Henry M. Cowles has written an absolutely brilliant book that traces the history of the idea of “the scientific method” from Darwin to Dewey. Although Cowles’ intended audience is historians of science, the book has important and tantalizing implications for those interested more generally in the twentieth-century modernist turn to method, process, procedure, and technique. This is a turn that American legal historians will recognize in the massive emphasis on procedure and process that marked twentieth-century American legal thought, beginning with the rise of the administrative state in the early twentieth century and reaching its apogee with the Legal Process School in the 1950s and 1960s.
The conventional account of the modernist turn to method runs as follows. Around 1900, thinkers in diverse realms of Euro-American intellectual life—ranging from law to literature, mathematics to music, physics to painting—became newly aware of the rickety scaffolding propping up their disciplines and endeavors. What were once deemed established truths, unassailable rationalities, given moralities, and transcendental aesthetic norms suddenly seemed spurious, the product of nothing but history, the tottering fabrications of fallible men. In the American legal context, this moment is exemplified in the scholarly writings, addresses, and judicial opinions of Oliver Wendell Holmes, Jr. The modernist moment was famously disorienting, simultaneously frightening and challenging, at once fraught with promise and uncertainty. Old moorings had come undone. How was one to make sense of the world? How was one to proceed?
Although responses varied widely depending upon discipline and national tradition, one broad important trend reverberated across diverse fields and formations. Thinkers increasingly turned away from a conception of knowledge as ends, truths, substances, and foundations and towards knowledge as tools, means, methods, procedures, processes, protocols, and techniques. This was true of the sciences, the principal focus of Cowles’ book. As he puts it, science went from being “something like knowledge” to becoming “a tool for thinking.” (P. 6.) But the trend extended far beyond the scope of Cowles’ study. A creature of the early twentieth century, scientific management theory, applied alike in government bureaucracies and corporations, placed ends firmly in the background as a knowledge of means, methods, and processes took center stage. Artists and writers foregrounded in their work their means of production—painterly technique or language itself—instead of the object those means had once served to represent. In the 1940s, articulating a development that was already decades-old when he was writing, the Legal Realist scholar Karl Llewellyn would argue that law was not so much ”what courts have decided” as it was “how they go about deciding cases, and how they use the authorities with which they work, and how and why those authorities themselves came into existence,” in short, that law was primarily a method or way of doing things.
Philosophy was hardly immune to this sweeping re-orientation. Indeed, it played a central role in bringing it about. American philosophical pragmatism, the United States’ most celebrated homegrown philosophical tradition, insisted that ideas mattered principally insofar as they became means or tools and were put to work in the world. Early in his book, Cowles invokes John Dewey’s How We Think (1910), in which Dewey announced the five sequential steps of what came to be seen as the blueprint for “the scientific method,” beginning with a “felt difficulty,” moving on to the identification of a hypothesis, and ending with “observation and experiment leading to its acceptance or rejection,” in short, the testing of the tool/hypothesis in the world of facts. (P. 2.) If Dewey was a key figure in the articulation of “the scientific method”—and thus in the reorientation of modern science from substance to method—it is important to emphasize that Dewey’s shadow (and hence the shadow of “the scientific method” as he imagined it) fell over fields extending well beyond the sciences to law, politics, education, and even the arts.
In a series of chapters that offer brilliant, penetrating, and highly self-assured readings of the writings of nineteenth- and early twentieth-century Anglo-American philosophers, philosophers of science, and scientists, Cowles gives us a history of how we got to Dewey’s How We Think. It is Cowles’ origin story—if a concept as simple as that of an “origin story” can be applied to so sophisticated a book—that is of interest.
As it emerged from the eighteenth century, Cowles argues, British science was still tethered to—and continued uncritically to venerate—Baconian empiricism. As revealed in the writings of Herschell, Whewell, and others, however, British philosophers of science were beginning to insist on the importance of hypothesis as a way for the scientist to proceed. Scientists could not begin from a brute collection of facts; they needed the conceptual leap into the void that the hypothesis represented. Of course, once formulated, the hypothesis would have to make its way in the world and be tested against the facts. It would succeed or fail based on how it would fare.
What Cowles shows dazzlingly is how, through a set of complex back-and-forth journeys (hence: no simple origin story), the injection of hypothesis into the empiricist terrain of British science came to be mirrored in the Darwinian account of nature itself and vice versa. Even as British scientists were coming to accept the idea that the scientific method should consist of hypotheses tested against facts, the Darwinian organism came to be seen as itself a kind of hypothesis as it confronted its environment, either to flourish or perish therein. And if evolution was neither more nor less than “the method of nature,” as the Darwinian account came to be understood to be, would that not also necessarily be the way in which the human mind proceeded, as a continual hypothesizing of ideas and a trying out of those very ideas in the world? As Cowles proceeds, exploring contexts ranging from the study of animals to the ethnography of “savages” to psychologists’ study of children, the link between Darwin and Dewey—a link of method—comes gradually into view. As exemplified in Dewey’s 1910 articulation of “the scientific method,” pragmatism’s “trial-and-error” approach to the world was, if one follows Cowles’ argument, nothing other than the Darwinian “method of nature” itself.
The star of the show in Cowles’ book is reflexivity. As philosophers and scientists thought harder and harder about the problem of knowledge, training their gaze relentlessly outward and inward, the lines between subject and object, mind and world, investigator and investigated, blurred and eventually vanished. Objects of inquiry became versions of the subjects performing the inquiry, even as those subjects rendered themselves objects. Cowles writes of his subjects’ “ratcheting up the reflexivity of the mind sciences” (P. 142), one of many comparable characterizations in the book, but one gets the impression that “ratcheting up … reflexivity” is as much Cowles’ own intellectual commitment as it is that of his nineteenth-century subjects. The reader senses Cowles’ enjoyment of his own bravura performance in talking about the bravura performances of his subjects. Here, too, then, investigator and investigated mirror one another, historian becoming archive and vice versa, reflexivity always leading to more of itself, although one is left wondering whether Cowles’ nineteenth- and early-twentieth century subjects were as invested in the pleasures of reflexivity—and the pleasures of method—as he so evidently is.
Cowles is not the first scholar to have explored the connections between evolution and pragmatism. Many have recognized that Darwinian evolution, together with pragmatism, played a crucial role in destabilizing the foundations of the Euro-American disciplines around 1900. But what Cowles does that is arresting, in my view, is to show to spectacular effect how the Darwinian “method of nature” underlies (even as it mirrors) the pragmatist method. Just as nature tested its hypotheses in the world, the Deweyan pragmatist (himself a part of nature) would try out his ideas in the real contexts in which he or she lived and worked. Cowles thus reveals that the pragmatist method—with its (to me) maddening Teflon-like resistance to critique and its bland and ubiquitous “but what else could there possibly be?” correctness—itself has a concrete historical grounding in the Darwinian understanding of nature and the related methodological crises of nineteenth-century Anglo-American science. Far from being a response to the modernist vanishing of foundations, Cowles shows, the pragmatist method remained anchored in an understanding of nature as foundation, where the foundation was, of course, method. In The Promise of Pragmatism (1994), the intellectual historian John Patrick Diggins articulated the modernist/pragmatist focus on method as follows: “Without access to the objectively real, the philosopher settles for the processes of knowing instead of the thing known.” But Cowles seems to suggest that, far from “settl[ing] for the processes of knowing instead of the thing known,” a tragic maneuver for a newly disenchanted world, the pragmatist philosopher might instead have been instantiating in his thinking something like “the objectively real,” namely, nature’s method. In other words, Cowles’ leaves us with the conundrum of puzzling through the joining of the anti-foundational modernist turn to method, on the one hand, with pragmatism’s embrace of nature’s method as foundation, on the other, forcing together yet again that which we take to be opposites, anti-foundationalism and foundationalism.
Cowles does not pursue, except perhaps obliquely, the conventional story of the modernist turn to method in law and elsewhere with which I began this review. But his story about the connections between the Darwinist “method of nature” and the pragmatist/modernist method must compel some rethinking of the conventional story, including the current narrativization of the development of twentieth-century American legal thought. Precisely what kind of rethinking is another matter. Towards the end of the book, Cowles recognizes that the larger turn to method in the twentieth-century would repeatedly exceed or overshoot its imagined referent in the Darwinian “method of nature.” After all, brute nature did not ordinarily become “aware” of its history with a view to changing it; its methods of proceeding were always realized in and by its results. By contrast, the early-twentieth century modernist/pragmatist, aware that history had left his world devoid of foundations, turned to method without any assurance that the method would be confirmed by its results. The goal was frequently to transform the existing world in one way or another, with results that ranged from the benign to the disastrous. At the same time, the link between the Darwinian “method of nature” and the diverse methods that were adopted in different disciplines and endeavors (for example, the turn to procedure in law) is far from obvious. None of this is Cowles’ problem. He has written a wonderfully smart book that complicates our understanding of modernism by giving us a unique account of its past.
As the parent of a very curious four-year-old, I am accustomed to being asked the question “why?” about every statement I make. Specifically, I have recently been asked to explain why people die, and what happens to them once they do. In her article When Dead Bodies Talk: Colonial and Ritual Autopsies in French-Ruled Africa (1918–1945) Ruth Ginio explores the cultural underpinnings of how we approach such questions and the kinds of answers we find satisfying. Ginio begins the article with a revealing exchange in Nii Ayikwei Parkes’s 2009 novel, Tail of the Blue Bird. Parkes, a Ghanaian author, tells the story of Kayo, a young Westernized Ghanaian forensic pathologist, who is sent to a secluded village to examine an unidentified body to determine whether a murder had taken place. A local hunter by the name of Opanyin interrogates the visitor about his peculiar profession:
‘You explain deaths?’
‘Yes.’ Kayo’s tone was defiant.
‘Then, tell me, why do people die?’
‘Because they are old, or sick, or someone attacked them. I don’t know.’
‘Then you can’t explain deaths.’
‘Opanyin, that is my job. It is part of what I do.’
‘I am a hunter. I kill beasts so I can eat, but I know they don’t die because I shoot them or trap them; that is how they die but is not why they die.’
According to Ginio, this story epitomizes the difference between French and African death inquests in the early twentieth century. In both societies, examination of the dead body lent clarity and closure. But in each society the autopsy sought to answer a different question: whereas French medicine in both the metropole and the colonies remained occupied only with the who and how, West African autopsies were preoccupied with the metaphysical why. Each society employed different procedures to answer such questions, yet upon closer scrutiny each seemed equally ill-suited for the task at hand. Ginio identifies three objectives of French death investigation in West Africa: to establish whether the victim was raped before being slayed; to prove intent to kill in cases of domestic violence; and the autopsy as a scientific means to prove the truth, since local accounts were mostly distrusted. Yet French autopsies were ill-suited for the tasks for which they were designed. The bodies were often examined several days or even weeks after the death, which rendered an autopsy utterly useless beyond its performative aspects.
More importantly, the French autopsy failed to answer the why question, which from a local vantage point was far more crucial. The why could only be addressed through a ritualistic autopsy, conducted in the presence of elders and family representatives. Dissecting various parts of the dead body, these local autopsies were designed to answer the question of whether witchcraft—on the victim’s part or on that of their rivals—was involved in the death. Ginio’s account helps explain some tensions over what Ian Burney has termed the “jurisdiction” over the dead body. Local outrage over French autopsies did not merely stem from the desecration of the corpse; it was perceived as spoliation of evidence and obstruction of justice. With the destruction of the body by the seemingly scientific French autopsy, the corpse was no longer accessible to the family, and no closure concerning the reason for death could be achieved.
Ginio’s findings are especially illuminating in light of other accounts regarding the utility and necessity for forensic science in the colonies. Native mendacity was a common trope in both the British and French empires, which made scientific evidence far more appealing to colonizers than eye-witness accounts. But the necessity for forensic evidence in the colonies went beyond that: Sir Sydney Smith, Principal Medico-Legal Expert to the Egyptian Government, explained that forensic sciences were particularly crucial in Egypt, because Europeans found it so difficult to discern the motives of local criminals. “Motive, which plays so prominent a part in connection with Western crime, is often difficult to understand in the East, for murders of an extremely revolting nature may have what appears to be a most insignificant motive.” This inability to discern motives was a central driver of forensic science. To some extent, in the process, forensic scientists stopped exploring the why question both on its more superficial level (why this individual murdered this particular victim) but also on the more profound level (why did this person die?). As many of us, not only four-year-olds, are preoccupied with death and its underlying causes, Ginio’s article provides us with a useful prism for examining where and how we seek our reasons.
Anyone who has done archival research has grappled with someone else’s file organization—are the papers you seek filed chronologically? By correspondent? By topic? By some other method inscrutable to the outsider? Does the filing system reflect the thinking of your research subject, of a secretary or clerk, or of a later archivist seeking to impose order on chaos? Finally, will the files actually contain the documents you’re hoping to find? Two recent articles take seriously the prosaic technologies of file storage, on the one hand, and file destruction, on the other, explicating the history of the tabbed file folder, the filing cabinet, and the paper shredder. These technologies are crucial to the contemporaneous operation of the bureaucratic process, and, of course, silently shape how we write history from those files.
Craig Robertson’s article, Granular Certainty, The Vertical Filing Cabinet, and the Transformation of Files, examines the role that the tabbed file folder and the file cabinet played in organizing and enabling modern corporate capitalism. As Robertson notes, scholars thinking about bureaucracy and influenced by Max Weber have long considered the development of the circulating case file to be a key moment in bureaucratization. Here, Robertson focuses on how the specific mechanics of the file storage process—office workers collecting loose documents in a file folder, securely storing the folder in a vertical cabinet, and later quickly finding that folder among dozens or hundreds of other ones—contributed not just to business efficiency but also to a conception of “information” as many discrete units rather than as a body of knowledge.
Robertson uses the term “granular certainty” to describe the larger significance of this organization to efficiency goals: “granular signifies the belief that breaking things down into small parts to produce a high degree of detail or specificity would produce efficiency. Certainty indicates the conviction that this increased specificity would reduce individual discretion and increase the certainty that a task would be completed efficiently.” (P. 73.) The ability to find, use, and circulate specific documents allowed workers to specialize in distinct tasks—a hallmark of modern bureaucratic efficiency.
However, as Robertson describes, until the early twentieth century, office workers lacked the actual equipment to organize papers in this way. Sturdy tabbed file folders and vertical filing cabinets made this change possible. Earlier workplaces had relied on bound volumes, or on “piles of paper that were bound by string or leather and stored in bags, chests, cabinets, drawers, or on shelves and occasionally hung from hooks.” (P. 71.) While this made searching difficult, it worked fine as long as a document’s significance came from the documents around it.
This filing system worked less well, though, when the cumulative context became less important than the specific document itself. Uniformly sized file folders allowed loose papers of different sizes to be collected together but still remain separate. As Robertson argues, this “gave a material existence to information as a thing that could be detached and repositioned, reordered, and recombined.” (P. 72.) A label affixed to the folder’s tab meant that a file assigned a permanent home in a vertical filing cabinet could later be easily found. Office workers could remove a folder, circulate it to others in the office, and return it to the cabinet for yet others to find again. And this broader filing system organized all information, even as files moved freely among workers. As Robertson describes: “Circulating through the office, papers were expected to manifest the valuable attributes of information as a discrete unit but not to become disconnected from the oversight of the filing system.” (P. 81.)
The adoption of the vertical file and vertical file cabinet was thus an important moment in the history of information, Robertson argues, as “storage is not a neutral practice; the folder and filing cabinet, like other storage technologies, produce specific possibilities for action.” (P. 73). One broader result of ordering paper at the document level and storing it in readily accessible way was that people came to envision information itself as “a discrete thing…. Information, grasped as individual pieces of paper, became malleable, both in its physical shape and its contents.” (P. 76.) The power of this model endures today, shaping the logic of information storage in the digital realm even as the need for actual file folders and file cabinets fades away (for non-historians, at least).
Marianne Constable suggests that “If written records and files make the modern office or bureau go around, then so too does their destruction and disposal.” (P. 288.) Constable’s article, The Paper Shredder: Trails of Law, addresses the latter—the technology of shredding machines, and the laws that govern disposal via this particular method of destruction. Historians are accustomed to thinking about silences in the archives, and to looking for information that was not preserved. Here, however, Constable examines the history of the actual mechanics by which documents are intentionally destroyed, and the history of the laws surrounding this destruction.
Constable offers a brief history of the paper shredder, “a machine that proliferates waste and serves as the repository of carefully guarded secrets and confidential records, even as it is designed to eliminate the dregs of bureaucratic culture.” (P. 276.) The machine was patented in 1909 but, as Constable notes, its “legal existence precedes its actual existence.” (P. 277.) It was first manufactured in Germany in the 1930s, when a German man who wanted to destroy some anti-Nazi papers saw fit to construct “the paper shredder equivalent of a Spätzle or pasta maker in his garage.” (P. 278.) The paper shredder had its moments of fame when the Watergate scandal, the Iran hostage crisis, and the Iran-Contra controversy shone a spotlight on the intentional destruction of important documents (and, probably unintentionally, promoted the sale of shredders). It is also closely associated with law and lawyers in popular culture, as Constable demonstrates through a brief analysis of cartoons.
Constable describes one problem of bureaucratization—what to do with all the papers neatly stored in file folders? Should institutions buy file cabinets ad infinitum and keep everything forever? Clearly not, but destruction of federal records, at least, was extremely complicated until Congress in the twentieth century passed laws to manage the exponential growth of paper. Such laws dictated what had to be kept and what could be destroyed—and in some cases regarding sensitive records, how they were to be destroyed. As people discovered the hard way, some shredders are better than others, and so additional laws, regulations, and standards were developed to ensure that documents were so thoroughly shredded that they could not be reconstructed. Yet more state and federal laws were passed to dictate how both governmental and non-governmental entities had to protect private parties’ information as these entities stored and disposed of their records.
All of this shredding created another problem, as shredded paper takes up more space than paper in its original form. Here bureaucracy generated more bureaucracy as new organizations sprung up to manage this waste, and private organizations developed their own set of standards for destruction. The National Association of Information Destruction (NAID®), a division of the International Secure Information Governance and Management Association™, accredits document destruction companies, which then make their own certifications that the documents they’ve handled have been securely destroyed. As Constable argues, “Explicitly and implicitly, written laws and public and private policies at all administrative and organizational levels, support and reinforce development of the international economic system of professional information management and destruction services.” (P. 288.) Destruction, then, is the end of one kind of official activity and the beginning of another.
The role of the paper shredder in destroying knowledge is much more obvious than the role of the file folder and file cabinet in organizing it, but all of these practical technologies of storage and destruction influenced the development of history. They also affect what’s in the archive for historians to look at, and how historians look at individual documents to try to reconstruct a broader context. And they have their own technological and legal histories as well. After reading both articles, one wonders what the legacy of digital records storage will be, and what a legal history of cloud storage will look like.
Cite as: Joanna Lynn Grisinger, What Should We Do with All of This Paper?
, JOTWELL (November 23, 2020) (reviewing Craig Robertson, Granular Certainty, The Vertical Filing Cabinet, and the Transformation of Files
, 4 Administory
76 (2019); Marianne Constable, Marianne Constable, The Paper Shredder: Trails of Law
, 23 Law Text Culture
276 (2019)), https://www.jotwell.com/what-do-we-do-with-all-of-this-paper
Finally! After being relegated to the lower tiers of American cities, St. Louis emerges as the nexus of the American experience. This is the startling argument advanced by Walter Johnson in his new book The Broken Heart of America: St. Louis and the Violent History of the United States. Known for his work on slavery, Johnson broadens his gaze to include westward expansion, industrialization, de-industrialization, and even the present moment. St. Louis emerges at the fore mainly due to its location, a gateway to the West that was also a shipping point to the South, a “northern” state where slavery was allowed and where the Union Army launched its Indian campaigns. This latter fact is central, for it is the confluence of imperialism and racial subordination that fascinates Johnson, leading him to conclude that racism—whether embodied in the genocide of native peoples or the exploitation of black labor—lies at the heart of American history.
Legal historians will be interested in two facets of Johnson’s book. First, by moving the geographic focus from the East Coast to the Midwest, Johnson reduces the significance of Boston, New York, and Washington DC to American history. In so doing, of course, he also reduces the importance of the Supreme Court. Only two 19th Century opinions interest him, the Court’s ruling in Johnson v. M’Intosh that delegitimized Indian sovereignty claims and Dred Scott v. Sanford, that delegitimized black citizenship. Both rulings fit into Johnson’s larger analytic frame, which reads the history of capitalism through the lens of race, and specifically Cedric Robinson’s “racial capitalism,” which holds that racism is inextricable from free enterprise, and that without racial subordination capitalism would cease to exist.
For legal historians, this is mainly important because it de-centers the commercial jurisprudence of the Marshall Court during the antebellum period, substituting in its place the legal institution of slavery. Gone, for example, are the canonical cases of early American capitalism like Gibbons v. Ogden, Dartmouth College, and Charles River Bridge. Substituted in their place is Dred Scott, of course, along with stories of racial violence, like the 1836 lynching of Francis McIntosh, which for Johnson remains a “landmark” in America’s larger campaign of forging a “white man’s country” by “linking together the imperial practices of Indian removal and war to the jurisprudential annihilation of the 1857 Dred Scott decision.” (P. 74.)
“Jurisprudential annihilation” is the second reason legal historians should read Johnson’s book. It presents a very narrow view of the law as an instrument of racial domination, nothing more. Gone is the nuanced story of how law facilitated commerce by removing trade barriers. Gone is the story of how law encouraged competition by granting and then suspending monopoly rights in the interest of the common good, and gone is the evolution of the legal conception of the corporate form.
Instead, we get the story of plunder. Law, to the extent it is involved in this story, simply legitimizes the exploitation, genocide and theft that makes plunder work. St. Louis, ironically, helps Johnson make this case. Because it endorsed bondage, St. Louis allows Johnson to link his earlier work on slavery as capitalism to a new, more expansive national narrative. Specifically, St. Louis emerges a site where the racial capitalism of slavery bleeds uncomfortably into the industrial capitalism of the Northeast. A study of Boston would not have yielded such a connection, nor would New York or DC, but St. Louis does, and—as if to sharpen his point for a general audience—Johnson places little emphasis on the complex story of freedom suits that Kelly Kennington captures in her book In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America.
Instead of legal history, we get violence.
St. Louis helps Johnson link the violence of slavery to another form of violence central to the American experience, the treatment of Native Americans. Specifically, St. Louis became the single most important outpost of the Union Army during the settlement of the West. It is from St. Louis, Johnson explains, that the Union Army launched its most violent incursions against Indians, an ironic counterpoint to the city’s longstanding reputation as a “gateway” to the West. This gateway, now commemorated with a gleaming arch, is not a monument worth revering so much as a tombstone worth lamenting. And Johnson tells this aspect of his story well, weaving together anecdotes of violence that make for powerful reading, even as they occlude the complicated legal history of Federal/Indian relations that Stuart Banner captures in How The Indians Lost Their Land: Law and Power on the Frontier.
The end result is rather stark. “The imperium of St. Louis (and thus of the United States),” writes Johnson, “is centrally framed by the history of genocide, removal, and expropriation and control of land—all justified in the name of white supremacy.” (P. 6.) And white supremacy does not end in the 20th Century, even though it is dismantled by courts. Johnson dismisses this history, along with the received canon of civil rights cases beginning with Buchanan v. Warleyand moving on to Ex rel. Gaines v. Canada, Shelley v. Kraemer, and Brown v. Board of Education, all inconsequential in the larger story of race and violence that characterize the “violent history of the United States.” For example, Gaines and Brown are only alluded to in passing, eclipsed by the story of a riot at an integrated pool in St. Louis that unleashed a “psychic disgust externalized into the collective fury of race hatred,” further confirming Johnson’s point that “racism and capitalism” are, in the end, “inextricable.” (P. 263.)
While legal historians may balk at Johnson’s dismissive attitude towards law and legal reform, Johnson is actually quite serious, and Broken Heart of America may be a portent of something much larger, a move away from the idea that law is a transformative part of the American experience and toward a more doctrinaire Marxist position that law is regressive and reactionary. This coincides with an uncomfortable truth, namely that the civil rights litigation of the 20th Century failed, in the end, to achieve racial equality. It dismantled de jure segregation, to be sure, but it did little to address the black poverty rate (which remains twice that of whites), the black incarceration rate (which remains six times that of whites), and the racial wealth gap (which translates into the average white family possessing ten times the wealth of the average black family).
Of course, one obvious solution to this dilemma is social democracy, and specifically an expanded welfare state funded by higher taxes. Ironically, however, social democracies in Europe and Canada have all come to conclude that capitalism plays a vital role in the construction of such a system. Without it, there simply would not be enough wealth to tax in order to fund an expansive safety net, something that most social democracies have achieved. Dealing with those questions, however, would require a different book. The virtue (and vice) of Johnson’s account is that it provides us with a startling new take on American history, achieved by a bold re-positioning of the narrative center. That St. Louis might actually be more important than Boston, New York, or DC is worth contemplating. Perhaps our traditional coastal focus has led us to Whiggish conclusions about our past that do not hold up when we venture into the broken heartland of America.
Elizabeth Sepper & Deborah Dinner, Sex in Public
, 129 Yale L. J.
Advocates of equality breathed a sigh of relief when the Supreme Court issued its opinion in Bostock v. Clayton County, interpreting the word “sex” in Title VII to include employment discrimination based on gender identity and sexual orientation. Title VII is just one part of the sweeping and historic Civil Rights Act of 1964 (CRA), drafted primarily to help remedy the scourge of racial discrimination across various areas of public life. Representative Howard Smith inserted the word “sex” in Title VII towards the end of the drafting process, not as a means to sink the act (as the apocryphal story goes) but at the urging of feminist activists. Probably even more controversial than Title VII at the time of the CRA’s passage was Title II, prohibiting discrimination based on race, religion, or national origin in public accommodations. No lawmaker added “sex” to this provision, and it remains absent today in this provision of the statute.
Perhaps this absence helps to explain why legal historians have paid scant attention to the achievement of sex equality in public accommodation laws. Elizabeth Sepper and Deborah Dinner make a major corrective in their excellent article, Sex in Public. They present a broad-ranging and timely discussion of the wide variety of forms of sex-based discrimination in public life in the 1960s and 1970s. They recount the tireless efforts of feminist activists to dismantle these forms of sex segregation. Activists were motivated in part by a radical vision of sex integration that was never quite realized in the law. As the authors show, this recaptured vision has the potential to help to inform today’s fight for full inclusion of members of LGBTQ communities.
The first part of the article recounts the many forms of sex segregation that were commonplace in the 1950s and 1960s. One important service that the authors provide here is simply to remind us of the ubiquity of these forms of subordination in our not-so-distant past. Women’s participation in public life was severely hampered by exclusionary practices across a range of businesses and organizations. These everyday humiliations were not just a matter of a lack of market access but also about exclusion from public life writ large. As the authors show, restaurants across the country barred women during male-only lunch hours (or, in the case of “men’s grills,” barred women all the time); bars refused to serve women unless accompanied by a male companion; clubs of all stripes denied women memberships; banks discriminated against women in their lending policies; and leisure and athletic activities for women and girls were either subpar or nonexistent. Custom and law endeavored to protect these male-only spaces across wide spans of leisure and professional life.
The civil rights movement provided a blueprint for attacking these forms of gendered exclusion. Black Americans had fought relentlessly, at great personal cost, for full inclusion in spaces of public life, which came to be referenced broadly in the law as places of public accommodation. When Congress finally passed Title II, it mandated nondiscrimination not just for inn keepers and common carriers but also for “places of amusement.” State governments passed their own public accommodations laws, and these were sometimes even more expansive in their lists of covered businesses.
Part II of the article describes the broad contours of the mobilization for sex equality, showing how feminist activists built on this foundation of nondiscrimination based on race. The National Organization for Women – led in part by Black activists Pauli Murray and Anna Arnold Hedgeman – made achieving nondiscrimination in public spaces based on sex a key early initiative. Other feminist groups and individual women lawyers would take up the fight as well. Their efforts included a range of responses, from picketing, protesting and letter-writing campaigns to lawsuits and lobbying. As the authors show, activists were quite successful at the state and local levels.
By the end of the 1970s, a vast majority of state public accommodations laws included sex among the protected categories, and states and cities established human rights commissions to hear complaints of discrimination. (Federal law was a different story. Because feminists were focused on passage of the Equal Rights Amendment during this time, they did not expend a lot of effort on amending Title II, and sex discrimination still is not included.)
Parts III, IV and V each take up different dimensions of this fight for public inclusion and against discrimination. Each section uses case studies to explore the layered meanings of sex integration and to explain where the movement succeeded and where it failed. Practically speaking, the fight for access to public accommodations was about ensuring that women could participate in the public sphere without regard to their gender. This entailed opening up previously all-male spaces to women and guaranteeing that women could participate in the market without the need for a male companion or guardian.
These ideas themselves were perceived as somewhat radical at the time but became mainstream fairly quickly, as most businesses dropped their exclusionary policies under pressure of these changing norms and new state and local laws. Among many victories, United Airlines stopped running an “executive flight” that was for men only, press clubs finally admitted women on equal footing as men, financial institutions began to offer credit to single women without a gender penalty, and women could order a drink at the bar without being told they had to wait for their male escort.
One of the most important contributions of the article is to show how this vision of sex integration went beyond just opening spaces to rethinking sex difference altogether. In their fight for full inclusion, feminist activists were pursuing “transformative integration” (P. 128) by challenging deep-seated markers of difference. The authors focus on two particularly revealing areas of mobilization: sports and restrooms. Activists pushed sports leagues to mix girls and boys in sex-integrated play, rather than dividing them into “separate but equal” sex-specific teams. Likewise, activists pushed for unisex restrooms. As the authors note, “Feminists saw sex-segregated bathrooms – rooted in norms about sexual privacy and feminine vulnerability – as connected to the subordination of women in economic, political, and civic spheres.” (Pp. 136-37.) They were driven by a vision of gender freed from unwanted sexualization.
Sepper and Dinner argue convincingly that those pushing for public accommodations laws, as well as those opposing them, knew that what was at stake was not just greater freedom for women but also societal notions of gender identity and heteronormativity. Sex discrimination was understood at the time not only to include the exclusion of women from male spaces but also the problems of compulsory heterosexuality, gendered dress and hegemonic masculinity. Activists challenged the entire premise of ascribed gender difference and its deleterious effects on public life.
Ultimately, this challenge to sex norms had only partial purchase. As with many promises of the foment of the early 1970s, a more radical vision was gradually eclipsed by a more conservative one. The shift was due in large part to a right-wing backlash, led by conservative activists like Phyllis Schlafly. But the authors note that the change in emphasis also resulted from strategic choices by some women activists to seek equal access rather than full equality. Fearful of losing ground, some accepted the path of less resistance, and this was reflected in the public accommodations laws over time. Title IX, for example, revolutionized sports for women and girls, but the regulations ultimately adopted a parity model as an acceptable substitute for full gender integration in sports. As “separate-but-equal” emerged in these areas of public life, the more expansive visions of sex integration faded.
Sex in Public teaches us that many possibilities were on the table in the 1970s. This is a point that hopefully will not be lost on activists today, who continue the fight for radical inclusion of all people in public life.
Despite ideological use of terms like “free market,” people are not free to leave capitalism: capitalism is socially compulsory. Ideologists of capitalism sometimes mask this reality by trying to render capitalism the entirety of our conceptual horizon, so that it becomes impossible to think outside of capitalism. When that happens, capitalism comes to be taken for granted rather than treated as a historically contingent and socially-imposed set of constraints. One of the things that history can do is to examine when capitalism arose and how it became compulsory. Rose Parfitt’s new book is precisely this kind of critical history.
This book centers on Italy’s invasion of Ethiopia in 1935 and the ways it has been understood in international law since the end of World War Two. The invasion has been typically treated as a failure of law, as Parfitt demonstrates in a survey of scholarship by historians and international law scholars. The League of Nations let the invasion happen, the typical account goes, and the League’s failure to act must inform the creation and practice of better international legal institutions. Parfitt argues, however, that the legal facilitation of Italy’s annexation of Ethiopia did not arise from particular qualities of the League but from elements of international law more broadly. The force of the argument is that present international law is not so fundamentally different from the League of Nations after all. As Parfitt underlines, the world has witnessed many invasions since the Ethiopian crisis, under what is ostensibly a very different organization of international law and set of institutions. The typical narrative of Italy’s invasion, Parfitt argues, has defended rather than prevented military actions, especially by the US and European countries against formerly colonized countries. Parfitt thus argues that there is far more continuity between the League of Nations era and more recent international law than the typical story admits. She further argues that claims to strong differences between the League and present institutions end up inadvertently offering rhetorical support to war.
Parfitt repeatedly returns to the Italian invasion. With each return she takes a different interpretive perspective, using the metaphor of an artist’s shadow box, which is designed to facilitate looking at objects from angles. In doing so, the book travels far and moves artfully between different degrees of analytical abstraction. Parfitt critiques other scholars conceptually, provides an intellectual and doctrinal history of international law, narrates the Italian invasion, and offers extensive theorizing of the relationship between law and capitalism. It’s a though-provoking, exciting book. In this review, I focus on the book’s theoretical aspects, which are ambitious and offer a great deal to legal scholars. Parfitt foregrounds these theoretical aspects herself as part of the book’s scholarly contribution. In the next few paragraphs I attempt to summarize the contents of her argument that international law helped make capitalism compulsory.
International law in effect has required people around the world to adopt the state as a specific form of social organization, Parfitt argues, and in doing so helped impose capitalism. We find in the history of the world a wide range of ways for human collectivities – societies and communities and, perhaps, polities – to organize themselves. The state is just one of those forms of organization. We live today in a world where states are more or less omnipresent and they have to a massive degree crowded out or at least incorporated or subordinated other forms of collectivity. That’s a relatively historically recent condition and one tied closely to capitalism.
International law is the law of states’ behavior in relation to one another. It regulates what states can and can not, or should and should not do to one another. This implies, Partfitt underscores, a relationship between states and non-state entities, including both non-state collectivities and individual persons. International law sets some limits on what states can do to people, but the many victims ground under the boots of states past and present suggest that those limits are not especially effective. States seem to victimize non-state entities with relative impunity. This means among other things that the stakes of achieving statehood are relatively high, as being recognized as a state provides some limited ability to hold other states at bay. Achieving statehood, though, requires the permission of existing states. That is, Parfitt argues, statehood is always conditionally granted by other states.
Parfitt’s argument implies a question of social ontology: if a human collectivity declares itself a state and no other states agree, is that collectivity really a state? Whatever the theoretical answers may be, Parfitt shows that in practice the incontrovertible fact is that such a collectivity will remain in the world only so long as existing states decide to allow it to do so. The evidence of the historical record suggests that such a collectivity should be worried about its future, as it will likely be brutally steamrolled soon by one or another state and made into a part of that’s state’s territory.
That said, Parfitt stresses that the process of deciding if a human collectivity is or is not a state is not random, nor is it just power politics. There is something of a logic to the process. Now, that logic is in a sense twisted, tilted in favor of some actors (i.e. existing states and especially European ones tied to the history of colonialism), as Parfitt powerfully demonstrates through the examination of the Italian annexation of Ethiopia.
A key criterion of determining whether some collectivity counts as a state is if that collectivity has a government. Parfitt traces the emergence of that category within the history of international law. She argues that having a good government is defined largely as a state that protects property, and specifically capitalist forms of property. This applies domestically: does a collectivity protect the property of the people that it claims are its people, in a way that is legible to other states? This also applies internationally: does a collectivity protect the property of other states’ citizens, and does it do so in a way that other states view as valid? If not, it is less likely to be accepted as a state and more likely to be annexed by a state. To put it simply, this part of Parfitt’s argument entails that being a state requires the permission of already existing states, and not being a state leaves people vulnerable to predation by states. This account helps explain why in relatively recent history more and more of the world has come to be organized under states rather than other kinds of institutions: existing states have annexed more territory, and people seeking to avoid annexation have attempted to organize themselves as states. Often people have found their claims to statehood denied by pre-existing states, or in some cases statehood has been granted and then later revoked.
Parfitt in effect argues that international law has several traps built into it. One of these traps is that statehood is compulsory. Only a state, not any other kind of collectivity, can count as sovereign. Another depends on race. Historically, Parfitt argues, European states have questioned the sovereignty of other states through ideologies of racial superiority and inferiority. A third trap is the requirement to protect specific forms of property associated with capitalism. Making the state compulsory helped make capitalism compulsory because states have become unrecognizable as states under international law unless they guarantee capitalism’s existence within their territories. Taken together, the book suggests, this explains a great deal of the ugly history of international law: European states have set hurdles in the way of other people’s sovereignty in ways that facilitates European annexation. Non-European people have often been treated as presumptively incapable of protecting property, and so as not able to have states. Parfitt treats Ethiopia’s treatment by Italy and the League of Nations as a case study of these patterns. She argues as well that if understood in this light, the Italian invasion was not exceptional but exemplary of problems in international law. I found this very convincing.
Parfitt’s argument is complex and multi-faceted, and in making it she capably summarizes a wide array of Marxist theorists of law. Her literature review of Marxist legal theory alone makes the book worth reading for legal scholars in a wide range of fields in addition to international law. I appreciated Parfitt noting the original contingency of the state and the possibility of alternative human collectivities. I enjoyed that point and also struggled with it: I came away Parfitt’s book realizing that my imagination has a limited capacity to envision non-state forms of social being. It’s a worthy challenge and one I’m glad Parfitt’s book pressed me to think about.
The Process of International Legal Reproduction offers a great deal that scholars could build on in further research, above all the book’s theoretical framework. Since this book is so suggestive, and since I hope the book signals a renaissance of Marxist legal scholarship, I want to spend some time sketching out ways that scholars might engage further with Parfitt’s book.
Within the Ethiopian crisis, Parfitt depicts the operation of two processes. One is a very macro-level process of capitalism reinforcing itself, and the other is a more specific process of international law playing a specific role in capitalism. Other works on the history of international law could be written that borrow Parfitt’s framework to investigate how the process of international legal reproduction played out in other incidents in history, and how those events related to capitalism’s self-reproduction. Scholars could investigate as well how international and domestic law inter-relate. For example, labor and employment law scholar Ruben Garcia has written optimistically, in his book Marginal Workers, about the potential for international law to help improve the legal situation of workers in the United States. Parfitt’s book implies a critical perspective on these efforts as being another facet of the international process of legal reproduction – a more humane one than some others, but still fundamentally bound up with lasting injustice.
Future scholars could also examine domestic law directly and its role in the reproduction of capitalism and the violence thereof. I attempted to do so in my own recent book, Injury Impoverished. (Had I read The Process of International Legal Reproduction two years prior it would have shaped my book significantly.) Christopher Tomlins has written multiple books analyzing the relationships between law, capitalism, class, ideology, and violence. Afield from history, Marxist philosopher Tony Smith has written in his Beyond Liberal Egalitarianism that the state serves as a key part of the reproduction of capitalism by treating power relationships in society as apolitical and centering political contestation on a very narrow swathe of social life. The Process of International Legal Reproduction could be used to enrich or interrogate those works, by drawing out further how domestic legal processes are articulated to international law and the world market, in addition to her powerful elucidation of the role of law within capitalism’s reproduction.
Parfitt’s book raises questions about the origins of capitalism as well, an area in which there was once much scholarship and which has been relatively neglected in recent years. Parfitt depicts capitalism as a set of self-reinforcing processes, and international law is a key part of that self-reinforcement as Parfitt argues, I think correctly. This prompts the question of when these social processes began, and what came first? Did international law help create capitalism, and then become subordinated to it – law as a kind of Dr. Frankenstein creating then losing control of the monster of capitalism? Or did capitalism arise relatively independently of international law and then take over the international legal system? Both sound plausible and compatible with Parfitt’s arguments, and I am sure her book would aid researchers arguing either point. The answers would have important implications for the degree to which scholars should understand the law as relatively autonomous within capitalism or as relatively determined to act in specific ways by capitalism. All in all, this is a powerful and thought-provoking book, highly recommended to any legal scholars concerned with international law, human rights, colonialism, social justice, and capitalism.
The intertwining of American foreign policy and American law has been a renewed topic of historical interest in recent years, with specific focus placed on the United States’ emergence as a global power at the turn of the 20th century. Rande Kostal’s Laying Down the Law dives deeply into perhaps the two most enduring symbolic episodes that came to shape popular and elite understanding of the place of American law in what many now call America’s informal empire: the post-World War II American occupations of Japan and Germany. Almost every subsequent American military action has to some degree invoked these interventions as precedents to justify efforts to export American legal models to foreign nations. For those working in this vein of international legal history, Kostal’s work has thus been long anticipated.
Kostal examines one aspect of the occupations of Japan and Germany comparatively within each of his six substantive chapters. His first two chapters deal with the details of the planning and occupation of each country, respectively, and his last four chapters the substance of reforms in constitutional law, court organization, criminal justice, and civil liberties. Undergirding all of these efforts was a general presumption that American liberal legality and the rule of law were central to American democracy and, thus, to democratization abroad. Conversely, there was a presumption that fascism and international belligerence sprung from the rejection of such values.
Some of what Laying Down the Law reveals would not surprise critical scholars who work in the field loosely termed “law and development” or historians who have examined these occupations without a particular focus on law. Kostal’s research highlights a distinct lack of coherent planning and local expertise that marked most every aspect of the legal reform efforts. Few with direct knowledge of Japanese law or society were employed by the US governmental agencies who oversaw the effort. Even expatriate German émigrés who had joined the American legal academy during the war often had their input subrogated to larger diplomatic imperatives. Both legal reform projects operated through compromise and dialogic engagement with local actors—cross-cut by the personal career ambitions of both American lawyers navigating a new wealth of foreign policy roles and their domestic interlocutors seeking to preserve positions of influence.
Kostal’s careful research over more than a decade has yielded numerous novel discoveries and perspectives in Laying Down the Law. A notable highlight is how American perceptions of racial and religious difference/distance influenced both efforts in different ways. In Japan presumptions of substantial cultural difference amplified the generally dismissive view of anything particularly Japanese in the reform process. Such presumption even moved leaders of the occupation to assert that those with actual knowledge of Japan were suspect precisely because they might see something of value in the previous Japanese legal system. The irony that the Japanese system, even down to its system of legal education, was modeled on German law seemed to escape American reformers. Law in Germany was seen by American actors as central to the rise of Nazi fascism, whereas in Japan more inchoate resort was made to broader notions of Japanese culture as explanatory of its militarism. Moreover, while not Kostal’s particular focus, the fact that Germany was predominantly a Christian nation led to little of the co-mingling of legal reform and ambitions for religious conversion that marked the American discourse on Japan. All of which worked to display quite flexible American notions of the inter-relationship between law, democracy and modernity.
For international lawyers today, what might be most striking is how these legal reform efforts required a fundamental reshaping of the international laws of occupation. The idea that occupying powers can engage in reforming the political and legal institutions of a conquered country is almost completely normalized today. But Kostal shows how at the time this idea was broadly rejected by international legal scholars. Pioneering American international law scholar and diplomat Philip Jessup was approached for his opinion on the subject, but when he deemed the idea impermissible under international law more congenial counsel was sought. Many might point out that such ideas were recurrent in colonial occupations, but what marked this era, and especially marked American self-perception after the Spanish-American War, was the idea that all such occupations would be inherently temporary.
Laying Down the Law also reveals a pivotal early moment in the administrative law of American foreign policy. There was no pre-existing agency with a mandate for legal reform projects in occupied nations. Accordingly, shifting inter-agency conflicts drove the management of both reform efforts—foreshadowing the long-standing unease among military actors ultimately vested with such responsibility. Even here, the particularly porous nature of American administration stood out as those tasked with carrying out reform projects were primarily Harvard-trained corporate lawyers who had moved into government service after Pearl Harbor. These lawyers epitomized the American legal profession’s growing confidence that it possessed a type of near-universal problem-solving expertise that could be brought to bear on any regulatory enterprise, foreign or domestic. Historians of the American legal profession would be little surprised by how the claim that a “good [American] lawyer can do anything” (P. 366 n.38) was cited to naturalize the participation of those with no country-specific expertise, or even expertise in the substantive areas of law addressed (most notably in criminal law).
In the end, the reforms in each country had much less transformative impact than would be vaunted stateside. Resistance by local interests and the extant legal profession in each country restricted American-led reforms to those that were publicly evocative and logistically convenient. In Germany this meant “de-Nazification” was limited to purging any laws that made explicit reference to the ideology of the Nazi regime, especially in terms of categorical discrimination, rather than systemic institutional reform—or even the removal of judges who had served under the previous regime. In Japan, this dynamic led to perhaps the quickest constitution writing project in history and a quite muted pattern of reform which entrenched much of the pre-existing legal elite. It is hard to do justice here to the complex maneuvering at play in each chapter, but Kostal maps them out with great legibility.
This is not to say that such changes were not consequential, especially for Japan’s de-militarization. Yet, as legal historians in this arena recurrently note, the content of such foreign legal engagement over time belies the that idea that American law has certain fixed values and institutional expression. The content of even the more ambitious reform imaginations contemplated at the outset of the occupations reflected a very different version of what “American law” was taken to be in later decades—especially in regard to the prominent regulatory role of the state. Furthermore, and most acutely for the mythology they came to inspire, these reforms lost any particular quality of “Americanization” even when formal transplants seemed to have been made. If one were to look at the German and Japanese legal systems just a few decades after the occupations, it would be hard to describe their particular American elements. Notably, by the 1980’s Japanese law was cited by many as itself the antithesis of American law, and many Germany scholars today might still proactively assert a parallel claim on their own.
But perhaps what is most intriguing about Kostal’s narratives is not how wide the gap was between the rhetoric and reality of the reform efforts, but how the nature of the compromises made reflected tensions at the heart of modern American liberalism. American reformers in both countries allied with less-liberally inclined domestic actors in order to facilitate the use of criminal law to repress the speech and organization of those deemed too politically radical (especially labor activists). Here the occupations foreshadowed the general Cold War dynamic where American legal internationalism would become highly charged by notions of allegiance that too-often trumped commitments to the principles of liberal politics. As Kostal explicitly notes “at war’s end, America’s own liberal rule-of-law project was profoundly flawed….in its posture as liberal revolutionary, the American colossus had feet of clay.” (Pp. 300, 327.)
Today, much of the mythology generated by the occupations is under renewed scrutiny. The sacralization of the American constitution emergent at the beginning of the 20th century drew deeply on the idea that it was a model for the world, and the Japanese occupation in particular has always served as a symbolic lynchpin in this mythologization. Even the very enterprise of contemporary comparative constitutional law in the United States now grapples with its future when the presupposition of American constitutionalism as a dominant global model is no longer empirically tenable.
Perhaps Kostal would not be so direct in drawing out these conclusions from his work, even though he unabashedly notes the weakness and hypocrisies of the occupation efforts throughout Laying Down the Law. But this is the value of historical work that interrogates episodes that become so symbolically charged and consequential. Disruption invites re-imagination, even if Kostal places such outside of his scholarly ambit. If anything, the post-occupation role that the many participants he studied played in constructing this mythology stateside remains open as a fascinating subject left to explore.
As with any historical project of such depth and scope, there are of course subjects I could have read more on, especially as legal education reform became so central to subsequent American rule of law reform efforts. For non-specialists, Kostal has rendered this topic accessible and with all the personal details and intrigue commensurate with his level of archival engagement. For anyone thinking deeply about the past and future rule of American law and American lawyers in the international world, Laying Down the Law will be a must read.
Until the early 1980s, my high school had a smoking lounge. It was a medium-sized room off the lobby with some beat-up furniture where students could hang out, smoking their Marlboros and their clove cigarettes. There was even a king and queen of the smoking lounge, pictured in the yearbook alongside the prom’s royal court.
Today such an accommodation of smoking is unimaginable. Indeed, in most states, it would be illegal. In the past forty years, the United States transformed from a society where the cigarette represented a combination of sophistication and rebellion to one in which smokers are benighted addicts, suffering for their own moral failures. Sarah Milov’s breathtaking The Cigarette: A Political History explains how this happened. In telling this story, her narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state.
Milov recounts this fascinating history with lucid prose and narrative verve. The first half of the book describes the rise of the cigarette during the first half of the twentieth century. Central to this tale is the fraught relationship between an oligopoly of cigarette manufacturers and the thousands of small farmers in Virginia and the Carolinas who grew and cured the bright leaf tobacco that filled American cigarettes. With low barriers to entry, overproduction was a constant problem for these farmers. This supply problem, and an auction system that could be charitably characterized as inequitable, led to debt and impoverishment for growers and massive profits for manufacturers. In the early 1920s, farmers created private cooperatives to limit output, but economic necessity and racial divisions among growers, as well as a concerted counter-offensive by manufacturers and their allies, shattered them within a few years.
Federal policy generated during the Great Depression solved the problem of overproduction and the strife it generated. Economic catastrophe gave the federal government the impetus to implement supply restrictions and expand markets for cigarettes, particularly abroad. While the Agricultural Adjustment Administration and numerous other federal agencies were instrumental to this project, the policies were implemented primarily by private, voluntary associations that the government empowered to form cartels of growers. The policies were a success. The farmers got unprecedented prosperity. The manufacturers got a stable supply of tobacco, entry into foreign markets, and the public relations benefit of linking their industry to the welfare of small, family farms. And consumers? They got cheap cigarettes and nicotine addiction.
The second half of The Cigarette: A Political History chronicles the slow collapse of the political-economic system that promoted both this prosperity and this addiction. The 1950s were the high point of U.S. cigarette consumption, with near half of all Americans lighting up. Yet, that decade also saw the beginnings of concerted efforts to disrupt the system. By the middle of the decade, doctors, scientists, and public health officials all pointed with increasing confidence to the links between smoking and disease. The public salience of this issue increased, particularly after the release of the first in a series of reports on the impact of smoking on health by the Surgeon General in 1964. At the same time, the government-industry alliances that sat at the center of national agricultural policy were coming under attack from both the right and the left. To conservatives, agricultural subsidy programs were contrary to the anti-government, free-market ideology that was emerging within the Republican Party. To critics on the left, the relationship among the federal and state agricultural bureaucracies, the voluntary farm associations, and the tobacco industry was the quintessence of “agency capture” – the corrupting influence of private interests on the state.
Milov describes the potent strategies that “big tobacco” used to resist these forces. Well known are the industry’s efforts to undermine the evidence of the nasty health consequences of smoking by sowing scientific confusion where little existed. Less familiar is the success tobacco interests had in turning back attacks on crop subsidies through aggressive public relations campaigns that romanticized small tobacco farmers. The industry worked hard to obscure the place of price supports and government purchases of crop surpluses behind images of independent, dignified, idyllic (and always white) farm communities fighting to maintain their way of life in the face of attacks from interests that did not understand what it was like to work the land.
By the 1970s, however, the tide was turning against cigarette manufacturers as an odd combination of forces undermined these defenses. There were, of course, public health advocates and their political allies. They were joined by public interest lawyers – particularly John Banzhaf — who worked the levers of the administrative state to limit tobacco advertising, ban smoking in federal workplaces, and segregate smokers on airplanes, trains, and interstate busses. At the same time, right-wing, libertarian intellectuals and policymakers deployed anti-statist ideas to attack government agricultural subsidies. Finally, and most important to Milov, were grassroots activists, such as Clara Gouin and Donna Shimp, who fused environmentalism and feminism with consumer protection and public health activism to develop a potent, national movement against smoking.
According to Milov, this movement accomplished two things that dramatically weakened the hold that big tobacco had on American public policy. First, it “created the non-smoker.” Gouin’s activism generated a self-conscious constituency of rights-bearing consumers with the power to assert its right to a smoke-free environment. Second, these activists convinced businesses and the state that smoking was harmful not only to people’s health, but also to the economic health of the nation. A smoke-free workplace wasn’t simply a healthier workplace. It was a more profitable one. Banning smoking saved money. No more decreased productivity due to cigarette breaks. No more cleaning nicotine stained walls and replacing carpets marred by cigarette burns. No more of the sick days and inflated insurances costs that came with hiring smokers.
This thumbnail description doesn’t do justice to Milov’s rich narrative, which she tells with a propulsive style and a wry voice. Even more impressive are the number of analytical threads that she successfully weaves together. Frankly, one could teach a course on twentieth-century legal history using this book as a textbook. It speaks to a broad range of subjects central to the interests of legal historians: the role of law in constituting capitalism; the interaction of law, gender, and race in the construction of social movements; the simultaneously emancipatory and constraining potential of framing policy preferences as rights; the profound role of the administrative state in structuring politics and policy; the rise of public interest litigation; the importance of understanding the legal history of agriculture, a field sorely neglected by legal historians. While different readers will find different analytic points particularly compelling, two stand out for me.
First, Milov’s narrative suggests the need to reevaluate the postwar state’s legal and political contours. For readers familiar with early New Deal policies such as the National Industrial Recovery Act and its industry-written “codes of fair competition,” American tobacco policy is familiar. It was “associationalism” — an interweaving of public and private power that obscured the extent to which private institutions acted as vehicles for public policy. In the traditional narrative of the New Deal, associationalism ended with the political and legal demise of the National Recovery Administration in 1935. Joining scholars such as Brian Balogh, Milov shows how, in fact, associationalism outlasted the NRA and became an integral component of postwar state. Far from being replaced by the light touch of Keynesian fiscal policy, Milov shows how producer-oriented associationalism melded with consumer-oriented Keynsianism to give an alliance of corporate and state interests an active role in structuring the post-war economy as it simultaneously created an illusion of statelessness.
Second, The Cigarette: A Political History furthers our understanding the demise of postwar liberalism at the end of the twentieth century. While Milov does not suggest that American tobacco policy was progressive, she notes that the tactics deployed against it had a distinctly illiberal bent. By combining libertarian hostility towards the administrative state with an efficiency-based, cost-benefit attack on smoking, big tobacco’s opponents helped create a political culture that undermined egalitarian public policy. This market-based political culture denied the state a role in combatting systemic inequities within markets and ignored the fact that policies based on cost-benefit analysis frequently ignored important, not-easily-quantifiable values.
Don’t get me wrong. The fact that fewer Americans smoke now than at any time since the introduction of the cigarette is a triumph of postwar public policy. But this victory did not come without a cost. Milov concludes The Cigarette: A Political History with the dismaying observation that while the “cultural cachet” of the cigarette has all but disappeared, smokers have not. Instead, concentrated within poor and minority communities, they have become increasingly stigmatized. Most Americans blame them for an addiction that is the legacy of a century of governmental action. Nor has big tobacco’s political and economic power waned. The deregulation of tobacco farming allowed cigarette manufacturers to drive down the price of tobacco to levels not seen since the 1920s. Their political power repeatedly thwarted attempts to regulate smoking at the federal level, leading to a sieve-like patchwork of state and local restrictions.
Thus, the victory against big tobacco was hardly a total one. More complete, dismayingly, was the transformation of the relationship between Americans and the state occasioned by the fight against tobacco. Milov tells us that “the non-smokers’ rights movement refashioned what Americans believed the government owed to citizens and what citizens owed to the government.” (p. 278) Few of us, Milov included, would want to go back to a system of governance in which public and private elites worked together to promote a deadly product. But some of the values that percolated through that system – that the state should promote a measure of economic egalitarianism, that “free” markets are often anything but free, and that social solidarity rather than atomized competition might be a legitimate basis for public policy – are ones that we sorely miss.
On June 30, 1900, hotel laundress Nettie Blom operated a machine called a mangle, which used steam power to iron linens. In a tragic moment, the machine pulled in her hand and crushed it. How do we understand the historical and moral meanings of Blom’s injury? Do they lie in the excruciating pain she suffered during the accident or in its aftermath? In Blom’s loss of capacity to earn her livelihood? Or in her inability to continue to do the things she once enjoyed doing with her hand, from household crafts to engaging in a caress? Nate Holdren’s deeply thoughtful and important book, Injury Impoverished, which tells the story of the rise of a workers’ compensation regime in the early twentieth century, begins with Blom’s story and these questions.
In exploring their answers, Holdren investigates how individual workers, union leaders, insurance executives, major employers, and state administrators thought about the employment relationship. Ideas rather than narrative drive the book’s structure. Holdren draws explicitly on multiple political and legal theories to analyze evolving social and legal conceptions of disability, risk, and employment. In particular, Holdren uses the political theorist Nancy Fraser’s argument that justice requires both egalitarian redistribution and recognition, or treatment with dignity and respect. Holdren reminds the reader of “the old strike slogan . . . people need both bread and roses.” (P.12.) He argues persuasively that the workers’ compensation laws made partial strides toward distributive equity, while sacrificing recognition for workers’ full humanity.
The first half of the book evaluates the shift from a common-law regime for redressing workplace injuries to a modern administrative system. Holdren describes the tort doctrines that resulted in the denial of compensation to workers under the common law: the fellow-servant rule, assumption of risk, and contributory negligence. Though these doctrines are familiar to legal historians, his analysis is more surprising. Holdren argues that despite its flaws, the tort regime had one advantage. It allowed for a morality play, in which the worker could describe her experience and account for the multiple meanings of injury in her life. Holdren likewise recasts the advocacy of reformers, including feminist attorney Crystal Eastman and journalist William Hard. Although they cared about the individual workers affected, these reformers turned to statistics to draw attention to the scale of workplace injury. Such abstraction commodified workers by objectifying their personal experience.
Holdren argues that workers’ compensation helped to usher in a new form of governance that Michel Foucault termed “biopolitics.” Government turned toward policy based on the classification of populations and the accumulation of statistical data regarding these populations. In the case of workers’ compensation, biopolitical techniques resulted in what Holdren describes as the “tyranny of the table.” (P. 5.) The tables that determined compensation levels calculate the financial value of workers’ body parts, apart from their whole selves. While this administrative regime resulted in greater rates of compensation, it also denied recognition for the particularity of individuals’ experiences. As an antidote to abstraction, Holdren offers an interlude that narrates a 1909 fire in a Cherry, Illinois coal mine, through the remarkable diary of Samuel Howard, a worker who experienced and died in the fire. At a particularly powerful moment in the book, Holdren invites his readers to say out loud the names of each worker who lost his life in the fire, as well as a wife known to have died of heartbreak.
The second half of Injury Impoverished takes a deep dive into the legal and financial mechanisms of the workers’ compensation laws, which forty-two states had enacted by 1925. One of the most interesting chapters of the book investigates the treatment of disabled persons who sustain additional workplace injuries. For example, Charles Weaver was already blind in one eye when a workplace injury blinded him in his second eye. Weaver’s case, and others similar to it, went to court. At trial, two views of the case dueled: Should Weaver receive compensation for his total incapacity, or was the employer’s obligation limited to that quantity of injury sustained in its specific workplace? When courts began to embrace the former theory of the case, the risk of additional liability led employers to avoid hiring what management at the Pullman Corporation termed “one-eyed men.” Employers’ implementation of workers’ compensation laws thereby helped to construct the category of disabled persons. The common law regime had resulted in the employment of partially incapacitated persons, though it often denied full compensation in the case of injury. By contrast, workers’ compensation regimes often resulted in the exclusion of disabled persons from the labor market altogether.
The selective screening of job applicants exemplified how insurance came to structure the employment relationship. Workers’ compensation laws mandated that employers either purchase state or private insurance to cover the liability associated with workers’ compensation claims, or self-insure according to specified rules. Employers responded by shaping their workforces to minimize risk. They discriminated against married men whose widows might claim death benefits. Companies hired medical directors to evaluate the health and capacity of potential employees, creating a new professional class of industrial physicians. Drawing on the scholarship of insurance scholar Tom Baker and political scientist Deborah Stone, Holdren shows how these practices delineated the boundaries of the populations that merited employment.
Injury Impoverished is essential reading for historians of labor and capitalism. It well compliments John Witt’s Accidental Republic, which examines the multiple legal responses to the late nineteenth century industrial accident crisis. In contrast to Witt’s emphasis on the contingency of the rise of workers’ compensation, Holdren focuses on the structural factors that limited worker agency once that regime came into place. Like Witt’s book, Holdren’s monographalso contributes to our understanding of the central role that insurance played in the emergence of both the American administrative state and modern ideas about justice. Like Dan Bouk’s How Our Days Became Numbered, Holdren’s book shows us that actuarial logic came to shape Americans’ everyday life, from work to people’s experience of their bodies, long before the contemporary Big Data Age.
Injury Impoverished has given me a new critical lens on workers’ compensation, which I will bring to the classroom the next time I teach employment law. This achievement of progressivism mitigated the social instability generated when disabled or deceased breadwinners could no longer support their families. Yet it also contributed to what Holdren argues was the “moral thinning of injury,” confining it to a financial calculus and reducing the layered, multiple, and complex meanings it held for injured individuals and their social relationships. Holdren brings a moral passion to his historical inquiry that is unselfconsciously evident on the surface of his text. It is informed but in no way delimited by his own experience of injury and workers’ compensation related in the introduction and conclusion to his book. By telling the stories of people like Nettie Blom, Samuel Howard, and Charles Weaver, Holdren has returned to these historical actors some of the dignity that the law earlier denied them.
American Fair Trade is an impressive contribution to the burgeoning literature on the history of the American political economy, a literature energized since the 2008 financial crisis by the emergence of a new subfield known as the “history of capitalism.”
Sawyer’s subtitle alludes to her book’s primary themes: the interrelationship in the half century between 1890 and 1940 of proprietary capitalism, corporatism, and the ‘new competition.’ By proprietary capitalism, Sawyer means the large sector of the political economy that was dominated not by the tiny number of giant mass-production managerial firms that owned and operated their own marketing networks, such as Standard Oil and American Tobacco, but instead by the multitude of specialty-production proprietary firms that relied on distribution networks that they did not control. By corporatism, Sawyer means a political-economic regime in which trade associations representing proprietary firms joined together in a partnership with government regulatory agencies to institutionalize a “neo-Brandeisian” regulatory regime. (P. 260.) By legalizing inter-firm agreements that blocked retailers from undercutting manufacturer-set prices—agreements that she calls “codes of fair competition” (P. 2)—the new regulatory regime protected not only the reputation of the proprietary firm’s brands, but also the margin that it obtained from the retailers that marketed its wares.
Big firms, according to the conventional wisdom, sought high prices, and small firms, low prices. In Sawyer’s account the opposite was closer to the truth. Fair trade, in her view, was part of a “lost alternative” for U. S. business that lives on today in the “institutional foundations” of the modern administrative state and the “latent populist impulses” of the U. S. public. (P. 23.) By “new competition”, Sawyer is referring to an intellectual construct coined by the lawyer and art collector Arthur Jerome Eddy in a book by this title that he published in 1912 to underscore how the rise of big business had altered the competitive rules of the game.
The care with which Sawyer recovers the agency of proprietary firms, and, indeed, more broadly, on the continuing vitality in the interwar period of proprietary capitalism (a phrase she borrows from the business historian Philip Scranton), distinguishes her approach from that of most historians who have written about the federal antitrust jurisprudence spawned by the 1890 Sherman Act. One of the peculiarities of this literature—and for the historian, there are many—is the self-assurance with which its chroniclers proclaim that, at some point in time, the main parameters of antitrust were “settled.”
For Martin Sklar, whose Reconstruction of American Capitalism is one of Sawyer’s foils, this settlement occurred with the promulgation of the rule of reason in 1911. For Sawyer, in contrast, antitrust enforcement after 1911 was not only or even primarily about the regulation of large industrial firms. Rather, spurred by the revulsion of independent proprietors against a different 1911 antitrust court ruling, it would rapidly evolve into a creative partnership between trade associations and administrative agencies to empower small and middle-sized businesses to “manage competitive markets” (P. 3) by setting retail prices for specialty and brand-name goods, mandating service guarantees, and prohibiting rebates for high-volume sellers. To put it differently: for Sklar, the pivotal 1911 antitrust settlements concerned Standard Oil and American Tobacco; for Sawyer, in contrast, the key 1911 Sherman Act ruling voided the protection plan that had enabled a proprietary medical firm known at the Dr. Miles Medical Company to protect its brand by setting a minimum price for the sale of its products.
The Dr. Miles ruling is important for Sawyer not because of what it foreclosed, but because of what it inspired. By declaring illegal (the term of art is a “per se” violation) any contractual agreements that a proprietary firm might have entered into with retail networks to protect its brand, the Supreme Court imperiled an entire sector of the economy. In response, proprietary firms mobilized trade associations to galvanize a “fair trade movement” (P. 18) to lobby lawmakers to get around this prohibition. “Fair Trade” was the moniker that lawyer Louis Brandeis hit upon to rebrand the ungainly phrase “retail price maintenance.” The work of these trade associations was coordinated by the American Fair Trade League, a proprietary-firm clearing house founded in direct response to the 1911 Dr. Miles ruling.
Four chapters of Sawyer’s book trace the evolution of the free trade movement from 1911 until the Second World War. These chapters document not only how the fair traders fared in the courts, but also how they built what Sawyer terms “rule making partnerships” to shape court rulings and regulatory law between the U.S. Chamber of Commerce, founded in 1912, and the Federal Trade Commission, founded in 1914. The collective power of the proprietary firms’ trade associations—and, in particular, their ability to shape court rulings and regulatory law, which, collectively, Sawyer terms the “administrative state”—is one of Sawyer’s most impressive contributions. No longer will it be possible for legal scholars to glide more or less effortlessly from court case to court case in reconstructing the history of competition policy.
By honing in on the interaction of proprietary business leaders with jurists, trade association staffers, journalists, government administrators, and academics, Sawyer has provided us with the best history ever written of U. S. competition policy in the half century between the enactment of the Sherman Antitrust Act and the Second World War. Along the way we meet the celebrity journalist Ida Tarbell, who, in her History of Standard Oil, editorialized in favor of higher ethical standards in business; the Fair Trade League’s chief counsel Gilbert H. Montague, fresh from his defense of Standard Oil in 1911; commerce secretary Herbert Hoover, who championed fair trade for macroeconomic reasons that were analytically distinct from Brandeis’s, but who often ended up favoring identical reforms; the institutional economists Wesley Mitchell, Edwin Seligman, Rexford Tugwell, and Walton Hamilton, an influential cohort of social scientists who spearheaded the world’s “first great law and economics movement” (P. 310); and the crusading California pharmacist Edna Gleason, who championed fair trade legislation in California that would serve as a model for the New Deal’s NRA.
Much of the interest of Sawyer’s book lies in the careful way in which she reconstructs the intellectual rationale for the establishment by institutional economists and government administrators of “generalizable trade rules.” (P. 153.) Federal administrative agencies, she astutely contends, would become in the 1930s the “primary arbiters” (p. 10) of fair competition, a task that they performed with a seriousness that matched, if it did not surpass, the intellectual acuity, in an earlier age, of the courts. The fair-trade movement in Sawyer’s view went into eclipse in the 1940s, supplanted by Keynesian macroeconomic management, the ascendency of a consumerist lobby that favored low prices over economic decentralization, and, eventually, Borkian consumer welfarism. The year 1940 is thus a bookend for a movement that originated in 1911.
Sawyer’s periodization raises a number of interpretative issues. Consider, for example, her characterization of the Grange—the largest late-nineteenth-century farm lobby. The Grange depicted by Charles Postel in Equality—his splendid new history of late 19th century voluntary associations—has little in common with Sawyer’s characterization of this group as a constellation of anti-collectivist and backward-looking “[d]isplaced or marginalized farmers, workers, and independent proprietors.” (P. 2.) On the contrary, the Grange’s leadership, as Postel depicts it, was progressive, resolutely collectivist, and firmly committed to a raft of bureaucratic expedients far more expansive than anything every proposed by the Fair Trade League. Not until the 1910s would Bellamyite big-is-beautiful antimonopolism give way to the Brandeisian “curse of bigness.” In her characterization of the Grange, Sawyer makes assumptions about nineteenth-century political economy that Postel’s careful research has persuasively challenged.
Related questions are raised by Sawyer’s characterization of the nineteenth-century political economy. The Sherman Act, for example, was only in a very narrow sense one of the “first federal statutes” (P. 7) to restore equity in market exchange, having been preceded not only by the Interstate Commerce Act of 1887, but also by the National Telegraph Act 1866, the National Banking Acts of 1863 and 1864, the Patent Office Act of 1836, and the Post Office Act of 1792.
Recent historical writing on the history of capitalism is overwhelmingly focused on credit, finance, and commodity flows. Interestingly, none of these topics figure prominently in American Fair Trade. Though Brandeis is a major figure in Sawyer’s story, the “curse of bigness” that preoccupied him—namely, the consolidation of the big banks in New York City—is mostly offstage. For Sawyer, the “associational corporatism” of Brandeis and Herbert Hoover “defined” American capitalism in 1920s. (Pp. 239, 310.) Readers of Matt Stoller’s Goliath, an important recently published history of twentieth-century antimonopoly whose time frame overlaps with Sawyer’s, will be more likely to come away with the impression that the decade’s political economy was dominated neither by the associational vision of Brandeis nor Hoover, but instead by the high-flying political-economic maneuvering of treasury secretary Andrew Mellon. Those who endorse “great men” theories of history might well side with Stoller; specialists in regulatory law can be expected to find Sawyer’s counternarrative compelling.
Sawyer’s rehabilitation of the fair trade movement points us toward a history of the interwar period that is congenial with the intuitions of specialists in the history of capitalism—namely, that popular movements can be spurred by legal change. It may well be that such a counternarrative, skeptical not only about intellectual currents but also about public sentiment, provides us with the surest foundation for exploring, as Sawyer has done so well, the interrelationship of trade associations, the law, and the administrative state in the half century between the Sherman Act and the Second World War.
Cite as: Richard R. John, Brandeis, Hoover, and the Problem of Fair Trade in Interwar America
(March 18, 2020) (reviewing Laura Phillips Sawyer, American Fair Trade: Proprietary Capitalism, Corporatism, and the 'New Competition,' 1890-1940