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
Stacie Taranto’s carefully researched, compelling study of antiabortion homemakers in New York captures the kind of populism, gender politics, and economic anxiety that continue to shape the contemporary movement to criminalize abortion. Focusing on activists who mounted a longshot, third-party campaign for the White House, Kitchen Table Politics provides a fascinating look into the changing GOP coalition. As important, the suburban homemakers that Taranto studies provide a powerful example of how certain populist, grassroots movements create change by at once relying on and denouncing the legal system.
Kitchen Table Politics begins before the vital campaigns that would transform the law of abortion and sex equality. Taranto takes the time to understand the personal experiences and socioeconomic forces that encouraged Catholic homemakers to become active. As Taranto shows, for many homemakers, antiabortion activism had both religious and economic roots. Kitchen Table Politics explores the upward mobility cherished by Catholic homemakers born during the Depression, many of whom had only recently settled into a comfortable life in the suburbs. These activists, Taranto shows, felt that the legal reforms proposed by feminists would destroy the lives that they had only just managed to build. And Vatican II, an ecumenical council that laid the groundwork for modern Catholicism, created organizations that homemakers would use to launch state and national legal campaigns. Vatican II consolidated the power of bishops, priests, and other male leaders of the Church. At the same time, as Taranto shows, Vatican II gave rise to parish-level organizations that would serve as the launching point of campaigns to maintain criminal laws on abortion and to defeat an Equal Rights Amendment (ERA) to the Constitution.
By chronicling the involvement of Catholic homemakers in the campaign to preserve (and later reinstate) criminal abortion laws in New York State, Taranto shows that grassroots conservatism evolved not just in the Sunbelt but in communities across the country. Shocked by the repeal of abortion restrictions in New York, homemakers successfully lobbied for the reinstatement of criminal laws before Governor Nelson Rockefeller (R-NY) vetoed the proposal.
But Taranto shows that Rockefeller’s veto further energized homemakers who committed to the defeat of the ERA. The homemakers who organized Operation Wakeup, one of the groups at the center of Taranto’s study, offer fresh perspective on the fight against the ERA. Historians have focused on Phyllis Schlafly’s STOP ERA, the best-known national organization in the struggle, but by centering on state-level activism, Kitchen Table Politics shows how the anti-ERA campaign mobilized class as well as gender politics to sway undecided voters, especially women. Homemakers emphasized their experiences as mothers and their lack of legal sophistication and elite connections in asking other voters to reject the ERA. In this way, Taranto shows, anti-feminist homemakers used the fight against a state ERA in New York to build an enduring conservative network. The political organizations that sprouted up to defeat the ERA would be repurposed to influence the Republican Party’s position on social issues in both New York and in the nation as a whole.
The women who helped to defeat New York’s state ERA knew that they stood little chance of winning the 1976 presidential election when one of their own, Ellen McCormack, made a bid for the Democratic presidential nomination. As Taranto details, these women initially saw national politics as a vehicle for television advertisements that could shape public opinion about abortion and lay the groundwork for an antiabortion constitutional amendment. Kitchen Table Politics illuminates the interplay between formal strategies for legal reform and failed campaigns like McCormack’s. While McCormack did not win a single state, her candidacy forced other presidential candidates to confront the abortion issue, paving the way for many social conservatives to switch parties in the years to come.
McCormack and her allies also helped to crystallize arguments about the rights of women to assume traditional, heterosexual roles in the nuclear family. While not carrying the day in 1976, these arguments captured the attention of national strategists and political operatives seeking to incorporate Catholics and evangelical Protestants into the Republican fold. Historians of the New Right often describe the effort to mobilize conservative religious voters as an effort to broaden the GOP coalition. Kitchen Table Politics shows that voters like those who supported McCormack also created a potent new “pro-family” message used to court new allies.
Kitchen Table Politics provides a captivating case study of the strategies still used by populist legal reform movements to advance their agendas. The Catholic homemakers who fought legal abortion and the ERA did so by proclaiming their distaste for both legal reform and for politics. This hostility to legal elites was a recruiting tool. By contrasting themselves to (at least theoretically) more sophisticated feminists, homemakers presented themselves as more authentic and in touch with the needs of ordinary people, all the while using the same kinds of legal and political tactics they supposedly abhorred.
While helping make sense of populist movements, past and present, Taranto paints an engaging, complex portrait of the homemakers who created a new brand of maternalist politics. With empathy and nuance, Kitchen Table Politics shows how women who made the “personal political” (5) viewed the security of a suburban lifestyle “an achievement to be protected at all costs” (10). The anti-feminist populism Taranto describes so able grew out of more than the reforms championed by the movement for women’s liberation. First generation suburbanites reacted as much to the economic downturn of the 1970s, to the parish level changes brought on by Vatican II, and to their own increasing isolation in homogenous, white communities that made them more committed to the defense of families like their own, even at the expense of others. Today, as a kind of pro-family populism again commands national attention, Kitchen Table Politics is a reminder that the women who flock to it are anything but simple.
Renisa Mawani’s Across Oceans of Law tells the history of the infamously failed passage of the ship the Komagata Maru and the 376 (mostly Punjabi and mostly adult male) people on it who found themselves denied entry to Canada in 1914. The leader of the expedition, Gurdit Singh, a British subject originally from Punjab, insisted on the right to travel and trade on the “free sea,” “a common place that was beyond national and imperial claims to sovereignty.” (P. 5.) Yet, as Mawani puts it, “Britain’s ascendancy as a maritime empire was achieved through a juridification of the sea, advanced in legislation, treaties, agreements and in legal restrictions imposed on ships, passengers, and cargos.” (P. 5.) These restrictions included the “continuous journey” provision used in this case to deny entry to “Asiatic” immigrants seeking entry into Canada. The idea of the Canadian and imperial government was to force all steamship routes (e.g. from Calcutta to Vancouver) to stop in another port of call (e.g. Hong Kong) and then use the journey’s interruption to deny the ship entry into Canada. The law, while facially race-neutral, was only ever invoked against non-white settlers (primarily from India) and is now widely regarded as a thin veneer on an explicitly racist measure aimed at keeping “white Canada white.”
Audrey Macklin explains that “Britain strenuously discouraged the one colony (Canada) from employing explicitly racist exclusionary measures that would exacerbate agitation against British rule in another part of Empire (India).” Britain “preferred to contain Indian British subjects within India . . . the proliferation of diasporic networks of Indian colonial subjects . . . multiplied potential nodes of resistance” to British rule in India.
The passengers on the Komagata Maru were left to languish in deplorable conditions in Vancouver Harbour for two months with limited supplies of food and water. After the British Columbia Courts rejected entry to most of the Komagata Maru passengers (only twenty-two were permitted entry) the ship was sent to Calcutta so its passengers could be sent by train to Punjab (rather than returning it to Hong Kong, where it had originated). The result? A massacre at Budge Budge in which the Bengal police killed nineteen passengers and many more were injured and arrested and held without trial or charges after refusing to board the train. (P. 102.) Gurdit Singh, a man who had spent most of his adult life traveling between Malaya and Singapore, became a fugitive for seven years after the battle, which he escaped. In the eyes of imperial authorities, Gurdit Singh was guilty of seditious libel and encouraging disloyalty while on board the Komagata Maru. Mawani explains that authorities lost interest in prosecuting him as Gandhi’s movement grew stronger and the Punjabi independence movement, the Ghadar (Mutiny), grew weaker. Gurdit Singh wrote an account of the racial injustices he experienced in his Voyage of the Komagatamaru, or India’s Slavery Abroad. Mawani describes Gurdit Singh as an anticolonial radical who was out to test the viability of a steamship company he sought to found and to challenge Canada’s immigration restrictions. He is a complicated figure whom Mawani neither glorifies nor vilifies.
This is a powerful tale of Indian anti-colonialism told through what Mawani calls “oceans as method,” an approach that draws on the sea as “both a technique of writing colonial legal history and as a conceptual frame that foregrounds movement and change.” (P. 234.) Part of the idea behind the method is to look at how different conceptions of the sea played out in competing understandings of how the sea (a moving force) and ships (what people are moved in) were transporting individuals from one part of the Empire to another (across oceans of law, as the title puts it). Could Gurdit Singh as a British subject use the ocean to travel to a new corner of the British Empire? Or, because he was Sikh and perceived as a radical by colonial governments, could a facially racially neutral “continuous journey” provision keep him (and most of those he was travelling with) out? Rather than starting with (the complicated character) Gurdit Singh, Mawani focuses on him in the last chapter, while the first two chapters start with competing conceptions of the ocean (free or regulated using racial exclusions and categories) and the ship (as a legal person).
Far from being vacant, open, empty, and free, Mawani describes oceans as “densely woven sites of encounter,” (P. 233) where hierarchies of race played out in intense “colonial laboratories” on ships that Lauren Benton has called “islands of law.” (P. 49.) The “free sea” of Grotius (explored in depth in the first chapter) was only open and free to the travel and trade of white European men. “Oceans as method” highlights the ship itself as a legal person (the topic of the second chapter), documenting its many voyages, names changes, and owners, along with its freight lists which like slave manifests operated to create what Mawani calls a “maritime metaphysics.” (P. 109.) Oliver Wendell Holmes Jr. called the ship “the most living of inanimate things.” (P. 84.) Mawani describes ships as “living, agentive, and willful beings.” (P. 79).
The third chapter discusses the distinction between a British subject and a British citizen and the role this distinction played in the legal decision denying the Komagata Maru passengers entry into Canada. The (perverse) justification of different treatment was grounded in the argument that Canada’s indigenous people were also denied equality with whites, thereby showing “the variegated inequalities of British subjecthood.” (P. 145). There was, in other words, “an unequal topography of British subjecthood.” (P. 147).
Mawani deals deftly and sensitively in the fourth chapter with the many incongruities born of claims Indians made to be superior to natives of Africa (especially relevant in South Africa) and to native peoples in Canada. In 1914, people wanted to know: “Were Indians, like other ‘coloured races,’ in need of further moral instruction and guidance from their British custodians, or had they now reached a higher stage of civilization and development after hundreds of years of foreign rule? More importantly, could Indians move out of the ‘waiting room of history,’ travel across the supposedly free sea, and make claims to the rights that followed from British subjecthood?” (P. 183). Mawani writes that “[m]any Indians viewed themselves as civilizationally advanced, further along in the forward march of history, and thus ready to be equals in the imperial family.” (P. 186). Yet their claims to be superior to other people subjugated on the basis of their race along “the white-brown axis” did not prevail.
Mawani has written a powerful book, which gives details and new perspectives on a history that is known to some but which is usually thought of as a Canadian story (of shame) rather than a global incident with connections to the wider push for Indian independence and what she calls “new forms and intensities of Indian radicalism.” (P. 5). Mawani’s account successfully internationalizes what happened, so much so that she does not even mention the Canadian government’s apology in 2008 for the Komagata Maru incident. (See Macklin, p. 62 for astute criticism of the apology.) Mawani connects the history in her epilogue to present-day migrants in the Mediterranean and the tens of thousands of deaths of people trying to make the passage from North Africa and the Middle East to Southern Europe. (P. 237.)
Mawani’s “oceans as method” has important and deep implications for ideas about how to write not just colonial legal history but also a wide range of other histories. Could its method also be applied to other nonhuman entities, animals, the environment or objects that become central to a historical inquiry, effectively transformed into a kind of subject by their centrality to the analysis undertaken? Its method calls us to question the invocation of law-free zones like the sea, which are riddled with law, and ships, the legal persons used to move migrants from one space to the next. It might be thought of as part of the “blue turn” in the social sciences and humanities, which focuses on the ocean and its more-than-human dimensions.
Jane Bennett called for a turn to recognizing the active participation of nonhuman forces in events in her 2009 book Vibrant Matter: A Political Ecology of Things. Mawani does not refer to Bennett’s work. Yet arguably Across Oceans of Law can be read as a meditation on Bennett’s theory, as applied to an important racially complicated colonial event of the early twentieth century.
Overall, this book is a compelling and persuasive read. It is also a model for taking on the perspective (or at least using the lens) of entities ordinarily treated as non-agentic (ships and oceans). We might all benefit from thinking about how such an approach might change what we write and how we approach our subject/objects in future legal histories. It is certainly a take away for me, as I work on a legal case about an American ship caught fishing in Canadian waters with a purse seine net (the Frederick Gerring Jr.). Could the net (controversial then and now) also be personified in this historical account? Could the fish be dealt with as subjects rather than property and objects of industry use? What does it mean for the ship to be a criminal in the case and how does its legal personality facilitate depriving its owner of his property? Mawani’s book makes me wonder about these and other possibilities.
Most American law students are familiar with Pierson v. Post, a case that has been a fixture in American property law casebooks for well over half a century. Decided by the New York Supreme Court in 1805, Pierson v. Post is used in property law courses to illustrate the question of how property rights arise in wild animals. Today, it is frequently taught alongside cases exploring how property rights arise in contemporary contexts such as ground water, human genetic materials, baseballs hit into stadiums crowded with fans, and the like. The facts of Pierson are simple and memorable: Post is in pursuit of a fox on a beach in Long Island when Pierson interrupts the hunt and kills the fox. Has Post acquired a property interest in the fox by virtue of the fact of being engaged in pursuit of it? The New York court deciding the case canvassed a range of European authorities going back to Justinian. The majority ruled that no property rights could arise in a wild animal unless it was captured. The rule it advanced has the virtue of clarity. But it risks being unfair to Post, particularly if he was at the point of killing the fox and/or if his labors had made it easier for Pierson to kill it. The dissent, in a witty opinion by Judge (and future U.S. Supreme Court Justice) Henry Livingston, would have allowed for property rights in the fox to arise through something short of actual capture, namely, imminent taking. The dissent’s solution might be fairer to Post, perhaps, but specifying what counts as an imminent taking is no easy task, entailing more work for lawyers and judges.
In my own property law course, Pierson v. Post has appeared either at the beginning or the end, but in neither instance have I devoted more than half an hour of a single class session to it. I teach Pierson v. Post because it neatly illustrates the difference between clear rules and blurry standards, but also because it is a “classic.” I do not want my students to leave the course without having a glancing familiarity with something they are “supposed” to have run into in law school.
What has been a minor pedagogical experience for me and my students has been, it is fair to conclude, an obsession for Angela Fernandez. She has spent a decade working on her new book, Pierson v. Post: The Hunt for the Fox, and has recently authored a “rewrite” of the Pierson v. Post dissent in which she adopts the style of someone writing in 1805 but advances feminist and animal rights sensibilities. My review will cover both the book and the “rewritten” dissent and will set them in relationship to one another.
Fernandez offers us a history of Pierson v. Post backed by impressive archival research. She shows how our simple lawyerly rendering of Pierson as a choice between different rule regimes obscures the complex literary, social, and intellectual universes that shed light on, even as they are illuminated by, the case. However, Fernandez follows no linear narrative, advances no neat argument, offers no simple “takeaway.” Instead, she picks up on the different leads the case presents and follows each into different archives. The result is a book without a stable center. The reader is offered exhaustive treatments of the following, each of which speak to some aspect of the case: the ribaldrous masculinist culture of literary games and theater engaged in by Anglo-American lawyers in the early nineteenth century; the practices of hunting foxes and whales; the lives of the Pierson v. Post litigants, their lawyers, and the judges; the relations between Native Americans and settlers in early nineteenth century New York; different legal characterizations of land and animals; the appropriation of Pierson v. Post in nineteenth century treatises and twentieth century casebooks; and so on. Fernandez even gives us photographs of the beach on Long Island where that famous fox hunt took place over two hundred years ago.
What is one to make of this profusion of different tracks that take the reader to so many different places? Fernandez tells us that she embraces the methodology of “legal archaeology” pioneered by the legal historian Brian Simpson, but hers is no mere uncovering of buried objects. (P. 42). Instead, she is engaged in a fox hunt. Towards the end of the book, Fernandez confesses that Pierson v. Post is “so unstable that it is a mistake to approach it as a straightforward legal text; it ought instead to be approached as a slippery and wily fox . . . . One relies on it . . . at one’s peril.” (P. 327). The book’s subtitle—“The Hunt for the Fox”—refers, then, to two fox hunts—Post’s hunt for the fox on the beach in Long Island and Fernandez’s own hunt for the fox-like dispute that it gave rise to. Fernandez chases Pierson v. Post wherever it will take her, from the New York archives to the plays of Shakespeare to the beaches of Long Island to the casebooks of the twentieth century and beyond. Like the fox, Pierson is wily, but its huntress refuses to give up. The parallels between the book’s structure (that of following Pierson wherever it will go) and the Post’s hunt for the fox among the scrub of a Long Island beach are, it must be emphasized, the genius of Fernandez’ book.
In the remainder of this review, I wish to highlight a particular kind of intellectual dilemma that is raised, in my mind, in the way Fernandez’s book on Pierson v. Post relates to her “rewritten” dissent in the case.
Apart from its structure, to my mind, the most important contribution of Fernandez’s book is the way it foregrounds the plurality of what law is. We might think of law as giving us rules to solve problems. In one sense, it is that. Fernandez would surely agree. Pierson is, after all, a case that presents us with different rules for deciding when wild animals become private property. However, in the book, Fernandez shows brilliantly that law has been—and continues to be—a great deal more. Specifically, she highlights the many ways in which the law relates to, produces, and offers up things that are not instrumental in any simple sense, things that constitute a kind of excess, things that refer back to themselves. Here I have in mind Fernandez’s exploration of the famous Livingston dissent in the Pierson case that takes us into the early nineteenth century masculinist legal culture of literary allusion, games, and theater and, later in the book, her investigation of the world in which law is the writing of treatises and case books all relating to and revising one another. The law, as she describes it for us, is these things—all of them excessive or self-referential in important respects—as much as it is about solving any particular dispute or problem. I agree entirely.
With this as background, I want to suggest that Fernandez’s “rewritten” dissent in Pierson v. Post—her act of “updating” the case to reflect her feminist and animal rights sensibilities in the voice and tone of someone writing in 1805—is yet another instantiation of this self-referential, excessive, allusive, theatrical or game-like legal tradition she explores in such depth. What is the point of “rewriting” a dissent to a two hundred-year old opinion, one might well ask? Why not just ignore the opinion, or criticize it, or declare it to be unjust or wrong? Why go through the laborious exercise of “rewriting” it? What is this if not a literary exercise—another act of self-referential theater or a game–in which the object points to itself as much as to the new politics it seeks to perform?
What is the relationship between this kind of self-referential legal-literary exercise with the conventional disciplinary historical one of situating Pierson v. Post “in context”? One of Fernandez’s stated goals in the book is to change our understanding of the case itself. As she herself puts it: “My intention in this book is to disrupt any previously dominant understanding of Pierson by changing the way we think about it.” (P. 326). We know an enormous amount about Pierson v. Post thanks to Fernandez’s attempt to track down everything related to it. But we do not really get a clear sense of how her hunt for details and the consequent massive building up of context relates to the self-referential, literary, theatrical, game-like quality of the law reflected in the original opinions in Pierson v. Post, the subsequent appropriation of the case by legal writers, and in Fernandez’s own decision to “rewrite” the Pierson dissent after learning all that seems humanly possible to learn about it. How does one historicize a game? Is history the best way of understanding a game? Is playing the game a better way?
Fernandez does both. On the one hand, she historicizes the games of law: the book can be read as history. On the other, as revealed in the book and the “rewritten” dissent, Fernandez plays the games of law herself, both in structuring her book like a fox hunt (itself a sport) and following her prey wherever it takes her and in artfully “rewriting” the Pierson v. Post dissent to transpose her political sensibilities into the language of the early nineteenth century. She offers novel ways of doing history and playing with and in history. For these reasons, her work merits our attention.
Cite as: Kunal Parker, The Hunt as History and As Game
(December 9, 2019) (reviewing
Angela Fernandez, Pierson v. Post: The Hunt for the Fox
Angela Fernandez, Pierson v. Post
in Feminist Judgments: Rewritten Property Opinions
In an era when refugees prize crossing American borders – and when political debates turn on whether to build a “beautiful wall” to stop them – we learn in Under the Starry Flag about a time that the United States lacked the power it has today to alter the citizenship of migrants. Lucy Salyer’s fine monograph tells a story of Irish emigration to the U.S. in British and American law and politics. We learn that the great migrations across the Atlantic in the nineteenth century occurred in something of a legal vacuum. Nobody was quite sure what the consequences of such migration would be. Even if migrants naturalized as American citizens, Britain and other European powers denied that their former subjects had severed their obligations to the homeland. If migrants returned to visit family, they were liable to arrest for failure to serve in the military, for example. If they returned and sought to foment rebellion, they were subject to prosecution for treason. Most people didn’t know this; others learned the hard way.
The Irish immigrants studied here were caught in the crosshairs. They already objected strenuously to the discrimination they suffered at the hands of American snobs (think, “no Irish need apply”) in the nineteenth century. They dreamed of sticking it to elite Bostonians and New Yorkers. But most of all, they hated the English. They became entangled in transatlantic diplomatic crises that they milked for publicity and personal celebrity. They were unlikely heroes, untutored in the many ways that their actions had crossed tacit boundaries and stirred already troubled waters. But they were stubborn, brave (for the most part), and idealistic. The reader is forced into grudging admiration.
It all started with great foolhardiness. A painfully small (40 men) group of Irish Americans – convinced of their prowess, apparently, by their experience fighting for the Union in the U.S. Civil War as well as news of a (quickly squashed) Irish uprising led by a group known as the Fenians in early 1867 – persuaded themselves that they could liberate Ireland from the cruel oppression of the British. They set sail in a rickety boat and disembarked in Ireland far from their original target, only to be arrested almost immediately. The British government and its emissaries in Ireland were in no mood to treat gently this rag-tag group that brought rifles and revolutionary rhetoric back with them to Ireland. The Irish had made trouble for their overlords for centuries, who in turn had become seasoned and remorseless oppressors, economically (75% of rural Irish lived in dire poverty), culturally (English-language only national schools), and of course legally. As Salyer puts it, British officials had no qualms about prosecuting Irish Americans for treason, because “corrupt American influences” underlay the most recent trouble, the Fenian project of the 1860s. (P. 47.) To eradicate Fenianism once and for all, American emigrants had to pay the price.
Therein lay the rub. Despite their arrogance and long-standing annoyance at “thin-skinned” Americans and their demands to be recognized as a sovereign nation among others, Britons were impressed that the U.S. had survived its devastating Civil War. Now American diplomats demanded Britain pay for losses inflicted by the notorious British-built Confederate raider C.S.S. Alabama. The beleaguered (and whiny) U.S. Minister Charles Francis Adams was loath to add American Fenians to his list of diplomatic problems, but he was forced to by the influence of Irish immigrants in American politics, and their effective cultivation of support in letters home that complained of wretched conditions and solitary confinement and were reprinted in the popular press. The Irish-born defendant John Warren brilliantly turned his trial into a showcase for the suffering of an American patriot at the hands of an empire of torturers. The British countered that the “excitable” Americans should forgive and forget the Alabama and leave punishment of the Fenians to the Queen’s justice. (Pp. 57, 174.)
Relations between the two countries deteriorated dangerously. Cooling tempers to avoid war in the late 1860s required all of Adams’s considerable savoir faire. In addition, the question whether emigration to America and naturalization there resulted in “expatriation” – that is, the end of obligation to one sovereign and the acquisition of a new citizenship under a different sovereign – became the question du jour for an emerging trend in legal thought and advocacy. Now, German immigrant Francis Lieber (best known to legal scholars today as the author of Lincoln’s Code of War) and other international “publicists” entered the picture. They argued that the old ways of seeing subjecthood as unchangeable were hopelessly antiquated because they rested on feudal notions of the divine right of kings. The modern era, by contrast, was governed by vast commercial networks that were made possible by nation-states. “Global capitalism and global migration” went hand-in-glove with new ideas of sovereignty, “smoothing and broadening the paths of commerce.” (Pp.180-81.) International law in the productive sense of the term was possible only by adapting to the new reality.
After many fits and starts that featured repeated and difficult negotiations between American and British and failed attempts to pass legislation on both sides, as well as constant rabble-rousing and political activism from Warren and his allies, the question of a right to expatriation was resolved in 1870 by legislation on both sides and a treaty. For the first time, Britain recognized the right to leave, as well as the possibility of naturalization for immigrants. At the same time, both sides hardened the boundaries, specifying that a married woman automatically took the citizenship of her husband. Equally important, Americans scrambled to explain how it was that Irish and German and Italian immigrants could be naturalized, but Chinese and persons of color had no such prospects. For their part, American Fenians were key supporters of the “white man’s government” that emerged from their otherwise unsuccessful foray into freedom-fighting. (P. 141.)
Salyer acknowledges that one might be tempted to conclude that victory for the Fenians in America means her story has a happy ending. The rest of the nineteenth century, however, saw increasingly virulent anti-Chinese activism and legislation, experiments in expulsion of communists in the twentieth century, and all kinds of shenanigans in the twenty-first. The Fenian legacy has been tarnished, pretty much from the start.
But the murkiness of the morals behind the story should not obscure the importance of Salyer’s work. Her remarkable deftness lies in crafting a page-turner that nonetheless yields deep insights into how the law of immigration affected diplomacy, politics, and especially the law of citizenship. The characters in Under the Starry Flag are painted with such fine attention to detail and telling attributes, that the reader is drawn in. The lessons of the tale – including the power of a new sovereign to supplant the obligations due to the former one, and the role of commerce in smoothing the paths of emigrants – make great sense as a result.
Scholars of capitalism, transatlantic and global migration, the changing face of white supremacy, and more, will find much to admire here. Students will find the text manageable thanks to Salyer’s historical craft. And for immigration lawyers, who grapple with the ways that the law of citizenship and migration had been under-theorized for the entire first century of American national history, Salyer’s work enriches and complicates our earlier understanding. Like Gerald Neuman’s now classic The Lost Century of American Immigration Law, Salyer challenges scholars to take a new perspective. This time, however, the focus is not just on U.S. laws of immigration, but the ways that claims of a right to expatriate posed uncomfortable questions for the British Empire. Ireland – the first colony of that empire – was at the center of the trouble, and the former colonies that had become a favored destination of the suffering Irish poured flames on the smoldering embers.
Less than 30 years later, the United States embarked on its own inaugural colonization project in Puerto Rico – now the world’s oldest colony. The many questions involving citizenship raised by the accession of the island and its inhabitants have also yielded fine work in legal history. Students of British and American legal history are teaching us that frequently the real action is at the periphery. This lesson is valuable for anyone studying the shifting contours of citizenship, as well as the role of commerce in the contours of empire.
As a procedural field, evidence law is often portrayed as technical and even arbitrary; the handmaid of substantive law. Orna Alyagon-Darr’s new book, Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine, dispels this notion, highlighting the ways in which evidence law—and procedure more generally—provides a reflection of the societies in which they operate, and may therefore serve as a rich source of social history. Precisely because procedural law is often depicted as morally and culturally neutral, it offers inadvertent clues to the thought process of various legal actors which substantive legal fields do not. In this book Alyagon-Darr, the author of Marks of an Absolute Witch (a study of witchcraft trials in sixteenth to eighteenth century England, the rules of evidence that governed them, and the social context these rules convey), turns her keen eye for fascinating and unusual details to another period and place: the interwar Middle East.
Plausible Crime Stories offers a fascinating analysis of the colonial archive of sex offenses in the Middle East during the interwar period. Based on 147 cases decided in the Haifa District between the years 1933-1948, Alyagon-Darr recounts the social and political histories of sex crimes in Mandate Palestine. To provide a richer and broader context, Alyagon-Darr also skillfully employs media coverage, in English, Arabic and Hebrew, to tease out public opinion towards such criminality within each of Palestine’s communities.
To examine “the meeting point of culture and law within the process of proof,” the framing principle at the center of Alyagon-Darr’s analysis is “plausibility.” (P. 6.) By focusing on plausibility, she proposes that we use legal and non-legal texts to “detect indicators of socially embedded elements.” (P. 6). In other words, she suggests that by reading legal texts and media accounts about the law critically we might uncover the underlying assumptions of the authors and the audiences for whom they wrote. These underlying assumptions are only rarely made explicit because authors found them unnecessary to articulate, making them far more telling of their world views.
The book begins with a 1944 case of attempted rape. In her husband’s absence, Nafsieh was sleeping with her baby on the roof of their family house when the defendant—her neighbor Nimr—appeared and allegedly tried to rape her. Despite the physical evidence of her torn shirt, her immediate report of the crime, and family members’ reports that they were awoken by a loud cry, British judge Curry found Nafsieh’s account “implausible”: first, he found it implausible that a woman would sleep alone on the roof of her own house, even on a hot summer night, in the absence of her husband; second, he found it “strange for a man in the middle of the night, to come commit an indecent act upon a woman unless there has been some friendship or encouragement to hope that he would not be badly received.” (P. 1.) Judge Curry found it far more plausible that Nafsieh would invite a neighbor to have sex with her on the roof of her husband’s family home in the presence of her baby; moreover, he found it plausible that when discovered, she would concoct rape allegations to protect her honor. The book portrays many such incidents, highlighting the various prisms mediating reality as perceived by legal and non-legal actors.
Readers will recognize many of the tropes analyzed in Alyagon-Darr’s accounts from feminist critiques of both substantive and evidentiary common law doctrines pertaining to sex crimes: the notorious corroboration requirement, the requirement of “resistance to the utmost”—and its implication, namely that intercourse simply cannot be achieved by a man of average strength against the will of an average woman. Alyagon-Darr’s analysis, however, brings the colonial context to bear on these issues, underlining the intersectionality of gender, sexual orientation, race and nationalism (to name a few). Mandate Palestine provides a particularly rich case study, as it allows for both the study of self-representation and the representation of others within Palestine’s various communities. For example, Alyagon-Darr analyzes Palestine’s distinctive statutory treatment of sodomy (which criminalized non-consensual penetration), as opposed to “offenses against the order of nature” (which penalized both parties in consensual, unnatural sexual relations). Alyagon-Darr meticulously traces the origins of this legislative distinction, contrasting between both the metropole and colony and between the British colonies themselves, to illustrate how perceptions of Middle Eastern sexuality informed such distinctive criminal provisions.
Beyond analyzing the distinctiveness of Palestine’s law in the books, Alyagon-Darr goes a step further in exploring the law in action: for example, she shows how in practice, “unnatural offenses” were typically only prosecuted against Arab defendants in cases where the authorities were forced to intervene, and typically in instances of power imbalances between the parties involved (be they physical, mental, or economical). Her explanation, once again, relates to plausibility: the notion that two men could share an emotional bond that would lead to homosexual relations, and that a man would voluntarily consent to penetration, was simply unfathomable. Additional facts had to be assumed for such a story to become conceivable: typically, the cases prosecuted involved an older and more powerful party, who exchanged money for sex. In crafting their defenses, litigants conformed to these judicial perceptions and tailored their stories accordingly, even when the record suggests that the relations were clearly consensual. In some cases Alyagon-Darr is even able to trace the changes that occurred in the defendant’s account from the moment they were caught until they stood trial, to conform with judicial and social expectations. In another chapter Alyagon-Darr demonstrates how perceptions concerning the plausibility of inter-communal intimate relations—particularly between Arab men and Jewish women—shaped judicial approaches to such cases, and the stories told by criminal defendants accused of crimes such as statutory rape: such relationships could only be deemed plausible when the Jewish girl in question was from a marginal group or a broken home.
Alyagon-Darr’s fascinating study is beautifully written, displaying keen attention to detail and sensitivity to the highly contentious subject matter. It is highly recommended for anyone interested in the history of sex crimes, the cultural history of legal procedure, or the complex relationship between law and colonialism.