Yearly Archives: 2018
Jun 28, 2018 Reuel Schiller
My mother, a life-long New Yorker, was an opinionated person. There were certain politicians she didn’t like, and, if they came up in conversation, she would not hesitate to tell you so. At the top of this list was Richard Nixon—hardly a surprising entry considering my mother’s identity as a postwar, Jewish liberal. (I don’t think Nixon would have liked my mom very much either.) Not far below Nixon was Gerald Ford. His greatest crime, of course, was pardoning “that sleazy bastard Nixon.” Ford’s perfidy, however, also hit closer to home. In 1975, as my mother’s beloved city spiraled closer and closer to bankruptcy, Ford refused to allow the use of federal resources to help New York weather its financial woes. “Ford to City: Drop Dead,” read the New York Daily News’ infamous headline after Ford announced that he would veto any federal legislation that would “bail out” the City. New York’s fiscal crisis cost my father his job at the City University of New York, so, as far as my mom was concerned, the “Drop Dead” was aimed at our family.
When it came to New York’s fiscal crisis, Ford was not the only politician who earned my mother’s scorn. A large portion of it was reserved for a man who could not have been more different from the tall, athletic, Midwestern president: Abraham Beame, the petite, uncharismatic accountant who had the misfortune to be the mayor of New York City when the crisis peaked. According to mom, it was Beame’s incompetence, his tolerance for profligate spending, and his subservience to both the corrupt Democratic political machine and municipal labor unions that brought New York to the brink of ruin.
Kim Phillips-Fein’s marvelous book, Fear City: New York’s Fiscal Crisis and the Rise of Austerity Politics, argues that my mother’s view of the crisis, which has become the received wisdom, is incorrect. She provides a detailed history of New York’s financial woes. The City, she explains, was committed to promoting social-democratic urbanism by enacting programs that promoted economic egalitarianism. These programs—free higher education, a massive city-funded system of public hospitals, cheap mass transit, for example—were expensive, but they did not cause the fiscal crisis. Instead, Philips-Fein argues that it was a combination of external circumstances (the end of the postwar economic boom, deindustrialization, and changes in securities markets) and the ideological desires of Republicans in the Ford Administration that drove New York to the brink of bankruptcy. Desperately in need of financial resources, the City was forced by Ford to cut its budget dramatically in exchange for the short-term loans that saved the City from bankruptcy.
Fear City also recounts how elites within the City used the crisis to create a new model of urban governance that emphasized austerity and government promotion of private economic development. This model, Phillips-Fein argues, has come to define our contemporary assumptions about the proper role of government. She demonstrates that these assumptions were justified by a morality tale about the fiscal crisis that was constructed by enemies of postwar liberalism. Leading this group were the austerity scolds of the Ford Administration, in particular, Chief of Staff Donald Rumsfeld and Treasury Secretary William Simon. Rumsfeld and Simon were intent on advancing a conservative, anti-statist political agenda by blaming the City’s financial woes on irresponsible government spending rather than on external structural changes in the economy. These fiscal conservatives were joined by right-wing moralists (think Pat Buchanan and Midge Decter), who decried the enervating effect of the “entitlement culture” created by the City’s generous social welfare programs. This narrative was then embraced by both local financial elites, who benefited tremendously from the new, low tax, “business friendly” policies of the City (Phillips-Fein demonstrates how a certain orange-haired son of a racist New York real estate developer benefited tremendously from the new financial order (pp. 257-60)) and “New Democrat” politicians (typified by Beame’s successor, Ed Koch), who rode to power attacking the social-democratic aspirations of their elders as hopelessly naïve and financially ruinous.
Fear City is, first and foremost, a political narrative—a gripping story, propulsively told. It is, of course, populated with the obvious characters: federal, state, and local politicians; New York business elites; powerful municipal union bosses; City bureaucrats. Phillips-Fein does not, however, limit herself to the politics that occurred in the halls of power. The book teems with grassroots activity. As the fiscal crisis forced the City to gut its public services, many New Yorkers rose up to defend their beloved institutions, be it a firehouse in working-class Williamsburg, Hostos Community College in the South Bronx, or Sydenham Hospital in Harlem. Phillips-Fein’s narrative thus forms around the push and pull that City officials were subjected to in the middle of the 1970s. Federal officials and the City’s elites demanded austerity, no matter the impact on the lives of New Yorkers. At the same time, those New Yorkers defended the services that they had come to depend on for their health, their safety, and their livelihoods. Phillips-Fein demonstrates that these New Yorkers lost this fight. Social-democratic New York—with its cheap transit fares, its free higher education, and its unparalleled public libraries—vanished. What replaced it was a city run for the benefit of corporate and financial elites. While New York is now portrayed as “the model of postindustrial urban triumph,” Phillips-Fein argues it is also a city of massive wealth disparities, crumbling infrastructure, and a shattered social contract. (P. 306.) As such, New York City is representative of the United States as a whole. It was a canary in the coal mine, the first victim of the ascendance of a new, austerity-oriented, privatized political economy over the egalitarian ambitions of postwar liberalism.
Fear City is not only a page-turning political history of the fiscal crisis. Phillips-Fein has also written an exceptional piece of legal history. Indeed, law courses through the veins of this book. Be it bankruptcy law, the law of municipal finance and taxation, or constitutional law, legal concepts are the armature upon which the story of the fiscal crisis hangs. Was the City approaching constitutionally mandated debt limits? Could the City legally suspend payments on municipal bonds to encourage investors to purchase state-backed debt instruments that would prop up the City’s failing finances? Did the advice of elite lawyers undermine the faith that banks had in municipal debt? What were the legal requirements of the budgeting process? One of Phillips-Fein’s triumphs in Fear City is to describe how the answers to these questions shaped the political narrative of the fiscal crisis.
Similarly, the story of the solution to the fiscal crisis sits on the boundary of legal and political history. New York State established hybrid municipal-state agencies to issue debt and control the fiscal operations of the City. The federal government’s support of the City was conditioned on the legal and constitutional authority of these novel agencies to assume control over the local policymaking. Then, as the crisis subsided, the City created new agencies—some public, other public-private hybrids—that implemented the new political order that combined austerity in traditional city programs with generous incentives for private economic development. Thus, Phillips-Fein’s story not only shows how law and legal actors were an integral part of the history of the fiscal crisis. She also demonstrates how the broad political shift that sits at the center of Fear City—from social-democratic liberalism to a privatized, market-driven political economy—required the creation of novel legal and administrative institutions.
This fact—that particular visions of urban governance come with their own novel legal institutions—is an obvious law and society platitude. Yet legal historians have not explored this intersection of urban history and legal history. Cities have often been a source of political and legal innovation. Phillips-Fein demonstrates this with respect to social-service provision and government finance, but it is also true in many other policy areas: civil rights, the environment, education, public health, and economic development, to name only a few. Cities were institutional innovators as well. Phillips-Fein describes the various administrative manifestations of the fiscal reforms imposed on New York City. Each earlier era of reform spawned similar municipal institutional innovations, be they the bridge and tunnel authorities of the Progressive Era, the housing authorities of the New Deal, or the human rights commissions of the postwar period.
This abundance of law at the local level suggests that legal historians should spend more time studying cities. Twentieth-century American legal historians tend to focus on law-making by the federal government, or on high-profile doctrinal areas, such as constitutional law, that are not directly related to the governance of American cities. Additionally, the legal history of cities is very much a history focused on administrative agencies and administrative law, both subjects that, until recently, legal historians have shied away from. Indeed, even the more recent interest in the administrative state has not focused on cities. Legal historians are “bringing the state back in,” but we have left out the smallest units of government, particularly as we study twentieth-century legal institutions. We need to devote time and resources to studying local governments lest we miss an important location of state-building and policy creation. Fear City is a model of how this can be done, and it demonstrates the enormous dividends to be had by doing so.
May 31, 2018 Angela Fernandez
The Inns of Court have long interested legal historians, particularly those who study the history of the legal profession. The fact that the Inns were sites of tremendous literary activity is not something that receives a lot of attention in the older legal histories of the Inns (e.g., those written by legal historians such as John Baker and Wilfred Prest). Scholars who do focus on the literary aspects of the Inns tend to be interested in those literary dimensions rather than the law, a tendency that Jessica Winston avoids by focusing squarely on legal professionalization and its link to literary activity. Winston’s book argues that the interconnections among literature, law, and politics at the Inns of Court are best explained by the increase in law-related positions in the growing administrative state in early modern England and the connection contemporaries made between literary skills and fitness for these jobs. Lawyers at Play elegantly traces the way that a group of individual men at the Inns in the 1550s and 1560s used the skills they learned at grammar school in poetry-writing and in translating plays and other works to recommend themselves for those new positions. Rather than focusing on the literary stars of the Inns from the 1590s and 1600s such as William Shakespeare, Winston shifts the focus to an earlier time period. These relatively unknown individuals, unknown at least to those who are not literary scholars of Renaissance England, set the stage, as it were.
When explaining why lawyers-in-training lived cheek by jowl with those pursuing drama and poetry, other scholars have tended to satisfy themselves with ideas about what London generally was like during the height of the Inns. So, for instance, Phillip Finkelpearl, author of an excellent book on the important playwright John Marston who lived at Middle Temple in the 1590s, focuses on the fact that a severe housing shortage in London led poets like John Donne and playwrights like Marston to live alongside those pursuing a legal education at the Inns. The lusty and lively environment of Elizabethan London, it is conjectured, led/misled many of those would-be lawyers into literary pastimes, for example, attending and participating in elaborate revels and masques—some written by Shakespeare.
However, no one, until Winston, has pushed beyond the general environmental/geographical point to explore what exactly the connection was between literary activity at the Inns and why it was so intense at some moments and less so at others. Yes, it was London and yes, it had a vibrant intellectual scene, but that was true before the 1550s and remained true after. The “playing,” or literary activity, was not at the Inns to any great extent before the mid-sixteenth century. It greatly diminished by the 1570s and disappeared by the mid-seventeenth century. “If the locality and intellectual climate of the Inns did not change dramatically over time, what accounts for these phases in literary activity? What else fostered the development of literary clusters at the Inns at particular moments?” (P. 45.) Winston’s answer is legal professionalization, specifically, the wide array of legal positions that became available in the 1560s in the Elizabethan administrative state and a perceived connection between literary skills and fitness for those offices.
The first noteworthy feature of Winston’s approach, which I must highlight because it is deployed so effectively, is her use of prosopography, or collective biography, working with a generational group from the 1550s and 1560s rather than a single individual such as Marston. (See p. 49.) Winston emphasizes that this was the first generation to have received a thoroughly humanistic education at grammar school, one that emphasized classics, rhetoric, and service to the commonweal. This fact turns out to be important, as these young men brought habits of mind from that earlier education to the Inns, where they created a new habitus (to use the phrase from Pierre Bourdieu that Winston borrows—see p. 32.) ”[T]he daily drills and corporal punishments of grammar school education inculcated a set of behaviors, preferences, and habits of comportment, experienced and re-enacted in the habits of mind, dispositions, and even the bodily carriage of the students themselves. The customs and tastes—the habitus—of the grammar school were engrained at a corporal and psychic level.” (P. 55.) These men were, Winston writes, “mainly twenty-something, non-aristocratic, university-educated, Protestant, junior members, who turned to literature as part of a career trajectory that aimed for positions in law, at court, or elsewhere in the bureaucratic infrastructure of the Elizabethan state.” (P. 7.)
This was a time of rising litigation rates and a growth in administrative roles across England that required at least some legal knowledge. Employment opportunities in other sectors such as the Church had diminished. Students at the Inns mobilized the literary skills they learned in their classical educations to demonstrate their fitness to enter into what Winston calls “the legal magistracy.” Positions were available and lawyers were needed, creating “an important exception to the otherwise timeless gripes about lawyers.” (P. 57.) Justices of the peace or magistrates, town recorders, and other civic office holders were in great demand. It was more important that these men be virtuous than that they have technical legal knowledge or skills. (See pp. 221-22.) Involvement with literary works that discussed virtue was taken as a demonstration of virtue, thereby closing the “gap between ideology and practice at the heart of humanist theory.” (P. 54.)
Being a justice of the peace did not involve much poetry writing, hence the gap. However, as Chapter 2 explains, writing poetry that rejected romantic love as dangerous and extoled the virtues of public service demonstrated that the author had at least thought about what kind of virtue made one fit for public office. Winston highlights concerns among some of the chief men in the government about the quality of those taking on England’s administrative positions. And so writers at the Inns took to producing a “literature of magistracy” “to train current magistrates and advise them about their responsibilities, to guide the thinking of magistrates-in-training at the Inns, and also to demonstrate the authors’ commitment to and ethical preparation for being legal magistrates themselves.” (P. 51.) As Winston puts it, “long term trends in humanist education met undersupply of legally trained men to meet England’s litigious and administrative needs.” (P. 50.)
One of the great strengths of Winston’s work is her broad understanding of what constitutes literature—not just a poem or a play but also a treatise or a translation. Consider Chapter 4, which emphasizes how creative the Innsmen’s translations were, taking liberties with the original texts and really making them into their own works. This activity was, Winston explains, a way to transfer “the former political and intellectual dominance of Greece and Rome to England.” (P. 100.) This was seen as particularly important due to the anxiety that existed about England’s lagging behind Continental Europe, especially Italy, which had much more material available in its vernacular culture. (Pp. 114-15.) By translating one of these texts, a member of this particular generational group helped to enrich English vernacular culture (e.g., translating a work in Latin by Cicero into English) and at the same time make himself into (and demonstrate to others that he would be) an ideal magistrate, putting himself in service to the state like Cicero himself. Winston calls this “a double translation: the transformation of the translators themselves and of the political and intellectual state of England.” (P. 100.)
Winston spends a number of later chapters in the book exploring the role of dissent and just how far Innsmen were able to take things “under the cover of fiction” (p. 188) before they would retreat, fearful of repercussions from an increasingly sensitive Elizabeth (at least on matters that touched her unmarried status and the national anxiety relating to the problem of her succession). “Counsel literature” with political content demonstrates that the Inns created what Winston calls “a semiautonomous political space.” (P. 51.) Giving advice to the monarch or her counsellors shows that the Inns were developing their own corporate or collective identity as a space separate from and independent of court and Crown. The Inns had their own jurisdictions with their own ways of doing things and understood themselves and were received in that way by audiences. (Pp. 197, 216.)
Winston concludes her book by stating that “[t]he full story of law and literature at the Early Modern Inns of Court remains to be told.” (P. 225.) However, she has amply demonstrated that “literary activity [at the Inns] intensified at crux moments in the transformation of the legal profession.” (Id.) Hence, there was a logic to why the activity appeared and receded which was previously unappreciated and unexplained. Winston’s book demonstrates what it set out to prove, namely, that “at the Inns of Court literary play was the unacknowledged but ever-present associate to the common law in the history of early modern legal professionalization.” (Id.) It is a new must-read for those interested in the history of the common law and the Inns of Court.
May 1, 2018 Jedidiah Kroncke
Scholars from a variety of disciplines have begun to explore what they see as the lost virtues of political economy. In its broadest conception, this term is meant to capture the basic truism that any study of politics or economics should reflect their mutually constitutive character. A renewed interest in political economy and the law further reflects the same mutuality among law, politics, and economics. Central to such renewal is a claim that analytically segregating these fields leads to analysis that is both descriptively inaccurate and has powerful and troubling normative consequences.
Sabeel Rahman’s Democracy Against Domination is a leading example of a new generation of scholarship that demonstrates both the descriptive and normative promise of law and political economy. Rahman’s mission in the book is to reinfuse debates on financial regulation with overt concern for democratic participation and to recover an ethos that sees American economic and political citizenship as inextricably intertwined. Rahman’s history traces how this ethos was lost over the course of the twentieth century, and in doing so produces a sustained historical inquiry about how we arrive at what is considered “normal” or inevitable about legal regulation. Domination’s chapters follow the pattern of presenting a modern problematic in regulation and then demonstrating how contemporary responses are both democratically impoverished and historically contingent. The aim of the endeavor is to argue that fields of law that have been exorcised of any referent to democratic values, notably antitrust and administrative law, need to be reopened and remade. The alternative is to face pressing issues of inequality with an ultimately ineffective set of regulatory responses.
Domination’s history serves this mission by revealing the path by which political, legal, and economic concepts became isolated from each other in our collective intellectual and social vocabularies about regulation. The key consequence of this isolation has been the naturalization of unequal distribution of material resources and circumscribed democratic participation. Rahman’s critique echoes the classic tension between formal legal freedom and substantive liberty as a lived experience. His recurrent use of “domination” itself explores the social context of political and economic choice, and its often illusory character in practice.
Rahman begins his narrative at the 1892 national convention of the People’s Party in Omaha, Nebraska. Labor historians have long invoked the turn of the twentieth century as a time when the American regulatory response to industrial capitalism was unsettled and open to far more trenchant critiques. Rahman’s use of this era as a touchstone recaptures past imaginations of American citizenship in an era when legal and economic thought were more tightly intertwined. His favored example of antitrust regulation stands out as a regulatory response that originally justified itself through assumptions about the inherently political consequences of capital distribution, and vice versa. Not confined to static analyses of maldistributions of income or wealth, scholars and activists of this era saw financial regulation as an iterative process to realize democratic opportunity and accountability. As others have also noted, one can look to the work of thinkers like Richard Ely and John Commons as the true first wave of “law and economics” scholarship.
In welcome addition to the common cast of characters associated with histories of labor republicanism, Rahman’s intellectual anchors are Louis Brandeis and John Dewey. Each thinker emphasizes a different aspect of the relationship of regulation to domination, with Brandeis focusing on what Rahman calls dyadic domination, or the exertion of concentrated private power over individual citizens, and Dewey focusing on what Rahman calls structural domination, or the cumulative restraint of social institutions and practices on democratic agency. Rahman’s analysis of Dewey’s pragmatism is especially interesting as a theory of iterative learning that applies directly to how regulators should approach democratic decision-making. Rahman’s critical engagement with Brandeis’ thought is specifically revealing in its own right of the relevance of integrating legal thought with the broader concerns of political economy.
The central descriptive claim that Rahman makes is that a loss of this earlier concern with domination leads to a false contemporary choice between the competing theories of laissez-faire and what he terms “managerialism.” One of Rahman’s primary objectives is to take seriously the critiques that laissez-faire proponents advance, which he sees as possessing a “compelling moral account of freedom with a sophisticated institutional critique of government.” (P. 170.) For Rahman, it is essential to recognize the force of these critiques, as they led directly to New Deal proponents sideling their concerns about economic and political dominations. Instead, they responded to critiques of state domination by defensively retreating to managerialism—which justified the regulation of markets solely through the rigor of technical expertise. Managerialism ultimately transformed inequality into a technical problem, rather than an issue of democratic accountability, and entrenched an expert anti-politics that still is at the heart of recent Democratic administrations. For Rahman, the failure of the New Deal lies centrally in eliding the tough but essential questions of how to incorporate the democratic participation of citizens into what today are considered arenas of pure technical expertise. Moreover, over time this technocratic move then undermined the tradition of civic mobilization that had energized earlier movements for regulatory accountability.
Marking his contemporary critical ambitions, Rahman goes beyond intellectual history to take on pragmatic issues of “institutional design.” Domination focuses on financial regulation exactly because it is now understood as of great importance, but also generally invisible to the daily life of most citizens. Rahman advances his own vision of financial regulation as molded by a theory of democratic inclusivity, casting concerns with administrative overreach, tied to the rule of law or balance of powers, as insufficiently informed by parallel concern with the private sources of anti-democratic domination highlighted by Brandeis and Dewey.
It is here that hereto sympathetic readers might balk at how deeply embedded Rahman’s historical account is with his own normative ambitions. But such ambitions are not hidden nor are they central to his descriptive archaeology. This openness allows Rahman to flesh out the application of these earlier ideas to specific arenas of financial regulation today. His discussion of the potential regulation of financial institutions as public utilities in Chapter 6 is thus rendered both imaginative and plausible. He achieves this by revealing the normality of such a perspective in the early twentieth century, how it was justified under domination concerns, how it was lost, and what it might look like reinvigorated today. In Chapter 7, he repeats the same for the design of the administrative state.
He frames much of Domination to explain the fate of financial regulation under the Obama administration. Rahman relates his own anticipation that the administration would reaffirm some of these past ideals, and revitalize democratic regulation. Domination is subsequently marked by disappointment that such reimagination succumbed to doubling down on managerialism and the comparatively timid regulatory response to the Global Financial Crisis as compared to that after the Great Depression. As nostalgia for the Obama administration grows within the Democratic party, some could characterize Rahman’s critique as an indulgence. Defenses of expertise are now commonplace in the midst of the resurgent success of laissez-faire.
Yet, part of the historical lesson Domination presents is that the democratic impoverishment of managerialism has become self-fulfilling. If one creates a system of regulation that presumes that citizens have no role in the administrative state, then it should not be surprising when they feel increasingly alienated from it. An anti-democratic technocracy inures citizens to public reason, and sets up the false set of choices that today seem natural.
Furthermore, Rahman’s history demonstrates the great potential for legal scholars and lawyers to serve as key intermediaries in translating constitutional hopes into institutional realities. Many lawyers struggle with the relationship of their expertise to social movements, but Rahman shows us that it is not expertise that is the enemy of democracy but the presumption that its purview is exclusive. Expertise can co-exist with democratic accountability through visibility and accessibility, but not solely through its own rigor. Rahman has himself worked to show how the participation of legal scholars is key to attempts to revitalize a democratic political economy in America.
In this way, Rahman’s history is also timely given larger global debates on economic citizenship. His discussion of John Dewey’s view of democratic freedom resonates with those expressed by Amartya Sen in grappling with economic development and human flourishing. If there is one weakness to Rahman’s history, it is that it only touches on parallel debates abroad, signaled by his mention of participatory regulation in Brazil, India, Indonesia, and elsewhere. In reverse, authoritarian regimes across the globe are experimenting with testing the limits of elections as a mechanism of democratic accountability and using regimes of technical expertise as substitutes for democratic participation. But such limitation is more invitation than true critique.
In the end, it is possible that one might not be persuaded by the rich and intensive account of democratic citizenship Rahman imagines. Some might feel that citizens are all too happy to accept the excision of democracy from their daily lives, and to portray protests as only potential inconveniences in their daily commutes. But if the recent furor over network neutrality is any indication, citizens wanting to participate in regulatory debates are not in short supply. Yet, mechanisms to render their participation meaningful are. Establishing that this is a genuine problem for American democracy is a more than satisfying payoff for Rahman’s historical efforts.
Mar 23, 2018 Christopher W. Schmidt
One of the key contributions Melissa Milewski makes in her important new book, Litigating Across the Color Line, is a novel and rather surprising answer to a central question for historians of race and the law: why, in the period between Reconstruction and the modern civil rights era, did African Americans maintain such faith in the courts?
The standard answer, in one version or another, has been: what else did they have? During decades when the controlling institutions of American society systematically oppressed blacks, the courts, and particularly the federal courts, were the least bad choice available for oppressed racial minorities. This helps explain why the NAACP invested time and resources in litigation campaigns in its early years; it also helps explain why African American attorneys such as Charles Houston and Thurgood Marshall committed themselves to a path that placed lawyers and judges at the vanguard of the battle against Jim Crow.
Kenneth Mack, in his 2012 book Representing the Race, offered another answer to this puzzle of black commitment to the courts. He examined the lives of African American lawyers from the 1920s through the 1950s and found that the courtroom itself offered skilled black lawyers unique opportunities to perform in a relatively egalitarian setting. The courtroom, according to Mack, “remained open to the crossing of racial boundaries in a way that most other public places were not.” For some black lawyers, the courts offered a valued space in which to cultivate a professional identity.
Milewski, a historian at the University of Sussex, presents yet another explanation for this resilient faith in the courts among African Americans. Shifting focus from black lawyers to everyday black citizens, she advances a simple and striking claim: for African Americans in the Jim Crow South, the courts generally worked. In the years between Reconstruction and the civil rights movement, a time when southern blacks were excluded from holding office, voting, serving on juries, a time when segregation by custom and law defined public life in the South, African Americans fared surprisingly well in the courtroom.
This important and counterintuitive point, Milewski is careful to note, requires some immediate qualifications. When prosecuted by the state for crimes, especially crimes (or accusations of crimes) with white victims, African Americans received justice that was harsh and unequal. Yet when it came to legal disputes over property, wages, injuries, and various other civil matters—the focus of the book—Milewski demonstrates that the white judges and juries often did in fact provide fair treatment for black Americans.
This is not an easy topic to research, and one of the pleasures of Litigating Across the Color Line is Milewski’s discussion of the challenges posed by her research subject and the creative solutions upon which she settled. For the most part, trial court records of this period are either nonexistent or exceedingly difficult to find, and extant records are often incomplete. To navigate these source limitations, Milewski focuses on civil cases between white and black litigants that reached the state supreme courts in eight ex-slave states (Alabama, Arkansas, Georgia, Kentucky, Mississippi, North Carolina, Tennessee, and Virginia) between the end of the Civil War and 1950. Narrowing the scope of her research to this subset of appealed cases allows her to more systematically evaluate her topic; the book includes an appendix of tables breaking down her data. Furthermore, the cases that reached state supreme courts often have case files with which she reconstructed the earlier stages of litigation. In brief form in the body of the book and at more length in an appendix, Milewski offers wonderful descriptions of the challenges of the archives and, more generally, the work of the historian.
Milewski’s impressive archival research led her to identify 1,377 civil appeals that reached these eight state supreme courts between 1865 and 1950 in which she could identify a black litigant. A third of these were disputes between black litigants (most often over wills and estates). The rest were between black and white litigants; these thousand or so cases are the focus of the book. Her headline finding: in appeals of civil cases involving disputes between blacks and whites, state supreme courts held in favor of the black litigant more often than the white. (Blacks won fifty-nine percent of these cases.)
What accounts for this surprising fact? Among Milewksi’s several explanations, one of the most compelling is a theory of hegemonic preservation: by maintaining a certain level of fairness in the civil litigation process, whites were able to create a more effective system of white supremacy. Blacks tended to win in cases that whites did not see as threatening the racial status quo. In civil cases that directly challenged racial discrimination, black litigants lost far more than they won. In appeals of criminal convictions, black defendants lost more than they won. The average property dispute, personal injury claim, or fraud suit, by contrast, did not appear to challenge white authority. The cases she considers were litigated almost exclusively by white lawyers; they were decided by white judges and, in most cases, all-white juries. Milewski notes that successful black litigants often presented themselves in ways that aligned with white stereotypes—deferential, vulnerable, ignorant, non-threatening. Black legal victories were both an exception to the general rule of white supremacy and a product of it.
Litigating Across the Color Line brims with other interesting findings. Milewski notes, for instance, that forty-one percent of the civil cases she examined had a black woman as one of the litigants. She also locates changes in litigation patterns over time. In the period between 1865 and 1900, a large percentage of cases involved black litigants suing their previous owners, usually over disputes over wills and property. In the early twentieth century, personal injury and fraud suits were the most prevalent form of interracial civil suit; by the middle of the twentieth century, most disputes involved property, contracts, and wills. In these later decades of her study, Milewski also notes an increase in African American litigants advancing broader claims for equal treatment as part of their civil suits, sometimes with the support of racial justice organizations, such as the NAACP.
Milewski’s approach has its limitations, as she readily acknowledges. Her data set is not necessarily representative of the universe of civil cases that got to court. Appealed cases often involved black litigants with more knowledge and resources. These litigants likely had, on balance, stronger legal claims than the run-of-the-mill case that never got beyond the trial court. Nonetheless, even taking into account these recognized limitations, Litigating Across the Color Line offers fresh insights and much material for further exploration.
Although this book offers powerful insights about dynamics of the black freedom struggle, this is not a book about crusaders. Few of the cases Milewski considers directly involved race or racial discrimination. Her protagonists are regular people with everyday problems—property and wage disputes, contested wills, personal injuries. They wanted solutions. And the courts, in many instances, gave them what they wanted, even when it required a white judge or jury to declare a black person right and a white person wrong. They “made a biased system work for them under enormous constraints.” (P. 3.) And even if the African Americans who took their problems to court did not see themselves as egalitarian crusaders, and even if whites did not recognize interracial civil suits as challenging their racial privileges, Milewski insists that these cases “were just as radical and significant as cases focused on civil rights that gained the nation’s attention.” (P. 190.) Former slaves were able to win cases against their former masters; sharecroppers were able to win cases against white landowners. The reconstruction of this remarkable story is a major contribution to legal historical scholarship.
Cite as: Christopher W. Schmidt,
Quiet Justice, JOTWELL
(March 23, 2018) (reviewing Melissa Milewski,
Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights (2017)),
https://legalhist.jotwell.com/quiet-justice/.
Mar 8, 2018 Anders Walker
In Hitler’s American Model, James Q. Whitman explores Nazi Germany’s focus on American law, taking on the conventional view that Germany found little of interest in the United States. (P. 4.) Whitman demonstrates otherwise, arguing that even though the Germans rejected racial segregation as it was practiced in the American South, they undertook a “sustained” examination of other aspects of American race law, including restrictions on immigration based on national origin, prohibitions against interracial marriage, and rules that fostered “de jure and de facto second-class citizenship for blacks, Filipinos, Chinese, and others.” (P. 5.)
Rooting his argument in a fascinating array of sources, Whitman demonstrates that Nazi lawyers became particularly interested in American immigration restrictions. They focused on a series of quotas enacted in the 1920s that limited immigration based on the ethnic groups that were already in the United States, an approach that favored northern Europeans from England, Scandinavia, and Germany – all groups that the Nazis loosely classified as “racially related” and the truest expression of the American “volk.” (P. 54.) That America had a “volk” might be news to some, but this is why Whitman’s study is so interesting. It suggests strongly, and persuasively, that America’s commitment to white supremacy eclipsed – or rather subsumed – its other projected ideals abroad, including for example its commitment to democracy, a value that Woodrow Wilson had trumpeted loudly during World War I. “That the Americans have begun to think about the maintenance of race purity,” wrote Nazi legal expert Martin Staemmler in 1935, “can be seen in their immigration laws, which completely forbid the immigration of yellows, and place immigration from the individual European countries under sharp supervision, here principally admitting members of the decidedly Nordic peoples (English, German, Scandinavian states).” (P. 55-56.)
Also of interest to the Nazis were American measures aimed at denying equal citizenship to racial minorities, including African Americans in the South. According to Nazi lawyer Heinrich Krieger, “covert legal subterfuges” in the South were to be praised for “depriv[ing] the black population of full political rights,” precisely because they protected the “ruling race” from African-American influence. (P. 67.) This was an idea that the Germans could, and did, use against Jews, along with American prohibitions on interracial marriage that proved “deeply appealing to Nazis.” (P. 79.) For example, Nazi lawyer Roland Freisler praised the American South, declaring that it was “well-known” that “the southern states of North America maintain the most stringent separation between the white population and coloreds in both public and personal interactions.” (P. 86.)
Of course, Nazi Germany went well beyond banning marriage, deciding by 1941 that the “final solution” to their problem with non-Aryan minorities was annihilation. Such a directive was never adopted in the United States, even vis-à-vis its Native American populations – and Whitman is careful to note that, conceding that the Nazis tended not to copy American law verbatim, but rather took America’s commitment to white supremacy as evidence that “the winds of history were blowing in their direction.” (P. 71.) This alone is reason to read the book, both for what it says about Germany, and also for what it says about America, helping to explain that as bad as the Nazis may have been, they were not operating in a vacuum, and certainly were not alone in their commitment to the idea of a racialized state.
However, Hitler’s American Model also raises questions. To what extent, for example, were Nazi interpretations of American law shaded by their own idiosyncratic plans for Germany? Whitman concedes, for example, that the ultimate objective of these “Nuremberg Laws” was to “drive Jews to emigrate,” i.e., to leave Germany. (P. 48.) This was a project that did resonate with American history, but not necessarily the history that the Nazis focused on. The colonization campaigns popular among nineteenth century abolitionists and the treatment of Native Americans by the federal government might be viewed as forms of exclusion, for example, but these were not areas of law that interested Nazi lawyers. They focused on the twentieth century, which boasted some exclusionary measures – prohibitions on immigration – but also more complicated regimes. Proponents of southern segregation, for example, sold their system not as a means of eliminating African Americans from the region – they needed black labor – but as a bizarre form of pluralism, a legal arrangement that provided for the close interaction of the races, meanwhile endorsing separate black institutions, traditions, even culture. Segregationists also argued that African Americans stood the best chance of finding happiness in the South, and expressed anger when – beginning with World War I and continuing through World War II – they left.
While such arguments may have been deluded, they were not German. The Germans sought elimination, not coexistence, whether through “coerced emigration” or mass murder – a very different project from the one undertaken in the U.S. This undoubtedly explains why scholars have not found an American model before, but it is still worth noting – as Whitman does – that they found much of interest nevertheless, and perhaps even saw America as a prototype of the kind of racialized state that they sought to perfect. As the National Socialist Handbook put it, America “had achieved the ‘fundamental recognition’ of the historic racist mission that Nazi Germany was now called to fulfill,” an observation that – true or not – startles today, given what the Nazis then did. (P. 71.)
Editor’s note: For another review of Hitler’s American Model, please see Pat Gudridge, Alabama Song? Lotte Lenya? No. Adolph Hitler!, JOTWELL (March 8, 2018).
Cite as: Anders Walker,
Heil Jim Crow?, JOTWELL
(March 8, 2018) (reviewing James Q. Whitman,
Hitler’s American Model: The United States and the Making of Nazi Race Law (2017)),
https://legalhist.jotwell.com/heil-jim-crow/.
