for the book:

 "Faith or Fraud is an ambitious work that fills a major gap in the literature about religious freedom and fortune-telling." -Danielle N. Boaz

"This book situates 'fortune-telling' as an unorthodox religious belief at the margins of current definitions and explores how religious freedom rights apply to this marginal practice. It is an excellent piece of legal scholarship in an area that has rarely been studied before." -Neil Foster

Further information is available here.

--Mitra Sharafi

A Better Book: Living Descendants

              Three and a half years ago, I had the good fortune to join Barbara Welke, Mitra Sharafi, and Daniel Sharfstein at the 2015 Annual Meeting of the American Society for Legal History for a roundtable on working with the living descendants of historical actors.  As we explained:

Online databases and communication technologies, the transnational turn, the study of memory and agency, and genealogy all lead legal historians to work with descendants of subjects. . . . Scholar-descendant exchanges shape and enrich legal history, making the past recoverable and vivid.  Joint projects that broaden arguments and audiences can result. . . . The scholar offers new strands in family or community histories.  Descendants’ experiences and understandings reveal impacts, limits, and reverberations of legal dynamics or push scholars to move beyond legal frames in productive and unfamiliar ways.

I joined the panel to discuss the topic of today’s post, my experience working with a descendant of a central character in Almost Citizens. The story began around eight years ago.

Just weeks after receiving final approval of my dissertation, which centered on a 1904 Supreme Court litigant names Isabel Gonzalez, I received an email from Belinda Torres-Mary.  She was also researching Isabel Gonzalez and had been for years.  I held my breath.  She was fascinated to learn new details about Gonzalez’s unsuccessful experience as the first Puerto Rican person to demandU.S. citizenship from the Supreme Court.  She was not an academic historian.  Gonzalez was her great-grandmother. Belinda was a passionate genealogist. Exhale.

Soon, Belinda and I were trading research leads.  She told me anecdotes.  Tacking back and forth, we discovered many more records. A long-passed woman I had spent years getting to know came to life once again, now in a new way.  As a result, the book’s account of Gonzalez is much richer than the dissertation’s.

As our collaboration deepened, we discussed how we each understood Isabel Gonzalez.  I saw her as a tragic hero of sorts. When she sought to migrate from San Juan to a better life in New York, Ellis Island inspectors discovered that she was an unmarried mother who was also pregnant and ordered her to be deported as an undesirable alien. Gonzalez filed a suit that eventually reached the Supreme Court. She argued that Puerto Ricans could not be deported because they had become U.S. citizens after the annexation of Puerto Rico in 1899. The claim tapped into longstanding interpretations of the Fourteenth Amendment as making citizens of all Americans other than American Indians. But the justices ruled more narrowly: Puerto Ricans were not aliens, hence not subject to deportation. Nothing needed to be said regarding citizenship. The tentativeness was typical of the early-twentieth-century Insular Cases, through which the Court contributed to a sea change in constitutional law alongside lawmakers, bureaucrats, presidents, and private actors. But the sum result was momentous, a turn away from the Reconstruction Amendments, rights, citizenship, and statehood and toward colonialism.

Belinda declared Gonzalez to be the Puerto Rican Rosa Parks. Initially, the comparison typified for me the difference between our projects.  Belinda saw her ancestor as a heroic figure in a long U.S. march toward inclusion and liberty.  If asked, I probably would have said that even Rosa Parks was no Rosa Parks.  Certainly, the professional historian in me felt compelled to emphasize differences between the women.  Gonzalez’s activism had not made her famous.  It had not arisen out of a commitment to a mass social movement or come to be supported by one.  She had engaged in legal maneuvers rather than direct action.  She did not prevail.  The unmarried and pregnant Gonzalez was not a model of respectability.  She was from a different community and drew on a heritage of Spanish rather than U.S. rule.  It was not clear that she had African ancestry; she seemingly never identified as of color.

              But the deeper I have delved, the more wisdom I have found in Belinda’s analogy.  However Gonzalez self-identified, racial prejudice lay behind the effort to deny her U.S. citizenship and behind the Court’s tepid response to her challenge.  Both controversies were profoundly shaped by being launched by women.  Law played crucial roles in both cases, in part because its future shape was uncertain.  Although neither dispute resulted in a constitutional ruling, both quickly came to be understood as signal events in processes of major constitutional change.  Both cases asked federal courts to reinvigorate legal legacies of Reconstruction.  Gonzalez and her allies deployed honor in ways that prefigured later uses of respectability.  They argued that Puerto Ricans’ honor made them worthy of equal treatment, and that denial of such treatment unjustly dishonored them.  In both cases, a modestly situated actor meaningfully influenced constitutional change.  Both disputes were key events in iterative processes of legal transformation involving a diverse array of officials.  And as recent events sharply remind us, the constitutional revolutions that resulted in both cases were incomplete and unstable.

              Working with Belinda also made my process of researching Almost Citizens feel similar to my experience of reading good fiction.  The book’s characters, themes, insights, and events kept overrunning the interpretive bounds within which I sought to contain them.  I found the world that emerged from the archives to be immersive and consuming.  I aimed to capture these novelistic sensations with a character-driven approach that attended to narrative and people as much as it did to analysis and argument.  Of course, I did not have the luxury of inventing plot turns and characters at will.  But I did have characters who were real and compelling.  Their struggles helped form the world we now inhabit.  For Belinda, that was doubly true.  Isabel Gonzalez’s decisions brought Belinda’s ancestors into existence.  Unsurprisingly, strongly felt familial ties linked great-granddaughter to great-grandmother.  Perceiving Belinda’s passion for Gonzalez’s story inspired me to deepen my depictions of Gonzalez, her choices, and their consequences – all to the book’s benefit.

That Belinda and I even met reflects a sea change in the practice of history.  Since I began graduate school, innumerable primary documents have become text-searchable online.  Books, census manuscripts, passenger manifests, judicial documents, legislative hearings, and newspaper articles that required research trips, microfilm readers, hours of painstaking review, and no small amount of luck now spit up information on a person or theme of concern with little more than an entry in a search box.  In many cases, the impetus behind this mass digitization and metadata creation has not been the needs of academic historians, but the demands of genealogists and the growing sophistication of character recognition software.  Increasingly, scholars seeking to learn about particular historical figures find themselves working in tandem or collaboration with genealogists investigating their roots.  One additional reason is that the digitization revolution has made scholars' output ever more accessible, as Belinda discovered when she began searching mentions of her great-grandmother.

              The rise of genealogy and new research technologies has transformed the ethics of researching and telling history. I am lucky not to have encountered the more acute conflicts that can arise. Belinda encouraged me to make my own decisions about what to include in the book and how. Here, it helped that Belinda had developed her own writerly voice.  She expressed aspirations soon after we met to write a young adult biography of Isabel Gonzalez.  I think it’s a great idea. With any luck, I’ll interest her in letting me assist while she takes her turn in the author’s chair.

Even in functional partnerships, working together involves give, take, and the question of whether each person is doing their share of both. Early on, I worried that I was more of a taker. Belinda offered up family history that I had no other way to access.  To my delight, I came to realize that the scarce commodity that I could contribute was undigitized archival material and historical methods with which to make better use of what was online. I was pulling my own weight because history had something unique to contribute.

If I stumbled, it was in over-skepticism. When Belinda recounted the family lore that Gonzalez had married a gentleman before migrating to New York, my first thought was that many more families claim ancestral earls than actually have them. Silly me. As our research continued, Belinda remembered that the story was told in Spanish. Gonzalez had married a “caballero.” Perhaps that was a last name, not an adjective? Some searches in digitized church and county records confirmed it. Gonzalez’s first husband, Juan Caballero, died of tuberculosis in his early 30s, shortly after Gonzalez became pregnant with his second child.

              Working with Belinda was also a reminder that Gonzalez has many other living descendants. Some knew her well. All share in her history. Few would accept every interpretive choice that I made. Yet I am obliged to them, especially Belinda. I hope they recognized Isabel Gonzalez in what I wrote, even as they also saw her in a new light.

--Sam Erman

A Better Book: The ASLH Book Series

              Perhaps the most important decisions of my transition from dissertation to book was mine to publish with the American Society of Legal History’s book series at Cambridge University Press and theirs to have me.  In a word, the reason was: editing.  In a person, it was: Sally Gordon.  More specifically, I gained a mentor, a booster, a reader, a quarterback, and a promoter.

              From the outset, Sally shared and shaped my vision for the project. I first reached out to her about the book on the suggestion and introduction of my mentor Dan Ernst, himself a former editor of the series.  To my amazement, she read my entire dissertation with her discerning and constructive eye. She saw the same promise in the dissertation that I did. It already had characters, a narrative, and evidence that constitutional change sometimes occurred outside of courts. The promising strands it had left dangling included the place of Reconstruction in U.S. empire, mechanics and details of who drove what legal change how, the relationship between Puerto Ricans and both American Indians and mainland women and minorities, and the shadow that U.S. colonial rule in the Philippines cast over everything.

              An unexpected (but not surprising) benefit of publishing with the ASLH series is that it brings instant credibility with society members. At the annual meeting of the American Society for Legal History, Sally also introduced me as an up-and-coming scholar with plans to publish in the series.  Anyone who’s seen Sally in action knows that means meeting a lot of society members. I’ve always felt welcome at the annual meetings, but since then the meetings have been a sea of friendly faces.

               Joining the series also meant receiving a level of editing and mentorship that I associate with literary presses of yore, not the tight margins of modern academic publishing.  Almost Citizens was my first book, so I had no experiences identifying – much less making – many of the decisions that book writing  requires. Fortunately, as I wrote (and rewrote), Sally read (and re-read)–the book proposal, an annotated table of contents, individual chapters, and finally the full manuscript.  Every major element of the book bears her mark. Through emails, phone calls, and coffees, she pressed me to specify and “surface” my biggest claims and to open my geographic and temporal lenses wide enough to bring those claims fully into focus. We discussed what books I liked, how they were structured, what writerly voice the authors had employed, who read those volumes, and who might read mine.

Equally important, Sally was an enduring source of encouragement. She kept me optimistic and energized throughout the long and lonely endeavor that is book writing. Our conversations spanned years. During each she reminded me what I had accomplished, then identified the further progress now within reach.

As my draft chapters accumulated, Reuel Schiller joined Sally as a co-editor of the series, to its and my good fortune. Sally and Reuel were a crack pair of text massagers and arrangers. They also knew how to leverage their insights. When they saw room for improvement but lacked the time to provide detailed feedback (the series had other authors; they had day jobs–and lives), they recommended that I use development editors (a subject of an upcoming post).

Working with the series also meant that I had experienced editors in my corner as I navigated the unfamiliar, far-from-intuitive publishing process.  When I negotiated my contract, Sally knew which details mattered: commit to a number of images and ask for preapproval; ensure that the series can choose the copy editor and indexer; choose a publication deadline that can slip a month or two without endangering your tenure case.  Someone had to pay for editing, indexing, and the like. The series helped me ask my home institution for the funds by providing me evidence that peer institutions were already providing such funds to their junior faculty. When I became concerned with one or another of the press’s decisions, Sally and Reuel helped me sort out which items were worth raising in what ways. They were always willing to speak on my behalf to Cambridge, with whom they maintained a strong and cooperative relationship.

Mostly, the series steered me away from pitfalls. I never had to contemplate the disadvantages of a machine-made index because my contract let me hire the wonderful Derek Gottlieb. Where some authors tell horror stories of overseas copy editors who insert more typos than they correct, the series snagged for me the excellent Julie Hagen.

              With my book now out under the series imprint, I can add that I am happy being judged by the company I keep. Cambridge University Press’s august imprimatur makes it more likely that readers will pick up the book. The American Society for Legal History is my foremost academic home. It has also published many of the legal historians that I most admire, including the first books of several of the best up-and-coming scholars in the field.

--Sam Erman

Blending Business History and Legal History

Thank you to Karen, Dan, and Mitra for inviting me to participate in the Legal History Blog.

To get started, I want to introduce what I’ve been working on for the better part of a decade, my recently published book, American Fair Trade: Proprietary Capitalism, Corporatism, and the "New Competition," 1890-1940 (CUP, 2018). I began this research project in graduate school at the University of Virginia and, in another post, I plan to discuss how I came to this topic. I’ll also offer some advice to graduate students looking for dissertation topics. Today, however, I’d like to tell you a bit about the book and then reflect on writing in two disciplines – legal history and business history. Interdisciplinary work posed some methodological challenges but also opened opportunities for analytical reinterpretation of historical events. For historians of regulation, it seems critical to incorporate both the social scientist’s approach to business history and the institutionalist perspective present in legal historian’s methods.

American Fair Trade argues that trade associations of independent proprietors acted as regulatory intermediaries between individual firms and government agencies in the fifty years before World War II. In doing so they facilitated the growth of the administrative state and altered the legal meaning of “fair competition.” Rather than viewing the history of American capitalism as the unassailable ascent of large scale corporations and free competition, American Fair Trade shows that trade associations lobbied and litigated to reshape antitrust law to their benefit. Cooperation among businesspeople and state regulators legitimized codes of fair competition that prohibited certain business practices, such as sales below cost or secret rebates, and standardized production and retailing specifications. New Deal partnerships in planning borrowed from those efforts to manage competitive markets, but ultimately, distended and discredited the fair trade model by incorporating large scale businesses and mandating economy-wide trade rules that sharply reduced price competition. State-level fair trade laws persisted through the 1950s, but their popularity waned with consumers and jurists thereafter.

To some business historians, the supposed failure of the fair trade movement may appear inevitable. One might reasonably believe that the early twentieth century’s independent proprietors – such as specialty producers of foodstuffs, coffees, and make-up as well as independent retail druggists and grocers – never stood a chance against the superior efficiencies of mass production and retailing with its improved economies of scale and scope. Those technological imperatives, that narrative goes, acted as a driving force behind historical change, at least according to a simple caricature of the Chandlerian paradigm. If viewed from that lens, it is easier to dismiss the proponents of fair trade contracts and the fair trade laws that enforced them as rent-seeking, backwards, and merely nostalgic for a bygone era. (For more on Alfred Chandler and the Chandlerian paradigm, see Richard John's historiography here, which appeared in the Business History Review.)

Of course I would not allege that the Chandlerian framework would require such a simple critique, nor would I assert that all business historians subscribe to the Chandlerian paradigm even in its more sophisticated form of historical analysis. Historians like Philip Scranton have pioneered alternative narratives that emphasize the continued importance of independent proprietors, entrepreneurs, and craftspeople. The point here is that there is a technological determinism that we all must confront, regardless of the history we’re writing.

Here’s where I think that new opportunities emerge for historians of regulation to overlay the interpretative lens of legal history onto business history’s deep studies of firm-level challenges and changes. Legal historians offer a skill set adept in analyzing how the law shapes markets through procedures, rules, and enforcement. They also demonstrate how legal change happens over time by investigating key litigants, lawmakers, and mezzo-level bureaucrats who propel institutional change forward. Likewise, business historians offer key analytical insights on how private firms govern markets through inter-firm contracts, trade association rules, and industry norms. Those firms and associations often inform the law-making process – we can refer to it as capture or coordination of the regulatory process; examples abound of both. But, only by taking both fields’ analytical frameworks and emphasis on particular actors (policymakers and regulators, on the one hand, and firms, on the other) can historians of regulation produce truly robust explanations of institutional and economic change. (Ed Balleisen has written extensively on the history of regulation, blending business and legal history. Several other historians have as well, such as Lou Galambos, Naomi Lamoreaux, Brian Balogh, Victoria Saker Woeste, to name just a few.)

American Fair Trade blends legal and business history to construct an institutional analysis of U.S. competition policy between 1890 and 1940. It focuses not on the large scale firms and the trust-busting cases that have garnered so much attention, but rather it emphasizes the role that independent proprietors played in shaping private markets and influencing public law. It demonstrates the surprising flexibility of early twentieth century antitrust policy and the unexpected partnerships between business groups and federal regulators. The institutional story displaces the myth of free market competition and, I hope, leaves us with a more thorough understanding of how law and society reflected time- and place-specific rules governing fair competition, which – at least for some time – ordered markets.

Malhotra, Isitt and friends on disability

Ravi Malhotra, University of Ottawa and Benjamin Isitt have co-edited Disabling Barriers: Social Movements, Disability History, and the Law, now out with UBC Press. From the publisher: 

Disabling Barriers analyzes issues relating to disability at different moments in Canadian and American history. In this volume, legal scholars, historians, and disability-rights activists demonstrate that disabled people can change their social status by transforming the political and legal discourse surrounding disablement.

Traditionally, disabled people were regarded as objects of pity and condescension. The rise of the social model of disablement – which identifies barriers, rather than physiological impairments, as the main problem facing people with disabilities – has resulted in a dramatic reconfiguration of how we regard political and legal structures affecting people with disabilities. Employing tools from the fields of law and history, this volume explores how disabled people have been portrayed and treated in a variety of contexts, including within the labour market, the workers’ compensation system, the immigration process, and the legal system (both as litigants and as lawyers).

This original contribution deepens our knowledge of the role of people with disabilities within social movements in disability history. The contributors encourage us to rethink our understanding of both the systemic barriers disabled people face and the capacity of disabled people to effect positive societal change.

This book will be of interest to scholars in the fields of disability studies, disability history, and disability law, as well as to disability activists in Canada and the United States.

Praise for the book:

"This diverse collection was a pleasure to read. The editors’ disparate backgrounds deliver on a promise suggested from the start: to launch a deep conversation between legal scholars and historians on the premises and promises of social movements where disability has been concerned." -Sue Schweik

"Disabling Barriers examines the concept of disability in relation to broader themes of political economy and social theory. The contributors take an explicitly interdisciplinary approach, examining disability in relation to class and gender, while always remaining aware of the personal issues associated with disability. The essays examine a variety of subjects, some well known, others much less so, but always with fresh approaches and interesting insights. The book provides a valuable addition to the field and deserves a wide audience." -Steven Noll

Here is the Table of Contents:

Foreword / Bryan D. Palmer 

Introduction: Bringing History and Law to Disability Studies / Ravi Malhotra and Benjamin Isitt 

Part 1: Historical Debates on Work and Disability
1 Bearing the Marks of Capital: Solidarities and Fractures in E.T. Kingsley’s British Columbia / Mark Leier
2 Employers, Disabled Workers, and the War on Attitudes in Late Twentieth-Century Canada / Dustin Galer
3 Gender and the Value of Work in Canadian Disability History / Geoffrey Reaume 

Part 2: Debates in Disability Studies
4 Dancing with a Cane: The Public Perception of Franklin Delano Roosevelt’s Disability / Anne Finger
5 Disability in Motion: Aesthetics, Embodiment, Sensation, and the Emergence of Modern Vestibular Science in the Nineteenth Century / Mark Walters
6 “Of Dark Type and Poor Physique”: Law, Immigration Restriction, and Disability in Canada, 1900–30 / Jen Rinaldi and Jay Dolmage 

Part 3: Legal Debates
7 Battling the Warrior-Litigator: An Exploration of Chronic Illness and Employment Discrimination Paradigms / Odelia R. Bay
8 Towards Full Inclusion: Addressing the Issue of Income Inequality for People with Disabilities in Canada / Megan A. Rusciano
9 Compensating Work-Related Disability: The Theory, Politics, and History of the Commodification-Decommodification Dialectic / Eric Tucker

Further information is available here.