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Freedom by Custom: Vernacular Legalisms in Nineteenth-Century Cuba

Freedom with Local Bonds: Custom and Manumission in the Age of Emancipation examines the ways in which claims to freedom were interpreted by judges who drew on local custom in contested manumission suits in 19th century Santiago de Cuba. Slavery scholars have long examined manumission in Cuba (known as coartación) as the practice of paying for one’s freedom with fixed instalments and terms agreed upon by both the enslaved and enslaver. Drawing on the Roman law concept of peculium, enslaved people could earn wages and pay a portion of these towards their purchase price. Coartación was one strategy that created a status of conditional freedom. Other manumission strategies included promissory notes of freedom for terms of service, typically conveyed through testament at death and at baptism. Notwithstanding this plurality, Chira shows that coartación accounted for 75% of the manumissions in Santiago de Cuba during the 19th century. Because these were arrangements that stretched over considerable periods of time, the legal status of conditionally freed people was often nebulous and dependent on local customary interpretations of freedom contracts. Although the enforcement of manumission contracts was ultimately a legal matter, Chira shows that jurists depended heavily on local custom to rule in the cases she examines.

The article examines the local bonds, community ties, landholding patterns, and economic exchanges that manumission depended on—given its relatively sparse doctrinal or formalist treatment in the law. In so doing, Chira pushes us to “consider an alternative genealogy of freedom ideologies in the 19th century.” (P. 950.) Cuba was one of the last two nations to abolish slavery in 1886. The aftermath of the Haitian Revolution unfolded simultaneously with the voracious global demand for sugar for mass consumption. As such, 19th century Cuba experienced plantocracy expansion, black repression, and dependence on enslaved labor for sugar. This scenario would not have created the propitious conditions for manumission. Yet as Chira shows, enslaved people had been pursuing individual paths to freedom through the courts throughout the century. In fact, free people of color represented one-third of the population in Santiago de Cuba, and nearly half of its landholdings were owned by free people of color. (P. 959.) As Chira notes, numbers like these tell one story, but they also reveal very little about “the vexed dynamics of manumission.” (Id.)

Freedom with Local Bonds examines two core arguments that will be of interest to legal historians and slavery scholars more broadly. The first is what Chira calls “vernacular legalism,” (P. 953) and the second revisits the contested argument about African slaveholding patterns as “wealth in people.” (P. 959.) Given her interest in local patterns of emancipation and dependency, Chira turns to notarial and judicial archives—particularly in testaments– to unravel the bonds of affective and material debts. Free black women’s testaments reveal “locally specific hierarchies [of clientelism] often structured around segmentary kinship in which power arose from control over people.” (P. 960.) Free black women often paid the price of freedom up front and then recouped their costs through secondary payments from the coartado’s earnings. Other women acted as godparents of black people and children whom they owned. These were complex relationships casting light on processes of emancipation bound by clientelism and kinship. As property is paramount here, Chira turns our attention to the long overdue conversation about African slaveholding patterns as wealth in people raised by Miers and Koptyoff in the 1970s. Local records allow us to confront how formerly enslaved people invested in the enslavement of others—pushing us away from easy conflations of racial solidarity and urging us to consider the ways in which black people “produced emancipation from below through custom.” (P. 962.)

The article concludes by acknowledging the conundrum that many slavery scholars regard manumission as a tool of social control, “designed to discipline enslaved people with the promise of freedom.” (P. 976.) Manumission was an individual remedy, stretched over time, creating tiers of dependency and conditional freedom. It is perhaps unfairly compared with other collective paths to freedom such as revolution and abolition. Through her archival reconstruction, Chira unearths alternative rural paths to emancipation that are not aligned with liberal trajectories of freedom. In so doing, she urges us to expand our notions of freedom and legal activism by showing how enslaved and free people of color actively shaped the working of the local judicial system, producing emancipation through custom.

Cite as: Michelle McKinley, Freedom by Custom: Vernacular Legalisms in Nineteenth-Century Cuba, JOTWELL (August 4, 2022) (reviewing Adriana Chira, Freedom with Local Bonds: Custom and Manumission in the Age of Emancipation, 126 Am. Hist. Rev. 949 (2021)), https://legalhist.jotwell.com/freedom-by-custom-vernacular-legalisms-in-nineteenth-century-cuba/.

Contesting Birthright Citizenship: The Aftermath of Wong Kim Ark

When assessing a canonical Supreme Court case, legal scholars often emphasize the road to the case and its decision, and then move on. It is the issuing of the decision that ends the discussion. But there is much to lose if we do not take seriously the aftermath of a case and ask how that decision translated into actual legal practice. This is the important work that Amanda Frost does in her article on the canonical 1898 case United States v. Wong Kim Ark, which upheld the Fourteenth Amendment’s guarantee of citizenship to those born on U.S. soil. The case is heralded as a moment of enlightenment amid a dark exclusionary era, but this article reveals a far more complicated legacy. Frost mines the archives to bring us the startling discovery that Wong Kim Ark’s citizenship was far from settled after the Court issued its decision, despite its unequivocal holding.

By Accident of Birth artfully weaves together multiple strands, including the legal history of birthright citizenship, the social history of Chinese Americans, and the family history of Wong Kim Ark, to shed new light on this landmark case. Wong Kim Ark’s personal and family history serve as the organizing frame for the article. Wong was born in San Francisco in 1870, just two years after Congress ratified the Fourteenth Amendment and twelve years before passing the first Chinese Exclusion Act. His parents lived in the U.S. legally for many years prior to his birth, but they – like other Chinese migrants and Chinese Americans—were commonly subjected to discriminatory state and local laws as well as vigilante violence.

In 1871, a white mob attacked San Francisco’s Chinatown, destroying businesses and assaulting residents. Wong and his family returned to China not long after, but Wong himself maintained his connection to his birthplace, returning as a young man and taking up work as a cook in a mining camp. He made two more trips back to China, returning to the U.S. each time. Given that he was admitted without incident twice, Wong likely thought that his citizenship was settled, but on return from his third trip in 1895 he was detained by immigration authorities. They claimed he was not a citizen and had no right of entry.

By this point, the Fourteenth Amendment had been in place for three decades, but a court had not yet definitively interpreted the birthright citizenship clause as it applied to children born to immigrants on U.S. territory. As Frost explains, government authorities sought a test case, hoping that the courts would declare the children of noncitizens born on U.S. soil to be unable to claim the right of citizenship. Wong’s detention was an intentional flexing of the immigration bureaucracy to force the Court to interpret the Amendment. Much to the government’s chagrin, the Supreme Court came out in favor of Wong Kim Ark, establishing the principle of birthright citizenship even for those born to immigrants who were barred from naturalizing.

The dispute was, on its face, about immigrants and their children, but Frost shows how the case was also a referendum on the legitimacy of the Fourteenth Amendment itself. The Solicitor General, a veteran of the Confederacy, used his time in oral argument to question the validity of the Amendment, while in contrast Wong’s attorneys spoke forcefully for its lawfulness. As Frost aptly notes, “the Civil War itself was on trial.” (P. 59.) Given this subtext, it is perhaps less surprising that the Court would ultimately hold for Wong, despite the prevalence of anti-Asian sentiment at the time.

Wong Kim Ark’s journey to the Supreme Court is not a new subject; other historians, including most notably Lucy Salyer and Erika Lee, have written extensively about this case and about the interactions of Chinese migrants with American law more generally. Where Frost treads especially new ground is in tracing the aftermath of the case through archival records. The administration of the law by executive branch officials routinely undermined the principle of birthright citizenship, forcing Wong and his family to continue to fight for their rights despite the Court’s unambiguous decision. Wong himself was arrested and imprisoned in Texas in 1901, suspected of being unlawfully in the country. It took a year and protracted efforts before the government again declared that Wong was, in fact, a U.S. citizen.

Frost traces the ordeals of Wong’s Chinese-born children, who were U.S. citizens by virtue of their father’s citizenship but who faced significant opposition when they tried to enter the country to be with their father. They, like other Chinese-American entrants claiming citizenship, were subjected to exhaustive and detailed interrogations, invasive physical exams, and prolonged detention in miserable circumstances. The agency’s procedural requirement that claimants produce two white witnesses to testify to their birth all but guaranteed that many rightful citizens would be barred from entry or deported. This multi-generational story shows just how tenuous birthright citizenship claims could be, even in the aftermath of a definitive landmark Supreme Court decision.

Frost also sheds light on the ways that Chinese migrants resisted exclusion, through the courts as well as through coordinated efforts to evade immigration control. As Frost recounts, one of Wong’s four sons was later revealed, by his own testimony in 1960, to be a “paper son” – one who made a fraudulent claim of citizenship in order to attain lawful status. The proliferation of such claims was not surprising given that there were so few paths to lawful migration. Ironically, the government’s “relentless documentation” and demands for minute details made it easier for fraud to proliferate. As Frost notes, “[a]ctual citizens, unprepared to run the gauntlet, could easily stumble over detailed questions about the location of houses in their home village or the exact names and birthdates of neighbors and children, even as well-coached imposters sailed through.” (P. 72.)

As this article convinces us, it is in the administration of citizenship law – and its challenge by means both lawful and unlawful—that we see the real impact and meaning of the Court’s decision in Wong Kim Ark. Even decades after the case was decided, citizens struggle to overcome the difficult bureaucratic hurdles placed in their way by other branches of the government. Frost’s new telling of this history helps us better understand both the promise and limitations of the core principle of birthright citizenship.

Cite as: Allison Brownell Tirres, Contesting Birthright Citizenship: The Aftermath of Wong Kim Ark, JOTWELL (July 6, 2022) (reviewing Amanda Frost, “By Accident of Birth”: The Battle over Birthright Citizenship After United States v. Wong Kim Ark, 32 Yale Journal of Law & the Humanities 38 (2021)), https://legalhist.jotwell.com/contesting-birthright-citizenship-the-aftermath-of-wong-kim-ark/.

(Familial) Meritocracy and (Non-)Revolutionary Change: Reproducing Inequality in Modern Legal Professions

Yzes Dezalay and Bryant Garth have been producing theoretically and methodologically innovative work on lawyers for nearly three decades. Their latest collaboration, Law as Reproduction and Revolution, extends their commitment to understanding the global and comparative dynamics of modern legal professions with greater ambition than any of their now classic works.

Here Dezalay and Garth (D&G) seek nothing less than to produce a global framework for understanding the modern production of elite lawyers. They build a theoretical framework for understanding how legal professions reproduce themselves in times of social change, in large part by developing critical histories of the legal professions in several European countries and the United States. They then illustrate how this framework helps explain 20th century changes in the legal professions of India, Hong Kong, China, South Korea and Japan—especially as impacted by interpretations of modern US legal professionalism.

It is exactly this aspect of the book that is most admirable. D&G demonstrate that good comparative, more so transnational, legal history is immensely demanding because it does not simply require a critical understanding of multiple legal traditions. Transnational analysis also requires a critical theoretical position on their global interconnections. This is especially true when modern legal professions proactively promote idealized versions of their histories and social function not only to domestic audiences but also increasingly to foreign interlocutors.

What makes Law and Reproduction and Revolution’s ambition so broadly engaging is that D&G carry out this project while also wading directly into current debates about social inequality and meritocracy. Arguments regarding the sources of social inequality routinely intertwine with arguments about the legitimacy of inequality itself. Proponents of meritocracy normatively sort various sources of inequality as good or bad, and then argue that while social systems properly oriented toward individual “merit” do generate inequality they do so in a socially productive manner. Concurrently, meritocracy, in contrast to some feudal or nepotistic norm, has often been used by minoritized groups to critique and gain access to institutions perceived as captured by entrenched, self-interested groups. Yet, systems of prestige and power are ever adaptive; newly ascendant notions of individual merit quickly become social produced and tied to older social patterns of inequality. A classic exemplar here is the history of standardized testing for university admissions.

D&G thus orient the book around explaining why many “revolutions” in modern legal professions have followed exactly this same pattern of radical challenges to the status quo that ultimately fail to subvert the inequalities that motivated them. Here D&G oppose “meritocracy” with “family capital” to show how norms of meritocracy are used by minoritized groups to challenge an entrenched legal profession—in many countries structurally dominated by familial capital. Legal elites respond to these new norms, and associated challenges to status quo legal practice, by adopting new meritocratic rhetoric while continuing to reproduce patterns of inequality in which family capital becomes highly correlated with new indicia of individual/legal merit. A rather consistent global exemplar here is access to elite Euro-American graduate and post-graduate legal degrees.

Theoretically, D&G use their two early chapters to articulate their most refined engagement with Pierre Bourdieu’s legal sociology, while integrating a critical reading of Harold Berman’s classic studies of legal revolutions in Europe. D&G emphasize Bourdieu’s argument regarding the particular role of lawyers in mediating between society and state power, and how lawyers ground their professional legitimacy by integrating different forms of social capital—notably both intellectual and financial capital. This gives many legal professions their particular quality of simultaneously making claim to inherited traditions while emphasizing individual merit. Understanding how this dynamic operates in practice requires understanding the socialization of lawyers as much as, if not more so, than it does their theories of law. Here D&G make pointed use of Bourdieu’s classic observation that brilliant legal upstarts in France would more often than not marry into legal aristocracies.

More theoretically novel for D&G is their use of Harold Berman and his study of “legal revolutions” to help readers understand how legal professions are able to maintain their social position even when ascribing to new theories of law or new forms of legal practice. D&G draw on Berman to describe this process as “rupture and recomposition.” (P. 25.) Integrating Berman’s insights adds a deeper historical dimension to their earlier work, and provides a clearer basis for showing how marginal legal ideas and actors are integrated into legal professions to help preserver their authority during larger political and social realignments.

D&G thus synthesize Bourdieu and Berman to identify the social patterns which allow legal oligarchies to persist even when outside challengers intend to upend an ancient regime. Here they engage English and European legal history to map out how varied modern models of legal professionalism were developed, and later informed and reconfigured by periods of empire and their imposition on colonized peoples.

The authors spend the next two chapters delving most deeply into the formation of the 20th-century US legal profession. They claim that aspects of the US profession became a global symbolic repertoire for modern attacks on established legal professions in other countries. Moreover, the ascent of the “Harvard Model” of legal education and the modern bar replayed exactly this pattern of meritocratic intervention into an entrenched regime, on terms which later frame arguments for inclusion by minoritized groups.

The history D&G present is decidedly critical. They reject the ideal of the modern US lawyer as achieving the pro-democratic or pro-equality effects on which lawyer self-regulation is premised. The role of the legal profession in the creation of early 20th century US empire is described as “enhancing corporate power abroad and legitimating corporate expansion and empire as according to the rule of law.” (P. 70.) Moreover, as they move through the Cold War, they extend their theoretical frame to encompass how the corporate bar used notions of social service and contribution to create a space where “moral entrepreneurs, the elite law schools, the liberal establishment, and corporate lawyers were in the process of coming together.” (P. 85.) It is this particular confluence of moral and legal merit that became so symbolically attractive elsewhere, but also helped obscure the incestuous patterns of familial advantage and wealth that continued to shape elite legal careers in the US.

It is impossible to do justice to the subsequent chapters of the book, each of which applies the author’s theoretical frame to one country—here again 20th-century India, Hong Kong, China, South Korea and Japan. True to their methodological ambition, in each chapter the authors focus on a point the country’s history when it encountered the symbolic force of the US legal profession and US-inspired symbols of legal meritocracy given US lawyer’s centrality in the post-World War II economic order. Common to each history is a particular class of social actors who saw reforming their domestic legal profession as a means to upset the ancient regime in which it functioned.

In each chapter, D&G use varying levels of historiographical engagement alongside their now-signature use of elite interviews. In doing so, as they routinely admit, scholars with focused expertise in the particular country will find details large and small to challenge. In their chapter on China, difficulties arise as Chinese legal history has advanced so quickly in recent decades to upend long-held misrepresentations. In their chapter on Hong Kong, where interviews play a more decisive empirical role, the views of respondents require a great deal of background knowledge to critically evaluate. And, as the last few years attest to, trends and developments of the past few decades can be upended quite quickly in each of the countries examined.

Yet, D&G make clear throughout Law as Reproduction and Revolution that they understand these limits. What they are trying to achieve in the book is both more ambitious and humble. That they give particular answers to any specific question is less important than establishing that there is a set of common questions facing legal professions, and that answers to these questions are transnationally intertwined.

Herein, the global patterns that Law as Reproduction and Revolution seeks to establish many would take as provocations. In all of the case studies, intentional external efforts to induce change in legal professions fail—even those carried out in countries which later turn to US models in their domestic debates. At the same time, local reformers who drew on US examples almost routinely end up with reforms that don’t lead to anything like US law schools or US legal practice in substance. Even nominally equality-inducing dynamics, such as practicing public impact litigation as a source of legal prestige, end up having the same non-revolutionary impact as D&G claim they have had in the US.

More critically, reforms which advance legal meritocracy to subvert ancient regimes are rarely the levers for combating inequality that their proponents hoped for. The victories of seemingly revolutionary legal ideas or forms recurrently fail to dislodge familial capital as a dominating variable in success as an elite lawyer. At best, these reforms create narrow pathways for accessing the cosmopolitan capital of elite global corporate practice—capital which ends up structurally dependent again on family capital.

Though not so bluntly stated, the book is especially provocative for those who study legal education, in that it illustrates how the particulars of what happens in law schools are far less important for the impact of legal practice on any given society than how the market for legal services is constructed. In particular, in any system that maintains a predominately private market for legal services, the statistical supermajority of lawyers will invariably gravitate to reproduce, rather than challenge, social inequality. Moreover, the transnational elements impacting most legal professions have led to changes that are largely restricted to a handful of elite schools, whose graduates form a globalized legal elite that often has more in common with elites in other countries than their local bars. Notably, the words “democracy” and “democratic” appear quite infrequently throughout the book.

In the end, Law as Reproduction and Revolution does demonstrate that any attempt to separate social theory and historiography, an often explicit methodological conceit of many historians, simply means leaving many implicit assumptions about human behavior and social organization unexamined. In practice, critical historical knowledge and social theorization are mutually essential. At the same time, D&G have laid out yet another aggressive statement that studying lawyers in sociological context is necessary for understanding not just national, but also the ever-growing transnational spaces of lawyering that intermix legal traditions. In the transnational context, these mutualities can be bewildering because of their complexity. But only by engaging with such complexity can more eternal questions, such as those that revolve around meritocracy, be addressed with clarity.

Cite as: Jedidiah Kroncke, (Familial) Meritocracy and (Non-)Revolutionary Change: Reproducing Inequality in Modern Legal Professions, JOTWELL (June 8, 2022) (reviewing Yves Dezalay & Bryant Garth, Law as Reproduction and Revolution: An Interconnected History (2021)), https://legalhist.jotwell.com/familial-meritocracy-and-non-revolutionary-change-reproducing-inequality-in-modern-legal-professions/.

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/.