Zoom Symposium: British Crosswalks and American Airlines

[We have the following announcement.  DRE]

Law, Culture, and the Humanities is sponsoring a symposium via Zoom, Wheels and Wings: Law, Regulation, and Mass Mobility in the 20th Century, on November 20 @ 12:00 pm – 1:30 pm.  Eva Vaillancourt (History, UC Berkeley) and Joanna Grisinger (Law, Northwestern University) bring their recent research projects into conversation.  Register here.

Eva Vaillancourt, Dept. of History, UC Berkeley.  "The Birth of the British Crosswalk: Mystical Lines, Mechanical Obedience, and the Puzzle of Law-as-Infrastructure”

When the first pedestrian crosswalks appeared in Britain in 1934, most people found them baffling, if not a little absurd: how do painted lines on the pavement protect you from oncoming cars? They don’t, one comedian remarked: “But if a car kills you while you are standing in it, the police won’t blame you.” This paper follows the crosswalk’s early career in British tort law, where the meaning of this new technology was hashed out over a series of cases in the late 1930s and 40s. Debate turned on questions of the body in time and space (e.g. How close to the crosswalk does a car have to be before the pedestrian’s decision to assert her right-of-way becomes “unreasonable?”), but also on wider questions about law itself. Is following the state’s rules enough to satisfy your duty of care to your fellow man? Can state regulation replace moral and situational judgment, effectively “automating” the unstable human relationships on which social reproduction depends? Finally, can we rely on legal rules to deliver a person safely from one side of the street to the other, in the same way we’d trust a bridge to deliver us safely across a river? In short, are legal rules a form of infrastructure?  

Joanna Grisinger, Center for Legal Studies, Northwestern University.  “The Highs and Lows of Airline Travel: Consumer Rights, Airlines, and the Civil Aeronautics Board”

In the 1960s and 1970s, as soon as Americans began traveling by air in record numbers, they began complaining about it. Passengers took offense at race discrimination, sex discrimination, discrimination against physically disabled passengers, discrimination against non-VIPs, delayed and cancelled flights, lost luggage, the lack of seatbelts in airplane bathrooms, and the absence of hot dogs from airline menus. Aggrieved passengers turned to the federal Civil Aeronautics Board, demanding that the federal government put passengers at the center of its regulatory efforts. This clash between competing definitions of the public interest forced the board to reorient its traditional reactive approach to enforcing the law, and to adopt more proactive measures that established rules for passengers and airlines alike.

Weekend Roundup

• Maximilian Del Mar, Queen Mary University of London, will present "Beyond Belief and Deeper than Argument: Character and Intellectual Historiography" in the Helsinki Legal History Series on Monday on April 29.  More.
  

• Holly Brewer, University of Maryland, on that historians' brief in the Trump immunity case (Maryland Today).
  

• The American Historical Association will conduct a Congressional Briefing “offering historical perspectives on federal safety regulations in transportation” on Thursday, May 9 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  More.
  

• Carol Anderson, Emory University; Orville Vernon Burton, Clemson University; Alexander Keyssar, Harvard University; and J. Morgan Kousser, Emeritus, California Institute of Technology, have signed a Historians’ Amicus Brief in Alpha Phi Alpha Fraternity, Inc., et al., v. Secretary of State of Georgia (Brennan Center). 
  

• 
  Rodger Citron reviews Gary Stein's in Justice for Sale: Graft, Greed, and a Crooked Federal Judge in 1930s Gotham (Verdict).
  

• "The Joseph Smith Papers Project has unveiled its latest historical study aid, Legal Records: Case Introductions. This compilation contextualizes Joseph Smith’s multifaceted interactions with the law, casting light on his roles as a plaintiff, defendant, witness, or judge in approximately 200 cases spanning the years 1819 to 1844" (Church News).
  

• Paul Finkelman makes the case for the landmark status of the  home of Alexander Clark, who brought Clark v. Muscatine (1868) to racially integrate the schools of Muscatine, Iowa (Bleeding Heartland).
  

• “Hardeep Dhillon says that a grossly racialised legal structure was put in place by the British government to compensate Europeans affected in the [Jallianwala Bagh] massacre while undervaluing the claims made by families of Indians killed or injured in the incident” (Indian Express).
  

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

Transportation Library Travel Grant

[We have the following announcement.  DRE.]

We are pleased to share that applications are open for the 2024-2025 Transportation Library Travel Grant.

The Northwestern University Transportation Library holds one of the largest transportation research collections in the world, covering all modes of transportation including aviation, rail, highway, public transit, and pedestrian and bicycle transportation. In addition to our technical collections that support research on current transportation issues, the library maintains special and archival collections such as timetables, passenger ephemera, and rare books and journals. It also holds a substantial collection of mid-19th to early 21st century transportation annual reports, and one of the most complete U.S. Environmental Impact Statement (EIS) collections in existence.

This research grant was established in 2021 to facilitate and support research projects that significantly benefit from substantial onsite use of the Transportation Library’s unique technical, special, and archival collections.

Funding.  Each year we will award one or more grants, up to a total of $3,000.  Grants will be awarded to reimburse expenses for transportation, accommodations, and meals for one or more on-site visits to Northwestern University Libraries.

Eligibility.  Open to academic and independent researchers. We encourage applications by those working in traditional academic practice as well as those whose research is interdisciplinary, or oriented towards creative arts and practices.  There are no restrictions as to the applicant’s nationality or academic status.    Research may be in any field supported by the collections of the Transportation Library. At the discretion of the selection committee and Northwestern University Libraries, the grant may be awarded to an individual applicant, a team, or divided among multiple applicants and/or teams. Further, if a suitable recipient is not identified among the applications received, we reserve the right to withhold the grant for that particular year.  Applicants who are not awarded the grant in a specific year may resubmit proposals in following years without prejudice.  An applicant may receive only one award for any one project as determined by the selection committee and Northwestern Libraries. Researchers affiliated with Northwestern University will not be considered for this travel grant.

How to apply.  To apply, please submit the following:

• A project proposal (1,200 words max) that describes the proposed research; explains the significance of the collection materials to the project; [and] proposes specific outcomes (e.g., dissertation, article, book, creative or artistic work) that will result from this research
• A curriculum vitae
• A detailed budget indicating the total amount requested with itemized list of projected expenses for transportation, accommodations and meals. For meals and incidentals, applicants should use the U.S. General Services Administration Per Diem Rates for Meals & Incidentals (M&IE) for Chicago. Applicants should indicate any other sources of funding that will be applied to the project, if applicable. For additional information on planning a budget, see allowable expenses and Out-of-Town Visitor Resources.

Applicants should arrange for one (1) letter of recommendation from someone qualified to judge the quality, feasibility, and significance of the proposal and the qualifications of the applicant to successfully complete the project to be sent in support of their proposed project. Those writing recommendations should submit their letters directly to librarygrants@northwestern.edu.

Applicants should submit the research description, curriculum vitae, and budget by e-mail attachment (PDF format) to librarygrants@northwestern.edu.

Please note: The selection committee is unable to provide feedback with regard to unsuccessful applications.

Expectations.  All grant awardees will be required to submit receipts for expenses incurred and will be reimbursed, in accordance with Northwestern University policies. For meals and incidentals, we require that recipients use the U.S. General Services Administration Per Diem Rates for Meals &Incidentals (M&IE) instead of itemized receipts. Reimbursement requests must be made within 30 days of last day of visit.

Grant awardees must conduct their research visit within the academic year following the grant being awarded (between September 1st and August 1st).

Upon completion of the research, grant awardees will be required to submit a brief report [1-2 pages] summarizing the use of the collection(s) and how the visit benefited their research to librarygrants@northwestern.edu.

Questions?  Contact librarygrants@northwestern.edu.

Risinger on Smith v. Rapid Transit

D. Michael Risinger, Seton Hall University School of Law, has posted Off the Rails: The Surprising Story of Smith v. Rapid Transit, Inc.:

A large percentage of lawyers of my generation and later would recognize the case of Smith v. Rapid Transit, Inc. because the short opinion of the Massachusetts Supreme Judicial Court was presented in its entirety in leading casebooks. The reader may recall that, according to the opinion, the evidence presented by the Plaintiff, Betty Smith, was insufficient to raise a jury issue on the question of Rapid Transit’s ownership of the bus which she testified ran her off the road and caused her to collide with a parked car. However, a close look at the realities of transportation in Winthrop in 1941 makes it almost certain that any bus operating in Winthrop at 1:00 a.m. on the date and at the place of the accident was indeed a Rapid Transit bus. But beyond that, newly discovered material casts a surprising light on the conventional understanding of the dispute that led to the opinion.

--Dan Ernst

Vinsel, "Moving Violations"

We missed this book when it came out last summer (thanks to New Books in Law for alerting us to it now): Lee Vinsel, Moving Violations: Automobiles, Experts, and Regulations in the United States (Johns Hopkins University Press, 2019). Here's description from the Press:

Regulation has shaped the evolution of the automobile from the beginning. In Moving Violations, Lee Vinsel shows that, contrary to popular opinion, these restrictions have not hindered technological change. Rather, by drawing together communities of scientific and technical experts, auto regulations have actually fostered innovation.

Vinsel tracks the history of American auto regulation from the era of horseless carriages and the first, faltering efforts to establish speed limits in cities to recent experiments with self-driving cars. He examines how the government has tried to address car-related problems, from accidents to air pollution, and demonstrates that automotive safety, emissions, and fuel economy have all improved massively over time. Touching on fuel economy standards, the rise of traffic laws, the birth of drivers' education classes, and the science of distraction, he also describes how the government's changing activities have reshaped the automobile and its drivers, as well as the country's entire system of roadways and supporting technologies, including traffic lights and gas pumps.

Moving Violations examines how policymakers, elected officials, consumer advocates, environmentalists, and other interested parties wrestled to control the negative aspects of American car culture while attempting to preserve what they saw as its positive contributions to society. Written in a clear, approachable, and jargon-free voice, Moving Violations will appeal to makers and analysts of policy, historians of science, technology, business, and the environment, and any readers interested in the history of cars and government.

A few blurbs:

"A truly excellent book: well written, deeply researched, exceptionally wide-ranging, and compelling in both its large interpretations and its detailed assessments. Moving Violations will stand as a pioneering and authoritative treatment of government regulation across the long twentieth century." — Steven W. Usselman

"From traffic lights to emission controls, airbags, and autonomous vehicles, Vinsel studies how varying types of automobile regulation, broadly construed, affected technological innovation. Ultimately, he shows that well-crafted regulations can serve the public good and encourage technological creativity. This engaging book is highly recommended for historians, scholars of innovation, and policymakers." — JoAnne Yates

More information is available here. An interview with Professor Vinsel (Virginia Tech) about the book is available here.

-- Karen Tani

Russell on Streetcar Torts

Thomas D. Russell, University of Denver Sturm College of Law, has posted Blood on the Tracks: Turn-of-the-Century Streetcar Injuries, Claims, and Litigation in Alameda County, California:

Richmond Road 1887 (NYPL)

Streetcars were great American tortfeasors of the turn-of-the-century, injuring approximately one 331 urban Americans in 1907. In this empirical study, I consider the entire run of streetcar injuries, claims, trial-court suits, and appeals. My conclusions are based upon data drawn from the claims department records of Alameda County's principal street railway company, from all of the personal injury suits filed in the county's Superior Court, from all appellate cases involving the street railway company, and also from other sources concerning the street railway industry.

Plaintiffs in street railway cases very rarely won their cases against the company, and when they did, they won little money. In terms of the bite taken out of the street railway company, I characterize the Superior Court as a flea. I argue that Professor Gary Schwartz was wrong to characterize tort law as generous and that Judge Richard Posner is wrong to call tort law efficient. Like Professor Lawrence M. Friedman and Morton Horwitz, I see the amount taken from the street railway companies as quite small, but I see no evidence of deliberate efforts to subsidize the industry.

I argue that the term "dispute pyramid," which is common among Law & Society scholars, is misleading. I propose that we instead think in terms of a salmon run, with very large drop-offs from the levels of injuries to claims and, especially, to litigation.

I also examine in detail the operation of the street railway's claims department. I describe the relationship of the amount of money paid out through the claims department to the amount paid out in Superior-Court judgments and costs. I show that the average amounts of money that successful claimants received were very small indeed and argue, contra Posner and others, that the bargaining that took place in the claims department was very distant from the level of the trial court. For example, where Posner derived an average figure of about $5,000 for wrongful death claims using appellate data, I show that in the claims department, claimants in death cases averaged $127.32.

I also consider some of the fine work done by constitutive theorists, particularly Barbara Welke, of the University of Minnesota. I agree with most of her conclusions regarding the manner in which tort law instantiated gender norms, but I remain convinced that the operation of street railways, as social and economic activities, and also the conduct of trials had much more formative influence on norms of gender than did legal doctrine. That is, along with Chris Tomlins, I think that Welke makes too much of the formative influence of law on American discourse or ideology. This may be a small quibble.

I adapt the methods of the constitutive theorists and try to build upon Welke's excellent work to show that the streetcar companies helped to instill norms of negligence within their women riders. This made some women safer and kept others from making claims when they were injured. I argue that the street railway companies' ability to shape norms of negligence show another flaw in Posner's theory regarding the regulatory effect of tort law.

Earlier drafts of this work have been cited in the Harvard Law Review, Vanderbilt Law Review, Tulane Law Review, Wisconsin Law Review, Harvard Women’s Law Journal, Law & Social Inquiry, Journal of Tort Law, and the Connecticut Journal of Insurance Law. The author is looking for a place to publish this either as a long article or a monograph.

--Dan Ernst

Motor Carrier Regulation and the Law, 1920-1955

[Longtime LHB readers will recall that for the exam in my legal history course at Georgetown Law I write an essay about some regulatory regime I did not cover in class and ask students to draw comparisons with those we did.  (Last year's, on meat inspection, is here, and earlier one on the US Commerce Court is here)  This year's essay, on the regulation of motor carriers, follows.  Dan Ernst.]

“Motor carriers unit gets underway” (LC)

“The story of transportation in the United States,” wrote David Lilienthal, who had studied with Felix Frankfurter at the Harvard Law School in the early 1920s, “has been marked by constant and almost bewildering changes in the facilities by which the movement of men and goods has been effected.”  In the early twentieth century, one of the most bewildering changes was the transformation of motor vehicles from a rich person’s plaything to a major competitor of railroads for the nation’s freight.  Already in 1920, the states had registered 1 million trucks; by 1929, the number was 3.7 million.  Railroads considered such motor carriers pests that threatened to consume their revenue, and they looked to government to bottle them up.

Until 1935, motor carrier regulation was the province of the states.  By the 1920s, most already had “public utility commissions” that regulated railroads; water, gas, and electric companies; and other “businesses affected with a public interest.”  Perhaps for that reason, as a scholar wrote, it was ‘but natural” that these commissions would regulate motor carriers as well.  Still, motor transport companies differed from railroads in important respects, including especially their much lower fixed costs. Trucks operated on publicly owned roads; railroads had to pay for their rights of way and lay their own tracks.  Also, trucks were much less expensive than locomotives and train cars.  Thus, barriers to entering the motor carrier industry were far lower than the railroad industry.  If the core mission of railroad regulation had been to ensure that railroads allocated their fixed costs to shippers fairly; the core mission of motor carrier regulation was to limit competition, thereby making, it was said, the transportation industry more stable and safe.

The foundation for motor carrier regulation was the “certificate of convenience and necessity,” issued by a commission not as a property interest but a revocable license to serve the public for a fixed period of time.  Commercial motor carriers could not operate without one.  To get one they had to show that the public needed their services and that they had the financial wherewithal to meet that need.  Motor carriers also had to abide by “tariffs” set by the commission.  These schedules fixed minimum, maximum or actual charges for the transport various classes of goods.  The commissions also issued a host of safety regulations and oversaw the mergers, issuance of securities, and other financial actions of regulated companies. Disputes could arise when commissions denied applicants certificates or revoked them for malfeasance, which were quasi-adjudicative acts.  They could also arise in rate-setting, a quasi-legislative act.

Kassel on the Desegregation of American Airports

New from the University of Georgia Press: Jim Crow Terminals: The Desegregation of American Airports (July 2017), by Anke Ortlepp (University of Kassel). A description from the Press:

Historical accounts of racial discrimination in transportation have focused until now on trains, buses, and streetcars and their respective depots, terminals, stops, and other public accommodations. It is essential to add airplanes and airports to this narrative, says Anke Ortlepp. Air travel stands at the center of the twentieth century’s transportation revolution, and airports embodied the rapidly mobilizing, increasingly prosperous, and cosmopolitan character of the postwar United States. When segregationists inscribed local definitions of whiteness and blackness onto sites of interstate and even international transit, they not only brought the incongruities of racial separation into sharp relief but also obligated the federal government to intervene. 

Ortlepp looks at African American passengers; civil rights organizations; the federal government and judiciary; and airport planners, architects, and managers as actors in shaping aviation’s legal, cultural, and built environments. She relates the struggles of black travelers—to enjoy the same freedoms on the airport grounds that they enjoyed in the aircraft cabin—in the context of larger shifts in the postwar social, economic, and political order. Jim Crow terminals, Ortlepp shows us, were both spatial expressions of segregation and sites of confrontation over the re-negotiation of racial identities. Hence, this new study situates itself in the scholarly debate over the multifaceted entanglements of “race” and “space.”

More information is available here.

Kyer on Streetcar Law

More of our Commonwealth round-up from 2015, when Irwin Law published A Thirty Years' War: The Failed Public/Private Partnership that Spurred the Creation of the Toronto Transit Commission, 1891-1921 by C. Ian Kyer, RPM Technologies. From the press:

Between 1891 and 1921, the Toronto Railway Company operated Toronto’s streetcars under a franchise granted by the City. The arrangement brought the City a modern electric streetcar system, but the relationship between the two entities was a tempestuous one, marked and marred by almost constant conflict and confrontation. Remarkably, the many court battles that resulted went to the Judicial Committee of the Privy Council on fourteen separate occasions. This book details these legal disputes, and along the way, links them to the city’s expansion and development, its municipal politics, the provincial debates over public ownership of many kinds of utilities, and the legal culture of the day, which reveals a remarkable faith in the courts. This is a fascinating historical story set in its own time and milieu, but which also has considerable contemporary relevance as Toronto — and Canada’s other major urban centres — wrestle with their modern transportation problems. It will be of interest not only to legal historians, but also to those interested in transit and municipal history, and in the correct balance between public and private ownership.

Praise for the book:

“[A] thoughtful and very timely book. . . . A Thirty Years’ War describes, in great detail, a dynamic and a political dialogue that is still so relevant today. . . . [The book] provides invaluable guidance on how to avoid pitfalls from the past. . . . [I]t flags lessons learned, as, once again, injection of private cash is being mooted as an option to renew and expand our transit system.” -Andy Byford

“To understand the evolution of cities at the end of the nineteenth century and the first two decades of the twentieth, Ian Kyer’s study of the relationship between Toronto’s councils and the City’s privately owned transportation system is essential reading. Kyer writes with authority, but with no hint of stodginess. I do not hesitate to recommend A Thirty Years’ War, not only to today’s Torontonians, but to readers across the country.” -R.B. Fleming

"Civil litigators, municipal law specialists, transportation law counsel and members of the solicitors' bar interested in the psychology of negotiating contracts to the point of brinksmanship (not to mention those, like me, interested in legal history) are invited to read this 254 page gem [ . . .] The study of an historical legal subject, when ably undertaken as in this case, serves contemporary needs and draws much needed light on present-day controversies. A Thirty Year's War may be enjoyed on many levels, but will prove valuable for advocates and for those who wish to avoid litigation." - Gilles Renaud

Further information is available here.