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Using the Past

Sarah A. Seo, A User’s Guide to Historyin Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, & Heinz Klug eds., 2021), available at SSRN.

In A User’s Guide to History, Sarah A. Seo offers a thoughtful and challenging assessment of the possibilities and pitfalls of using historical scholarship to guide our present. At the heart of her essay is a tension between needs and methods. We need to know the past to understand the present; we need to know what we’ve done before so we can make the right choices about policies today. But, as Seo strikingly puts it, “history’s methods seem unsuited for determining what, exactly, those policies should be.” To demand that history has a “practical use,” that it serves as “a tool for reform,” may be “something like a suicide mission,” putting at risk “the integrity of the discipline.” (P. 465.)

Seo’s essay—a contribution to the Research Handbook on Modern Legal Realism— thus offers historians a warning, a reminder of the limits of their craft. The essay can be read as a critique of historians who, moved by some combination of enthusiasm, desire for attention, and moral commitment, too confidently claim special insight into present-day legal and political choices.

But Seo’s primary project is constructive. By analyzing how historical scholarship can inform the choices of the present (what she describes as history’s “translation challenges”), she seeks not only to acknowledge history’s limitations, but to celebrate its distinctive and essential contributions. Seo dedicates the first half of her essay to drawing on recent U.S. legal historical scholarship to construct a “typology of history’s insights.” (P. 465.) She describes how the historians’ focus on context, time, contingency, and human subjectivity illuminates a variety of sociolegal dynamics—from the evolution of legal categories to the relationship between law and social movements to the way individuals experience periods of legal transformation.

After this illuminating survey of recent work in legal history, Seo arrives at the key question of the essay: “So, what do we do with this historical knowledge?” (P. 472.) At this point the essay shifts from summarizing the contributions of exemplary legal historical scholarship into a critical analysis of how historians use their expertise to participate in contemporary law and policy debates. And here is where we encounter the crux of the dilemma of the engaged historian: the very methods and assumptions that allow historians to bring fresh insights to sociolegal dynamics of the past—particularly their insistence on the primacy of context and contingency—limit their ability to translate insight into prescription.

“The main issue in translating historical conclusions into policy arguments,” Seo observes, “is that the questions that motivate historians are not precisely the questions that policymakers, or the public, ask.” (P. 472.) Historians work primarily in a descriptive register. The terms of policy debate, by contrast, are primarily normative. And when historians shift registers, using their knowledge of the past to defend a normative position—writing amicus briefs or op-eds, testifying before lawmakers or in court—what emerges is often second-rate history. It’s history stripped of the nuance, ironies, and complexities that breathe life into the best historical scholarship. Historians have a long record, going back at least to Brown v. Board of Education, of joining forces with lawyers and then writing confessional accounts of the scholarly compromises this work entailed. The steady ascendancy of originalism as a method of constitutional interpretation in recent decades has only increased the demand for historical scholarship that pushes aside the constraints of context and contingency and locates in the past clear conclusions that can be applied in the present.

Seo does not linger on episodes of historians who feel they have compromised their scholarship in the service of advocacy. She is more interested in exploring the ways in which historians can contribute to contemporary policy debates while maintaining their commitment to the context, time, contingency, and human subjectivity that constitute the essence of historical scholarship.

One essential role for professional historians in the public sphere that Seo identifies is error correction. When public figures use shoddy history to justify some action or argument, professional historians have a responsibility to speak up.

Another role that historians can play in policy debate is to chasten excessive optimism about legal reform. Much of the historical scholarship Seo surveys in this essay emphasizes the limits of law in producing social change. Yet, at the same time, history often provides inspiration for reform efforts. By paying close attention to change over time and the contingency of law and social practices, historians challenge those who assume that just because something is a certain way, it always was and always will be that way. A famous example of this was C. Vann Woodward’s 1955 The Strange Career of Jim Crow, a book Woodward intended as not only a reinterpretation of the emergence of segregation in late nineteenth century America, but also a direct statement about the potential for civil rights reform in the 1950s.Woodward’s message to the nation, and particularly to his native South, was that segregation was not as old or as deeply entrenched as generally assumed, and that dismantling Jim Crow was therefore more possible than many thought. Historians, Seo writes, “specialize in stories of change, which can affirm that change is possible.” (P. 472.) One of their key contributions is to “liberate us from the past.” (P. 475.)

But what about the historian who seeks to contribute to public debate beyond offering these “general messages of humility and hope” (P. 472) and beyond correcting the errors of others? What about the historian who wants to claim that history—that is, the findings produced by rigorous historical inquiry, as guided by the best practices of the profession—tells us we should do x and not y? Can the historian who fully engages in political or legal advocacy remain in the role of the historian?

Seo suggests—rightly I think—that the answer to this question is no. Although it seems that many historians, judged by word and action, disagree, there is simply no getting around the limitations of historical methods.

To assert that “history” is on one side or the other of a particular policy dispute or legal reform effort, is not, strictly speaking, a historical claim. Its primary goal is to explain and shape the present; its value and validity is determined by the future, not the past. Such an assertation uses history not as an end unto itself but as a means for another end. It requires a process of decontextualization and abstraction that denies the foundational assumptions of the historian’s discipline.

The point here is not that historians should refrain from taking sides in debates over the direction of law and policy. Historians can and should be advocates for causes they believe in. And the knowledge and moral sensibilities derived from their historical scholarship surely informs the positions they take and the arguments they make. The point is that the shift from a descriptive to a prescriptive register requires a different set of analytical tools, and that these are not the tools of historical analysis.

Seo’s essay leaves the reader with an account of historical knowledge that is chastening, perhaps, but also inspiring. Historical expertise may not be particularly good at supplying answers to present-day challenges, but we cannot successfully face these challenges without the rich, complex accounts of human experience and the windows onto alternative ways of thinking and living that a knowledge of history gives us.

Cite as: Christopher W. Schmidt, Using the Past, JOTWELL (May 19, 2022) (reviewing Sarah A. Seo, A User’s Guide to Historyin Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, & Heinz Klug eds., 2021), available at SSRN), https://legalhist.jotwell.com/using-the-past/.

Meta-Law Institutions and Substantive Predictability

Henry Smith, Equity as Meta-Law, 130 Yale L.J. 1050 (2021).

In more ways, than one, Henry Smith’s Equity as Meta-Law is an awkward fit for JOTWELL: the site, as I have long understood it, has an implicit focus on the work of emerging scholars, not very well-established ones. Moreover, the article does not easily fit into any of the subfields that JOTWELL disaggregates legal scholarship into: on the one hand, while there is quite a bit of legal history in the article, its ultimate goals are arguably more normative than explanatory or descriptive. On the other hand, it is much more historically oriented than mainstream jurisprudence, including mainstream law and economics theory. Substantively, its subject matter—equity—inevitably takes it on a tour of multiple legal domains, ranging from property to torts to contracts to procedure, but commits it to none. The best categorization of the article is probably “private law theory,” but there is no JOTWELL classification for that.

Nonetheless, the article deserves some discussion in these (web)pages simply because it is probably the most important article on private law to come out in the past few years, and will likely set the stage for numerous rounds of discussion and extrapolation in the years to come. It is one of those foundational articles that only come around once every so often.

The article makes two central claims, one descriptive and one normative: First, it argues that, for centuries, equity has supplied a “meta-law” function for Anglo-American private law—that is, equity provides a flexible doctrinal tool for judges to constrain the functional unpredictability of excessive common law formalism. Second, it argues that it should continue to do so, despite the erosion of this function in American and English law following the instrumental fusion of common law and equity. Mixed into these primary arguments are a number of explanatory sub-arguments about the functional benefits of meta-law, why equity has traditionally been well-suited to providing these benefits, and why its meta-law functions have declined following the fusion.

At its core, Smith’s thesis here, like the information cost theory of property he has championed over the past three decades, is rooted in classic law and economics theory, particularly in efficiency-oriented concerns over clarity and foreseeability. Although one might intuitively think that clarity and foreseeability are most effectively achieved through doctrinal formalism, with all its bright line rules and claims to full textual transparency, Smith persuasively argues that this is not always true, and that a more factually and normatively contextualized approach, which he calls “meta-law,” is sometimes superior. While it is inefficient to employ meta-law in a generalized fashion, hovering over all routine legal decisions—doing so would damage, rather than enhance, predictability—a functionally constrained and targeted deviation from formalism in cases of unusual complexity significantly enhances the legal system’s socioeconomic performance.

Underlying this argument seems to be the—surely correct—belief that efficient socioeconomic activity rests upon socially salient foreseeability, rather than technical legal foreseeability. Most economic actors are limited in their ability to digest either technical legal complexity or the full range of socioeconomic complexity that can arise in everyday life, and form expectations about legal outcomes subject to those limitations. They are unable to adequately foresee the myriad of non-standard outcomes that can be reached when complex socioeconomic interaction creates openings for opportunistic exploitation of formal legal rules. Moreover, given the inherent political and intellectual imperfections of human lawmaking, a purely formalistic legal system will almost inevitability contain internal tensions, even contradictions, that damage outcome-oriented foreseeability. The goal of meta-law, then, is to provide an institutional mechanism that can iron out these substantive abnormalities, thereby constraining legal outcomes to a socially salient range of foreseeable possibilities and providing an adequate foundation for efficient socioeconomic interaction.

As Smith argues, for several centuries following its creation and advent in early modern English law, equity performed this meta law function in the common law world. This is, to be clear, not a claim about institutional design, although there is obviously a compelling claim to made that equity was designed from the very beginning to overcome the functional deficiencies of excessively rigid common law formalism. Instead, it is a claim about actual functionality—that, regardless of the original intent underlying its creation, equity eventually supplied the English and American legal systems with a meta-law mechanism. Equity gained this functionality through a number of institutional devices and characteristic that Smith lays out in considerable detail: “cabining maxims” that ensure its narrow and limited use, balancing tests that allow non-formalistic consideration of a wide range of contextualized factors, moral considerations that help align legal outcomes with social expectations, and so on.

Historians will find these claims largely familiar, and indeed most of them are grounded in a well-established historical literature that the article voluminously cites. This collection of authors that have made related arguments ranges from Blackstone and Grotius, to Frederic Maitland, William Holdsworth, Roscoe Pound, and Joseph Story, to John Baker, Zechariah Chafee, John Langbein, Sarah Worthington, and a host of contemporary scholars. The basic argument that equity has historically helped align legal outcomes with social mores, more so than the less doctrinally flexible Common Law, should be largely uncontroversial to anyone familiar with this private law literature.

Where Smith adds considerable conceptual clarity to this traditional understanding is his additional leap from social mores to economic expectations: from, effectively, societal beliefs to behavioral habits, and then to the anticipatory worldviews that those habits encourage. This seems like a highly intuitive and persuasive leap once Smith frames it in those terms, but it is nonetheless a novel contribution. In particular, it allows for easier theorizing under mainstream models of private law, which, being predominantly functionalist in nature, often cannot readily digest moral beliefs on their own terms, but do have a sophisticated framework for evaluating and measuring behavioral expectations. To the extent that doctrinal history requires accurate theoretical framing to construct truly compelling macro-narratives, this article offers much to legal historians of the Common Law world. To the extent that good theory, even normative theory, must be grounded in historical narrative, it offers even more to legal theorists.

More recently, however, the meta-law functionality of equity has deteriorated following its fusion with common law. Smith points out that the fusion has “flattened” equity into something more formalistic and mechanical, thereby weakening its ability to reduce socially deviant legal outcomes that result from excessive formalism. Instead, he argues that equity’s meta-law functions should be restored. While it might be impractical to recreate institutionally separate equity courts, judges and lawmakers should be able to identify the legal doctrines that potentially perform a meta-law function, and take steps to ensure that they are not decimated by the legal profession’s inherent tendency to formalize.

The most powerful contribution of the article lies in its basic conceptualization and theoretical framework: the idea that there has been, and should be, an institutionally concrete meta-law in private law. The idea that the predictability of legal outcomes should be understood in a socioeconomically contextualized fashion, and not merely as a matter of formal conjecture, may seem intuitive to critical theorists, psychologists, or sociologists, but it has all too often been overlooked in the economic analysis of private law.

Smith’s proposal takes this core insight and skillfully builds it into a full-blown theory of legal structure, identifying not only the need for something like meta-law as a sort of corrective, but also what its core functional characteristics need to be: contextualization, flexibility, but also substantive specificity and restraint. From there, the article applies these theoretical insights to one of the most historically important yet jurisprudentially underappreciated developments in the common law world—the rise of equity—and makes a highly compelling, if not quite fully conclusive, case for interpreting it through the lens of meta-law.

The scope, originality, and force of these ideas are truly extraordinary, representing legal theory at its very best. Traditionally, legal theory has all too often lacked historical grounding, whereas legal history, especially doctrinal history, rarely rises to a theoretically useful level of conceptual abstraction. The two sides often have strong reasons to stay within their respective comfort zones, but this article demonstrates the range of tantalizing possibilities when they are brought together in a synergistic fashion.

Like all foundational works of legal theory, the article does leave open a large number of empirical questions. Most notably, while it makes a well-supported case that equity has historically had the function of meta-law, it does not give a systemic evaluation of how well it has actually performed that function: did equitable balancing actually produce the kind of socially salient foreseeability of outcomes that Smith’s theoretical framework focuses on? As Smith’s own functionalism would logically demand, such an evaluation cannot be done at the level of institutional description, but must instead be steeped in socioeconomic measurement and analysis. Without such measurement, it is also somewhat difficult to assess Smith’s normative claim that equity should, even today, play the role of meta-law in modern American private law: what are the possible alternatives—statutory interpretation devices of the kind that we often find in civil law traditions, perhaps—and how would they perform in the American socioeconomic context?

Ultimately, it remains somewhat unclear whether the connection between meta-law and equity is truly as functionally watertight as Smith claims. Nonetheless, without the theoretical and descriptive foundations laid by this article, we would not even have any real intellectual basis for pursuing these concerns. An article has done something of fundamental importance when it supplies a new set of questions that nearly all future scholarship in its field must substantively grapple with, and I have very little doubt that this article has accomplished that.

Cite as: Taisu Zhang, Meta-Law Institutions and Substantive Predictability, JOTWELL (May 3, 2022) (reviewing Henry Smith, Equity as Meta-Law, 130 Yale L.J. 1050 (2021)), https://legalhist.jotwell.com/meta-law-institutions-and-substantive-predictability/.

Actuarial Logic and American Social Life

Caley Horan ends her compelling new history with a description of two divergent imaginaries about insurance. In 1914, philosopher Joyce Royce gave an address at Berkeley, in which he described his utopian vision for a global insurance community. Cooperation among the world’s nations might insure for a multiplicity of hazards, from war to natural disasters, and foster international solidarity in the process. In 1955, author Frederik Pohl offered wrote a novel that offered a far more cynical, dystopian view of insurance. Preferred Risk depicted a corporate entity that insured every conceivable risk—but only for those classified as meritorious. Those deemed “uninsurables” struggled to survive on the margins. In Insurance Era: Risk, Governance, and the Privatization of Security in Postwar America, Horan explains how these conceptions of insurance have competed in modern U.S. history and why, by the twenty-first century, we are much further from Royce’s vision and closer to Pohl’s.

By examining the second half of the twentieth century and synthesizing the study of multiple types of insurance, Horanmakes an important contribution to a growing literature on insurance history. Insurance Era also makes a potentially dry subject come vibrantly alive by situating economic ideas in their cultural contexts and weaving legal and social theory into the historical narrative. Horan’s clear and beautiful language propels her readers through her deep dive into the archive of insurance operations and excavation of complicated actuarial concepts. Ultimately, she shows how private insurance taught Americans to conceive of themselves and others in actuarial terms, transformed the built environment, fractured social identities, and deepened socio-economic inequalities.

The first part of the book, “Selling Self-Made Security,” offers a cultural history of life insurance companies’ efforts to shape Americans’ consumption and social habits. The insurance trade associations that formed in the wake of the New Deal had a singular purpose: to stave off national social insurance. In pursuit of this aim, they launched advertising campaigns that sold the ideal of “self-made” security. The ads instructed wage-earning married men that their civic responsibilities centered on caring for their families by purchasing private insurance. Life insurance companies also undertook paternalistic public welfare campaigns designed to promote the personal health and financial education of American workers and schoolchildren. Public health efforts, ranging from visiting nurses to print propaganda, taught Americans to conceive of their identities and wellbeing in terms of standardized measurements. School curricula promoted by insurance agencies promoted marriage, careful budgeting by housewives, and familial saving.

The insurance industry did not only produce and sale new products that remade Americans’ understanding of their bodies, health, and relational obligations. It also remade the American landscape as an extremely powerful investor. I found this history, which is the subject of Part II of Insurance Era, perhaps the most surprising and intriguing part of Horan’s book. It analyzes how insurance companies privatized public space, via investments in both urban renewal and suburbanization. Unlike most other industries, life insurance companies emerged from the Great Depression flush with cash. Searching for new investment channels, they pressured states to reforms laws that prohibited them from investing in real estate. The industry’s interests dovetailed with those of city and state officials, who needed to find solutions to an urgent housing crisis. New York reformed its law first in 1938, and by 1952 almost all states had followed suit.

The country’s largest life insurance companies seized the chance to invest in residential and commercial real estate projects that offered juicy profit-making opportunities. Metropolitan and New York Life built enormous private housing developments for middle-class families, including Parkchester in the Bronx, Stuyvesant Town in Manhattan, and Lake Meadows in Chicago. These projects contributed to cities’ urban renewal efforts, which devastated working-class neighborhoods, dislocated and impoverished African American communities, and entrenched racial segregation. Abandoning these controversial efforts, in the 1950s insurance companies turned from the urban core to the suburbs. The life insurance industry financed a large proportion of the shopping centers whose standardized aesthetics and retail composition became familiar features of the suburban landscape. Insurance companies also acted as pioneers in the relocation of corporate headquarters, from cities to suburbs.

A particularly important aspect of this history centers on the close monitoring that insurance companies exerted over their investments. Continuing a pattern of risk assessment and surveillance, companies exercised exceedingly high degrees of control. They managed social life within housing developments in excruciating detail, from selecting only white tenants all the way down to disciplining children for throwing snowballs. In an especially creative section of the book, Horan describes how Connecticut General Life Insurance Company designed its suburban Bloomfield “white-collar plant” to facilitate efficient, productive, and purportedly contented employees. Its efforts had Foucauldian dimensions; for example, an on-site gym induced female staff to watch their diets and fancify their dress.

After analyzing the ways in which insurance companies marketed privatized security and shaped American life as investors, Horan turns back to the insurance products themselves. Part III of Insurance Era analyzes race and sex discrimination in the sale of insurance as well as underwriting practices. Although the history of redlining is familiar, Horan breaks new ground by focusing on the critical role of private companies rather than the federal government. Her most significant contribution is to analyze the discourses the industry used to defend race discrimination. After a National Advisory Panel determined that lack of access to insurance had contributed to the urban crisis and racial rebellions of the late 1960s, industry executives stopped presenting private insurance as a total alternative to social insurance. Instead, they began to emphasize public-private partnerships. This led to the creation of the Fair Access to Insurance Requirement (FAIR) Program, which created a secondary market in federally subsidized property insurance for properties deemed to be high risk. The catch was that this market featured higher premiums and lesser terms of coverage. Horan does not mince words in condemning the insurance industry’s continuing lack of investment in cities and communities of color.

In addition to promoting shared responsibility between government and insurance, leading companies began to justify discrimination in the mid-1970s with resort to the concept of “actuarial fairness.” This was the notion that premiums should be set so that persons who were ‘good’ risks did not subsidize ‘bad’ risks. “By advancing the notion that some individuals and communities ‘deserved’ to pay less for security than others, industry representatives infused their market-based underwriting decisions with a moral claim to fairness and perpetuated already existing disparities in wealth and status among Americans.” (p.164). Horan thus effectively historicizes and destabilizes an idea that insurance law treats as natural and that critical legal scholarship has not succeeded in dislodging.

Horan’s final chapter examines the largely unstudied history of sex discrimination in insurance. Since the rise of the statistical sciences in the mid-nineteenth century, insurance companies grouped individuals according to a probabilistic curve that charts risk. Beginning in the 1950s, insurance companies sorted individuals according to marital status, reproductive activity, and sex. Horan discusses feminist advocacy in the late 1970s and early 1980s challenging the use of sex in insurance rating. In particular, feminist activists targeted sex-differentiated actuarial tables for life insurance, which purported to take account of sex differences in average lifespan. The Supreme Court vindicated their argument, holding in two pivotal cases that employers violated Title VII of the Civil Rights Act of 1964 when they charged women higher contributions for pensions or offered them lesser annuity benefits. Despite the rise of antidiscrimination norms regulating employer-sponsored insurance, sex discrimination in the individual insurance market remained rampant.

Horan draws provocative conclusions about why feminists failed in their mid-1980s campaign to win federal legislation mandating unisex insurance tables. She contends that feminists remained cabined within the confines of the conceptual framework erected by the insurance industry. Rather than disputing actuarial logic itself, feminists argued that probabilistic calculations based on sex were flawed or overbroad. Horan suggests that feminists might have instead challenged social segmentation in insurance and argued for collective risk-spreading and solidarity. Horan’s position has more normative appeal than persuasiveness as an historical account of the political arguments that feminists might have realistically made. After all, they were fighting in Congress at the height of the Reagan Era and were themselves operating within the period’s neoliberal political tropes. Horan nonetheless offers a useful foil that helps to illuminate the narrow range of political debate about sex discrimination in insurance.

Insurance Era is not primarily a legal history, but law is central to its argument. The book references the McCarran-Ferguson Act of 1945, which gave states primary regulatory authority over insurance. The act served as a significant hurdle to making insurance companies more accountable to the public good, requiring reform-minded activists to navigate jurisdictional complexities and launch advocacy campaigns in multiple states. More might be said about the intertwined historical battles over federalism and insurance. Without exploring such political history in detail, Horan demonstrates the success of insurance companies in winning legal reforms in their financial interest and defeating those which ran counter to their profit motives. Legal historians will not find in this book an account of how actuaries or insurance executives thought about law, beyond its crass role as an obstacle to managerial freedom. Yet Horan’s outstanding book provides a starting point for understanding how struggles over insurance discrimination unfolded in the context of broader legal debates about whether antidiscrimination law should protect individuals or groups. Insurance Era has laid an important foundation for future legal history work. It is essential reading for anyone interested in why the U.S. has such a limited welfare state, the private sources of social governance, the history of urban crisis, and race and gender inequality.

Cite as: Deborah Dinner, Actuarial Logic and American Social Life, JOTWELL (April 14, 2022) (reviewing Caley Horan, Insurance Era: Risk, Governance, and the Privatization of Security in Postwar America (2021)), https://legalhist.jotwell.com/actuarial-logic-and-american-social-life/.

Beyond “Affirmative Action”: Hierarchical Inclusion in 1960s Israel

We usually consider affirmative action (or to use the current Hebrew term, “corrective discrimination”) as a vehicle for correcting historical wrongs and achieving greater social equality. Ofra Bloch’s Hierarchical Inclusion, however, reminds us that these are not essential elements of the practices we have come to characterize as “affirmative action.” More importantly, as a historical reality this has not always been the case. Examining the Israeli example during the state’s first two decades (1948-1968), Bloch demonstrates how affirmative action in Israel was animated by very different motives. In the process, she also complicates the conventional wisdom regarding the Israeli state’s treatment of its Arab minority during the 1950s and 1960s, a period frequently referred to as “the military regime.” Whereas most have focused on armed oppression which characterized this era and property dispossession, Bloch shows how the subordination of Israel’s Arab population was often far more subtle.

Most accounts of affirmative action in Israel begin in the 1990s. Bloch, however, shows how this policy came about far earlier. Mining never before explored files from the Israeli State Archives, the Knesset (Israeli Parliament) Archive and the Labor Movement Archive, Bloch is able to trace the overlooked motives that led the Israeli government to try integrating its Arab population into the workforce (in white and blue collar jobs, in both the private and public sectors) and into higher education. Rather than resting exclusively on egalitarian ideals, the efforts were geared primarily towards four other instrumentalist objectives: maintaining security by ensuring social stability; advancing Israel’s economic prosperity; gaining international legitimacy; and courting the Arab vote.

The idea behind what Bloch identifies as the “managerial function” of affirmative action was to diffuse dissent within the Arab sector and prevent the rise of Arab nationalism in Israel by workforce integration and improvement of material conditions. This, it was believed, would also lead to broader financial prosperity, for Arabs and Jews alike: by integrating its Arab citizens into the workforce, Israel could prevent competition between what had historically been two largely separate economies, while in the process ensuring a cheaper labor force. Constantly conscious of its international image, affirmative action also lent legitimacy to the Israeli government. This was particularly important given Israel’s problematic record concerning discrimination, which was believed to erode the state’s legitimacy even in Jewish circles abroad.

Moving from motives to effects, the measures did lead to change. Particularly during the second decade of statehood (1958-1968), the percentage of Arab citizens working alongside Jews rose from 20% to around 50%. Yet this integration was not spread equally within the Israeli economy. Arab citizens were mostly employed in low paying jobs in the construction, agricultural and hospitality industries. Bloch, however, challenges the conventional wisdom that Israel’s Arab population was only integrated into low-paying, mostly unskilled positions: though still heavily underrepresented, she shows the significant gains within the civil service (from 2.3% in 1958 to 3.6% in 1969) and in higher education (from 0.6% in 1957 to 1.7% in 1970). Though not insignificant, Bloch acknowledges that integration was mostly in the lower ranks of the civil service, and that many Arab university students did not end up completing their degrees. For an array of reasons, true integration in Israel was—and remains—a largely unsuccessful endeavor. Whether the underlying motivations for affirmative action can explain these limits, at least in part, remains an open question.

Bloch’s exploration of the Israeli example provides an important angle on some of the underexplored motivations—and effects—of affirmative action. It joins a growing body of literature on affirmative action that looks beyond the mostly legal debates of the 1970s and 1980s in the United States, to focus instead on the true roots of affirmative action, which are often far more sinister. By looking internationally as well as historically, Bloch forces us to rethink some of the conventional wisdom regarding affirmative action’s motivations and who precisely it serves.

Cite as: Binyamin Blum, Beyond “Affirmative Action”: Hierarchical Inclusion in 1960s Israel, JOTWELL (March 30, 2022) (reviewing Ofra Bloch, Hierarchical Inclusion: The Untold History of Israel's Affirmative Action for Arab Citizens (1948–68), 39(1) Law and History Review 29 (2021)), https://legalhist.jotwell.com/beyond-affirmative-action-hierarchical-inclusion-in-1960s-israel/.

Henry Bergh, the American Society for the Prevention of Cruelty to Animals, and the Horse

Henry Bergh was the founder of New York’s American Society for the Prevention of Cruelty to Animals (ASPCA), the first U.S. animal rights organization established in 1886. The title of Ernest Freeberg’s new book, A Traitor to His Species, refers to the public perception of Bergh as no friend to humanity. Those who Bergh did battle with, “teamsters and turtle dealers, circus managers and cockfighters, butchers and surgeons,” defensively asked “Why did Bergh hate humanity so?” Why was he such “a traitor to his own species”? (P. 5.) Freeberg does little to deflect the image of Bergh as “a fanatic who cared more for animals than he did for humans.” (P. 29.) To the extent that this is a stereotype of animal activists (i.e. as misanthropes), one might wish Freeberg had engaged with that view of Bergh a little more critically. However, Freeberg’s Bergh, declared by one newspaper to be a “public pest,” was “perhaps,” according to Freeberg, “a necessary one.” (P. 21.) Certainly, “[t]he vivid tales of his confrontation on the streets of New York made him one of the city’s celebrities.” (P. 22.) Many different animals were featured in Bergh’s campaigns; however one stood out, the one Bergh was most concerned about and which caused him to take up the animal cause in the first place: the horse.

A Traitor to His Species begins with the following line: “Few pictures of a late nineteenth-century American city street lack a horse.” (P. 1.) Relatively elderly (fifty-three) and wealthy when he came to start caring about the treatment of animals, Bergh was deeply moved by the abuse of carriage horses he witnessed in St. Petersburg during a brief time spent in Russia as a diplomat. Freeberg says that it “provoked in him [Bergh] something like a conversion experience.” (P. 8; see also Pp. 24-25.) Freeberg also tells us that a large bequest for the ASPCA later came from a wealthy fur trapper, Louis Bonard, who gave a deathbed donation motivated by the fear that “he would soon be reincarnated as a carriage horse.” (P. 116.)

Many of the chapters focus on dramatic stand-offs between Bergh and other prominent men in the city. These episodes include a show down with P.T. Barnum, who made a public spectacle of feeding snakes live rabbits which Bergh found to be unnecessary (Chapter 5), Kit Burns, whose dog fighting ring attracted Bergh’s ire (Chapter 6), and elite sportsmen, whose pigeon shoots created what many viewed as wanton and senseless carnage (Chapter 11). Chapter 4 is framed by the confrontation Bergh had with “Commodore” Cornelius Vanderbilt, one of the wealthiest men of the Gilded age over the treatment of his trolley horses.

Freeberg explains that Vanderbilt was “a well-known lover of horses,” but he “reserved his affection for the very expensive and very fast ones.” (P. 55.) The horses who pulled trolley loads of commuters on the New York City streetcar lines owned by Vanderbilt were regularly overloaded. “Overloading” trolley horses killed “ten thousand animals every year, from exhaustion, broken legs, and accidents,” the ASPCA estimated. (P. 56.) Legislators refused to pass passenger limits. (P. 57.) ASPCA agents policed the lines, positioning themselves at the bottom of hills to force the adding of a third horse to help with the more difficult stretches of road. (P. 59.) Bergh himself would appear in snowstorms and order drivers to return horses to the stables. (P. 59.) This campaign, though controversial, was mostly a success in the sense that it embarrassed the companies into taking better care of the horses. (See Pp. 60-61.)

Chapter 7 recounts how what was then referred to as an “epizootic” disease broke out, wiping out the nation’s horses. (P. 93.) An outbreak of horse flu just outside Toronto in the fall of 1872 quickly spread to most of the horses and mules in North America, killing them or rendering them too sick to work. This disrupted coal supplies which shut down iron mills and brought many manufacturing industries to a standstill. “[C]onsumer prices soared […] Perishable goods rotted on the docks […] School was canceled in some places for want of firewood or coal … [Even] funeral processions [were] impossible.” (Pp. 99-100.) Animal activists hoped that the epidemic would force “Americans to notice that these engines of commerce were, in fact, suffering creatures.” (P. 104.)

Freeberg frames this (at least to me) little-known event as the first American “energy crisis.” However, had it been published just a little later, one suspects Freeberg might have drawn explicit parallels to the disease currently on everyone’s mind: COVID-19. Slaughterhouses got into difficult situations during the first wave of the pandemic with outbreaks among workers resulting in closures and pile ups of animals reminding people that food animals were sentient beings with a life cycle delicately timed to serve industry needs.1 Seeing that timing thrown off whack has led some to think twice before using an animal-based food product rather than a plant-based one.2 A disease that jumps from nonhuman animals to humans (as experts believe happened with Covid-19, as it was first recorded effecting those eating or coming into contact with wild animals at a seafood market in Wuhan, China), might lead people to doubt the safety of animal foods, including what comes out from factory farms where animals are also kept in crowded conditions ripe for disease outbreak.

“[T]he horse disease,” as it was referred to, “remained confined to the equine population.” (P. 101 and P. 96.) Thankfully, it did not jump to humans. Freeberg tells us that the effect of making people think twice did take place to some extent with the horses. He writes of the 1872 flu: “At its darkest moments, the epidemic left many Americans wondering whether the world as they knew it would ever recover […] The shock of this, America’s first great “energy crisis,” made the anticruelty movement front-page news for many weeks.” (P. 107.) However, “[p]ublic resolve to relieve the suffering of the city’s overburdened horses seemed to fade as quickly as the animals’ fevers.” (P. 107.)

Overall horse suffering was decreased not so much by a sensitized public as the move to the steam engine and “machines that would be able to carry more weight, faster, and for less money.” (P. 109.) Freeberg explains that “[u]p until 1872 all experiments to replace horses with machines on city streets had mixed success. When they worked, the steam dummies seemed more menace than amenity. They moved too fast, clanked too loudly, billowed smoke, steam, and sparks, terrified horses, and produced horrific accidents.” (P. 110.) Car line managers, who “made heavy dividends out of a brutal abuse of horse-flesh” were “not convinced that steam will yield the same amount of money.” (P. 111.) Pandemics are capable of literally shoving people away from reliance on one form of technology towards another. Think Zoom. The shift Freeberg describes is ironic. We wouldn’t today applaud the shift to steam and the surer and more reliable movement of coal to industry as a net benefit, at least not to the environment and in terms of coal’s contribution to the current climate crisis we are in.

A similar irony is explored in Chapter 10, “Civilized Slaughter,” which describes how Chicago meatpacking plants developed the process of creating “dressed meat” shipped by rail in ice, which “saved” animals from the tortures of live transport to New York City and other eastern markets demanding cheap beef. This did not, of course, eliminate suffering; it changed the forms of suffering and made them invisible. “As every anticruelty crusader well knew, the surest path to rousing the public’s sympathy for the plight of animals was to have them see the suffering for themselves.” (P. 159.) Also consider Chapter 12, which discusses the “humane” methods of killing unwanted dogs and a shelter system, which also removed dog-killing from public view. Really Freeberg writes “the movement sheltered the public from the harsh reality” of the thousands of dogs who were being put to death. (P. 211.)

Freeberg does not problematize the electric steam engine saving the trolley and canal horses. (See, e.g. P. 274.) However, he does throw skepticism on the claim that “meat on ice” was “a moral gain for society.” (P. 274.) In the last chapter of the book, he writes about the modern factory farming system “calm[ing] the public conscience less by removing animal suffering than by removing it from view.” (P. 274.) Freeberg describes those who work today to “expose the profound cruelties” of the factory farming system as people who “struggle to make us once again see this suffering, far removed from the experience of consumers and carefully guarded by the meat processors and the state legislators who have passed ‘ag gag’’ laws that make sure we do not witness what we could not stand to watch.” (P. 274.) I found the discussion of that irony satisfying after Chapter 10 itself dealt with the development in an agnostic way.

Bergh was not a lawyer. And while a lot of his battles made their way into courtrooms (e.g.the battle against New York City turtle dealers) or took the form of calling for legislation (e.g. for Congress to regulate live animal rail transit across state lines), the primary weapon he used was notoriety and publicity. As he put it himself, “when building a movement, ‘Notoriety is wanted.’” (P. 19.) Being “intentionally provocative” was often effective, even if some of the changes (e.g. the switch to the steam engine or refrigerated rail cars) were going to happen anyway. (P. 275.) Bergh also was prepared to fight for the “all animals, not just those considered useful or lovable.” (P. 275.) While there is ample material in the book to focus on the horse, it also is only one slice of the wider and very informative history of Bergh and his campaigns provided by A Traitor to His Species. For those of you who love or are otherwise interested in horses (there are so many), it might work effectively to draw you into reading this fine book.

  1. See Camille Labchuk, “Brutality of the meat industry is on display during COVID-19 pandemic,” Toronto Star (May 21, 2020).
  2. See, e.g.The COVID-19 pandemic has changed the way people think about plant-based eating and its role in protecting personal and planetary health,” Food & Beverage Insider (February 24, 2021).
Cite as: Angela Fernandez, Henry Bergh, the American Society for the Prevention of Cruelty to Animals, and the Horse, JOTWELL (February 21, 2022) (reviewing Ernest Freeberg, A Traitor to His Species: Henry Bergh and the Birth of the Animal Rights Movement (2020)), https://legalhist.jotwell.com/henry-bergh-the-american-society-for-the-prevention-of-cruelty-to-animals-and-the-horse/.

Family-Making in an Age of Scarcity

Sara Matthiesen’s Reproduction Reconceived offers a dark but crucial perspective on the idea of privacy at the heart of Roe, a liberty from government interference that the Supreme Court resolutely insisted did not carry any entitlement to support for family-making. Matthiesen reconceptualizes Roe’s central concept—a privacy right to make the decision to terminate a pregnancy—as a willingness to sign off on government neglect of those at the margins. Reproduction Reconceived offers a fascinating glimpse of the real-world costs of negative rights and explores how grassroots movements seeking support for families navigate a legal system that often rejects the idea of any entitlement to government support.

Matthiesen traces the obstacles facing lesbians and incarcerated people seeking parental rights, who confronted a combination of incomprehension and neglect. Reproduction Reconceived also documents the dangers of family-making for those to whom the state was indifferent, particularly pregnant people with AIDS or Black people confronting spiraling rates of infant mortality. The obstacles facing many of those making the choice to have a family, Matthiesen argues, helped propel one of the most successful initiatives of the antiabortion movement—the creation of crisis pregnancy centers (CPCs). Far from being unwitting dupes convinced that they were visiting abortion clinics, as some pro-choice leaders suggested, the people who turned to CPCs saw them as “the last line of defense against poverty, homelessness, and food insecurity.” (P. 21.)

Matthiesen’s study of family-making at the margins begins with lesbian couples using artificial insemination by donor (AID) and seeking parental rights. Matthiesen chronicles lesbians’ quest for “woman-controlled conception” (P. 56), exploring how lesbians turned to friends and feminist sperm banks to achieve self-insemination. But as Matthiesen notes, a backlash to lesbian family-making encouraged couples to turn to lawyers for help. By the 1990s, reliance on legal change had produced a compromise: same-sex couples could gain formal recognition, but only if they complied with certain legal requirements governing insemination at sperm banks or through private physicians. Those who best took advantage of these rules tended to be white and middle-class, Matthiesen writes, while low-income, nonwhite LGBTIQ families’ journey to parenthood remains fraught with uncertainty.

Reproduction Reconceived next turns to the obstacles facing women trying to parent in prison. Matthiesen explores the legal rules and unspoken assumptions that led women in prison to see their children almost automatically placed in foster care and probes the failure of state and national experiments to end parent-child separation. A mix of governmental indifference and hostility in the era of tough-on-crime mandates ensured that programs to help incarcerated mothers made nothing but empty promises.

The centrality of neglect in Matthiesen’s story carries through in her analysis of Black infant mortality. She studies social movement campaigns in Philadelphia and Oakland to improve outcomes for Black newborns. While the government expanded Medicaid for pregnant people, legal changes did not address the pre-pregnancy period so essential to infant survival, ensuring that issues with infant mortality would remain.

Neglect—and assumptions about women’s reproductive capacity—similarly helped to explain the exclusion of women with AIDS from drug trials. Having painted a compelling picture of the challenges and constraints on family-making for those at the margins, Matthiesen returns to the abortion debate and pivotal role played by crisis pregnancy centers. Reproduction Reconceived shows how CPCs thrived during the Reagan era and into the presidential administration of George W. Bush because they fulfilled conservatives’ vision of a slimmed down government handing over responsibility to a network of volunteers. Pro-choice leaders long argued that these centers misled women who believed that they were at abortion clinics. Matthiesen shows instead that women facing racism, incarceration, unemployment, underemployment, and lack of access to health care knowingly turned to CPCs as a last resort to meet their basic needs.

Reproduction Reconceived historicizes the medical, legal, and political shifts that made it hard for low-income families (and especially families of color) to take advantage of the choice to form families promised by Roe and its progeny. Matthiesen spotlights the importance of the law and policy of government inaction—conscious and consequential—in a variety of legal areas not often central to discussions of reproductive rights. In turn, she documents how government neglect led to the expansion and success of part of the antiabortion movement.

Reproduction Reconceived is also a powerful study of social movement strategy. This timely history offers a sense of the challenges facing a post-Roe movement for reproductive justice, challenges that reach beyond overtly antiabortion mandates to government indifference and a tendency to blame families for their own struggles. Often, as Matthiesen shows, those seeking support from the government struggled to make themselves visible—to identify themselves as deserving parents and to gather data to show the responsibility of policy for the outcomes they suffered. Reproduction Reconceived illuminates the importance of these strategies for movements seeking legal change. Identifying something as a problem—and convincing the government that it has some responsibility for it—emerges as a crucial organizing step in Matthiesen’s account.

For those seeking reproductive justice, there are no easy solutions in Reproduction Reconceived, but as Matthiesen documents, the history of inaction, misunderstanding, and hostility that characterizes governmental attitudes toward poor families is a core issue for those seeking to understand what reproductive choice really means. The problems that Matthiesen identifies will likely become much worse in a post-Roe America, especially since the states with the most sweeping laws against abortion have the worse outcomes for children. But Reproduction Reconceived ably demonstrates that seeing the depth of a problem and knowing how it began is a necessary step for social change. In this original and important book, Matthiesen accomplishes just that.

Cite as: Mary Ziegler, Family-Making in an Age of Scarcity, JOTWELL (January 20, 2022) (reviewing Sara Matthiesen, Reproduction Reconceived: Family Making and the Limits of Choice after Roe v. Wade (2021)), https://legalhist.jotwell.com/family-making-in-an-age-of-scarcity/.

Telling the Story of Natural Law in America

Natural law is a topic that comes up frequently in legal history and legal theory but it has only rarely been the focus of study by American historians. Stuart Banner’s new book, The Decline of Natural Law, about how American lawyers used natural law and why they stopped doing so brings some welcome light to this important subject. A few years ago, the great historian of English law Richard Helmholz bridged the gap from Europe to America with his insightful volume Natural Law in Court. Banner picks up where Helmholz left off, to explore why practicing lawyers and judges stopped invoking natural law (and pointing to the nineteenth century as the key transitional period).

Natural law, as used in this book, refers to the idea that certain principles of law can (and ought to be) perceived by right reason in accord with the nature of things. This was often explained, historically, as a characteristic of God’s design for the world (though natural law as such was accessible to reason without any reliance on special revelation). The title of Banner’s book immediately tells us that his is a declension narrative. In the century-plus that is the focus of his book, natural law went from being a widely accepted part of American law to being rejected as unworkable and naïve.

In the first part of the book, Banner surveys the landscape of American law when natural law was a regular part of the conversation. Banner’s book is not primarily an intellectual history. This is not about the ideas of theorists but about the lawyers and judges who used natural law and about the place of natural law in American legal culture. His exposition of the common lawyers’ worldview is clear, concise, and sympathetic. (It can be profitably read in conjunction with Kunal Parker’s insightful study of common law theory before modernism.) Lawyers believed that the common law was found rather than invented by judges and that it was based on custom and reason—the latter being the domain of natural law. Common law was often thought of as the application of natural law to specific circumstances and cultural instantiations.

In the second part, Banner shifts to describe several factors that contributed to the declining influence, prestige, and acceptance of natural law. Written constitutions took the place of natural law as providing a basis for evaluating the validity of statutes and constitutions. The increase of legal publishing (particularly of reported cases) made it less likely that practicing lawyers would need to turn to natural law as a gap filler. Religion was increasingly separated from law, and natural law with its traditionally theistic assumptions was likewise separated from legal practice.

The final chapters note that natural law declined but never completely died. Its influence lives on, not just among theorists who (though a minority) continue to advocate for natural law in academic jurisprudence. It also has long-lasting echoes in more concrete legal fields. Banner notes Supreme Court’s references to the meaning of life and of liberty in some of its more contentious recent opinions on personal autonomy; he also cites the natural law overtones in international human rights arguments.

Banner writes clearly and concisely. What could easily have become a dense discussion of abstract legal theory stays grounded in the lively arguments and concrete cases of history. Banner’s choice to provide an internal account of the law keeps the text manageable, but comes at a cost. Much of the story of why natural law declined is happening outside the frame. Why did lawyers begin to view law and religion as separate domains in the latter half of the nineteenth century? What drove thinkers like Langdell or Holmes to obsess over natural or social sciences as the model for legal theory? Questions like these would require contextualization in a much broader conversation about American intellectual and cultural history, far beyond the scope of Banner’s book.

Limits notwithstanding, The Decline of Natural Law deserves a wide readership among legal scholars. Any teacher of law would be well-served by thinking with the lawyers of the past about how reason, tradition, and custom shaped the common law system—and how changing beliefs over time shaped and re-shaped the range of possibilities for legal arguments. Legal historians will find this a helpful jumping-off point for study of an important shift in understanding what the law is at a foundational level. Constitutional scholars who debate the historical meaning and ongoing applicability of natural law or natural rights can benefit from a better understanding of natural law’s history. Those inclined more towards theory and jurisprudence will find this a helpful account of how philosophy of law affects practice and vice versa.

Cite as: Lael Weinberger, Telling the Story of Natural Law in America, JOTWELL (December 14, 2021) (reviewing Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (2021)), https://legalhist.jotwell.com/telling-the-story-of-natural-law-in-america/.

When Private Equity Serves the Public Good: Woody Holton’s “Capitalist Constitution”

Woody Holton, The Capitalist Constitutionin American Capitalism: New Histories, (Sven Beckert & Christine Desan eds., 2019).

Is capitalism good? A growing number of historians suggest no, particularly scholars affiliated with the New History of Capitalism, a trending field with close ties to Harvard and a deep interest in locating slavery at the center of the American experience. However, historian Woody Holton strums a more positive chord in his recent essay, “The Capitalist Constitution,” part of a larger anthology edited by Sven Beckert and Christine Desan styled American Capitalism: New Histories. Holton reminds us that the Framers’ anti-democratic interest in finance may not have been a bad thing, laying the foundations for a dynamic market economy that would propel the United States forward for the next two centuries.

Interested in the “actual motivations” that brought the founders to Philadelphia in 1787, Holton focuses on two compelling, if understudied concerns: an interest in preventing states from printing paper money and a related interest in preventing states from enacting legislation that impaired contracts. Both measures, on their face, seem rather obscure. Neither bore directly on the question of slavery. Nor did they relate to the reasons generally thought to have prompted the call for a robust, national Constitution: including the inadequacies generally associated with the Articles of Confederation.

However, Holton argues persuasively that the Framers shared a deep economic interest in creating a political order conducive to raising capital, an order that, in turn, favored investors by reassuring them that electoral majorities would not use the political system to devalue currency (by printing paper money) and/or erase debt by enacting legislation infringing on contracts. Since most voters were small farmers who relied on debt to carry them through harvest (and faced foreclosure when they could not pay their creditors), they liked the idea of printing paper money and also legislation cancelling contracts (specifically their obligations to pay back their loans). Therefore, the matter of creditors rights became an anti-majoritarian one, interesting primarily to elites.

For example, Holton demonstrates that James Madison—the purported “father” of the Constitution—struggled to raise capital for land deals in New York that he felt promised higher returns than his slave-generated wealth in Virginia. Yet even Madison struggled to find investors willing to front him the money. As Holton puts it, “it was becoming harder and harder for men like [Madison] to convert their land and slaves into cash,” meaning that they found themselves increasingly reliant on private equity for their ventures.

Here, capitalism’s thirst for credit helped forge a Constitutional order that would—ultimately—prove the undoing of the agrarian, static South. Although Madison, Jefferson and Washington all relied on slavery for their livelihoods, slavery by itself did not generate sufficient wealth for them to grow their enterprises—leaving them oddly in debt. To compensate, they became entrepreneurs/speculators, a move that is often forgotten but worth remembering, if for no other reason than it ties together a fistful of loose historical ends. For example, the Framers’ need for private equity explains the alarm generated by debtor revolts like Shay’s Rebellion, which convinced the Framers that contracts warranted more protection than democracy. Further, it explains why those Framers who relied on slavery, a static form of capitalism rooted in coercion, also endorsed a more dynamic version of investor capitalism rooted in competition and risk. They realized, for example, that making America friendly for investors would ultimately benefit themselves more in the long run than myopic schemes aimed at debt-relief.

Holton’s concise essay should be of interest to legal historians interested in the Contracts Clause, as well as Constitutional historians generally. For one, it helps to explain why slave-owners like James Madison favored a dynamic form of investor capitalism that would—by 1860—dramatically out-produce the slave-South. For another, it underscores the anti-democratic tendences rampant at the Founding, even as it adds nuance to arguments about American democracy like the one made by Michael Klarman in his recent book The Framers’ Coup: The Making of the United States Constitution (OUP 2016). Klarman laments the anti-democratic nature of the Constitution’s structure, even calling for a rethinking of the modern Senate.

Cite as: Anders Walker, When Private Equity Serves the Public Good: Woody Holton’s “Capitalist Constitution”, JOTWELL (November 16, 2021) (reviewing Woody Holton, The Capitalist Constitutionin American Capitalism: New Histories, (Sven Beckert & Christine Desan eds., 2019)), https://legalhist.jotwell.com/when-private-equity-serves-the-public-good-woody-holtons-capitalist-constitution/.

Fighting Racism in Travel and Transportation

Mia Bay’s fantastic new book, Traveling Black, is both a richly detailed history of travel and transportation from the late nineteenth century to the 1960s that centers the experiences of Black travelers, and a deeply researched history of resistance to discrimination that brings to light those travelers’ active and ongoing efforts to demand equal treatment.

Bay keeps the focus on Black travelers throughout, explaining in granular detail all of the ways in which one’s experience of travel depended on one’s race. The first several chapters each focus on a single form of travel—railroad, car, bus, and airline. In each chapter, Bay offers detailed descriptions of how formal and informal restrictions imposed by white lawmakers and business owners affected where and how Black travelers were able to ride, drive, wait, eat, drink and sleep. One notable strength of Traveling Black is Bay’s ability to tell a national story about multiple kinds of transportation while also directing readers’ attention to how the “complex pastiche of law and custom created racial rules that were too inconsistent to be easily followed—or endured.” (P. 8.) Practices differed by region, by state, and by city. Some of the discrimination, segregation, and exclusion she describes was a matter of individual discretion or business practice or local custom. Airlines, for example, created “a variety of unobtrusive approaches to discouraging Black passengers—which never ended up in court.” (P. 210.) In other areas these practices were supported by formal laws requiring segregation and empowering transportation workers as enforcement agents.

Throughout the book, Bay makes clear how much work white business owners and white government officials put into imposing racial hierarchies on each new travel experience. Allowing travelers to intermingle would have required little effort, but suggested a kind of racial equality that was anathema to white decision-makers. For businesses and officials committed to making racial hierarchies clear, each new form of transportation was its own challenge, as trains, cars, buses, and airplanes each had different seating configurations, technologies, economics, and regulatory regimes. Thus, for example, Black passengers were directed to separate railroad cars, to the rear seats in a bus, and to the front seats of an airplane—in all cases the least comfortable location, and one that assured white travelers of their own social position. Travelers also created demand for various related businesses—including railroad and bus depots, airports, gas stations, hotels, campgrounds, restaurants, and airport taxis—and here too local businesses and government officials sought to ensure that Black travelers were treated worse than white travelers, or refused service entirely.

Bay also highlights how class and wealth intersected with racial discrimination. Wealth couldn’t improve a Black traveler’s railroad experience (with the exception of Pullman cars) or bus trip; it could, however, allow that same traveler to purchase an automobile and avoid trains and buses altogether. This raised new complications, though. As Bay points out, “Cars, which were available to anyone who could afford to buy one, challenged the Jim Crow South’s carefully regulated social order.” (P. 124.) Black travelers whose cars were too nice drew additional scrutiny from police.

In every area of travel, Bay demonstrates, Black travelers resisted, protested, amplified complaints, called on businesses and governments to act, and sued to challenge the white supremacist laws and customs they encountered. Black travelers drew on a variety of legal arguments, including nondiscrimination language in the Interstate Commerce Act of 1887 and its amendments and the Federal Aviation Acts of 1938 and 1958, that the agencies in charge had failed to enforce. Bay urges us to rethink our histories of this era in order to acknowledge a much longer and more extensive pattern of resistance than previously known; these actions “document a sustained fight for mobility that falls largely outside the organizational history of the civil rights movement.” (P. 3.) This deeply researched book brings this fight to light, and in particular makes excellent use of Black newspapers to describe a lot more use of the courts than well-known court victories demonstrate.

These efforts, however, led to little practical change. Bay demonstrates the difficulties of legal challenges to these practices, given the confusing and often overlapping jurisdictional boundaries involved. Interstate and intrastate travel were constitutionally distinct, so railroad depots, restaurants, taxis, gas stations, and airports were legally different spaces than were railroad cars and airplanes. (And airports, mostly constructed with federal funds, were themselves not subject to the same rules as bus and railroad depots.) Railroads, buses, and airlines, as common carriers, were subject to different rules and laws than automobiles, and railroads and buses were subject to one federal agency (the ICC), while airlines were subject to others (the Civil Aeronautics Board and the Federal Aviation Administration). Bay deftly navigates these differences, always making clear to the reader what the legal status of each space was, how parties attempted legal challenges, and, as often happened, which nondiscrimination provision(s) those in charge of the space were choosing to ignore.

A key theme of the book is the ineffectiveness of legal and policy wins untethered to strong enforcement. Bay describes the legal victories along the way, but also how they did little to change Black travelers’ experiences. Some businesses responded to complaints with concern and promises of improvement, but did nothing. Hard fought victories in court or before the Interstate Commerce Commission (ICC) were not enforced. The final two chapters tell the somewhat more familiar story (to legal historians, anyway) of more successful efforts to fight transportation segregation. Black passengers begin winning in federal court (in cases like Morgan v. Virginia (1946), Gayle v. Browder (1956), and Boynton v. Virginia (1960)) and before the ICC (in Keys v. Carolina Coach Co. (1955)). Direct action efforts like the Montgomery bus boycott and the Freedom Rides brought additional public attention to the issue of racial discrimination in transportation. However, even these widely touted victories were not enough to change the experience of travelers. Businesses continued to simply decline to comply with laws and rulings and administrative orders, and not until the 1960s, when the Department of Justice and the ICC finally began aggressively enforcing judicial decisions and statutory bans on discrimination, was there real change in businesses’ behavior.

The book concludes with the Civil Rights Act of 1964, Title II of which stated a broad national rule against racial discrimination in public accommodations affecting interstate commerce. As Bay describes, “Enforced by the Department of Justice and supported in the courts, Title II of the 1964 Civil Rights Act worked in tandem with the ICC’s 1961 ruling barring racial segregation in interstate transportation and put a decisive end to many of the most galling indignities that Blacks had long suffered. While racism is far from dead, the desegregation of public accommodations was, and still is, one of the civil rights movement’s most important achievements. Its impact in the field of transportation was nothing short of transformative.” (Pp. 304-05.)

Bay’s epilogue, however, warns the reader that, as effective as the Civil Rights Act was in stopping most discriminatory practices that bedeviled Black travelers for most of the twentieth century, white supremacy finds a way. Bay briefly sketches some ways transportation discrimination has manifested since 1964, noting the demise of and defunding of public transportation in urban areas; the construction of highways through historically Black neighborhoods; suburbanization, white flight, and Americans’ increasing dependence on cars; and discrimination by “private” AirBnB hosts. In addition, Title II did nothing to address the risk police traffic stops pose to Black drivers—a problem that has grown substantially worse with the vast expansion of policing since the 1970s. “Black Lives Matter, like many of the earlier civil rights initiatives chronicled in this book, has taken shape at least in part around the dangers of traveling Black.” (P. 318.) Bay ties all of this into a broader point about the limits of formal law; “Many of the forms of racial discrimination encountered by African American travelers were informal rather than required by law, and many of them have not been eradicated. Today, as in the past, civil rights laws are not always successful in protecting Black travelers.” (P. 307.)

Cite as: Joanna Grisinger, Fighting Racism in Travel and Transportation, JOTWELL (October 18, 2021) (reviewing Mia Bay, Traveling Black: A Story of Race and Resistance (2021)), https://legalhist.jotwell.com/fighting-racism-in-travel-and-transportation/.

What Does Civil-Rights History Have to Say About Abortion?

Jennifer Holland’s well-researched, captivating history will open a new chapter in historiographic debates about the pro-life movement’s roots—and about the racial politics of abortion. Focusing on antiabortion organizing in the Four Corners region of the United States (an area encompassing all or part of Colorado, Utah, Arizona, and New Mexico), Tiny You explores how abortion became (and remained) the defining political issue for social conservatives. Holland offers a provocative look at the long shadow cast by civil rights law on so many of our debates, exploring how conservative social movements have laid claim to those traditions in profoundly consequential ways.

In recent years, historians of the 1960s and 1970s have documented how abortion foes redefined their cause as a quintessentially legal, rather than religious, cause. The movement successfully leveraged the strategies of the civil rights movement to justify restrictions and outright bans on abortion. Pro-lifers relied on the rhetoric of civil rights in the political and legal arena. In court, pro-life attorneys invoked race-discrimination jurisprudence, pointing to the Equal Protection Clause to establish unborn children as a protected minority. Some scholars suggest that pro-lifers’ turn to civil rights was both sincere and transformative. What had been a Catholic movement won allies with different political perspectives and religious backgrounds. In the late 1960s and early 1970s, some secular activists, Mormons, Orthodox Jews, and mainline Protestants had joined the movement. By the 1980s, evangelical Protestants, even those opposed to busing and key planks of the civil-rights agenda, joined the movement in increasing numbers. By moving away from explicitly Catholic arguments—and by playing down opposition to contraception—abortion foes built a more religiously diverse movement. All the while, as pro-lifers painted their struggle as a fight for civil rights, the movement remained predominantly white.

Holland makes sense of the complex racial politics of abortion. She argues that the struggle over abortion allowed conservative white Christians “a new type of racial identity, one based on […] claims to morality and common sense.” (P. 28.) In her view, abortion foes appropriated civil rights rhetoric all while changing what it meant, neglecting questions of racial justice, repositioning (often white) fetuses as victims, and reclaiming the moral high ground for white activists opposed to abortion.

Starting in the 1960s and 1970s, Tiny You begins by examining how conservative Catholics mobilized to oppose pornography and contraception. These fights created conservative Catholic networks that would later field prominent activists in the abortion conflict. Central to this mobilization was the circulation of powerful fetal images. From the beginning, these images had everything to say about race and racism in America. Holland chronicles how antiabortion leaders like Dr. John Willke and his wife, Barbara, courted support in Utah by stressing images of white fetuses, all the while pitching their cause as a fight to protect embattled minorities. Antiabortion leaders insisted that by denying the personhood of human beings, abortion resembled slavery and the Holocaust. Abortion opponents Denying fetal personhood would create a slippery slope, abortion foes maintained. Soon, the United States might deny the personhood of the elderly, the disabled, or other vulnerable groups.

Tiny You challenges leading historical accounts of why and how the antiabortion movement turned to civil rights arguments. Holland, like historian Daniel K. Williams, recognizes that the antiabortion movement relied heavily on the history of civil rights. The adoption of civil rights rhetoric unquestionably had a strategic dimension. The antiabortion movement faced headwinds as long as many believed it was a front for the Catholic Church. Williams, however, asserts that this shift reflected deeply held beliefs about “the feminism of difference” and “the social welfare politics of New Deal liberalism.” (Williams, Pp. 6-7.) New Dealers embraced programs intended to protect the vulnerable, especially the poor. Pro-lifers believed that protection for the unborn (as well as for low-income mothers) would fit well in this kind of New Deal vision. Williams highlights the work of antiabortion Democrats who supported workers’ rights, a living wage, and employment protections for minorities and women. In his view, the fight over abortion pitted two visions of liberalism against one another, at least before the Supreme Court decided Roe v. Wade and abortion foes aligned with the Republican Party. Holland’s rich narrative complicates this account and forces us to revisit the complex racial politics of abortion.

These arguments had a legal as well as political dimension. Invoking the Thirteenth Amendment, abortion opponents insisted that Roe v. Wade denied fetal personhood just as slavery had denied the personhood of Black Americans. After 1973, abortion foes demanded a constitutional amendment of their own. But Holland shrewdly notes that antiabortion activists in the Four Corners region rarely put direct effort into fights against racism or anti-Semitism. In New Mexico, for example, antiabortion leaders did not work with Chicano or American Indian activists concerned about sterilization abuse. Holland reasons that members of a predominantly white antiabortion movement meant something very different by human rights and civil rights than did their nonwhite neighbors. Indeed, antiabortion advocates often insisted that abortion was worse than the Holocaust or slavery because “fetuses were the only innocents, the truly helpless.” (Pp. 88-89.)

Holland meticulously documents how the racial politics of abortion shifted in the 1980s and 1990s, as the movement began to focus on woman-protective arguments. Tiny You offers an inside look at crisis pregnancy centers (CPCs) that helped to spread these arguments. These organizations set out to mobilize what they called post-abortive women, contending that the procedure denied them civil rights. CPCs primarily identified white activists but provided services to a diverse clientele. But while ministering to women of color, CPC leaders played down any role played by race or class in the struggles their clients faced. Instead, CPCs pressed the claim that abortion alone was to blame for what women faced. Tiny You offers a different perspective on the rise of the conservative movement in the West in the period, showing how abortion foes grappled with racial politics in complex, sometimes surprising ways.

The effects of abortion’s racial politics were legal as well as political. CPC leaders helped to pass informed-consent laws and overhaul the allocation of federal family planning dollars. The movement also made its impact felt in sex education policy. After Congress passed the Adolescent Family Life Act in the early 1980s, antiabortion activists used federal money to pitch their own sex education programs, including Sex Respect, an abstinence-centered approach that framed both premarital sex and abortion as “deadly.” (Pp. 171-73.)

Holland explores how this campaign, like so many, contested the meaning of civil rights in modern America. By often foregrounding the abortion of white children, abortion opponents claimed that whites too were victims. And by arguing that abortion was at once “the root of racism” and “the source of women’s oppression,” the activists in Holland’s story found ways to claim the mantle of the civil rights movement without embracing measures to eliminate discrimination on the basis of race or sex.

The pro-life movement’s complexity makes it even more important to have compelling histories like this one. Readers need not accept every dimension of Holland’s story to recognize its importance. Those most likely to have abortions, or to feel the effects of abortion restrictions, are not white. Yet as Holland convincingly shows, white conservative activists have worked to redefine our civil rights tradition, with consequences that we still just beginning to understand.

Cite as: Mary Ziegler, What Does Civil-Rights History Have to Say About Abortion?, JOTWELL (September 16, 2021) (reviewing Jennifer Holland, Tiny You: A Western History of the Anti-Abortion Movement (2020)), https://legalhist.jotwell.com/what-does-civil-rights-history-have-to-say-about-abortion/.