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Jan 21, 2025 Samy Ayoub
Islamic legal theory places great importance on the distinction between general and specific language (al-ʿāmm wa al-khāṣṣ). This new article by Omar Farahat draws on the philosophy of law to distinguish between internal and external generality. Internal generality refers to how the law maintains its coherence and intellectual consistency, while external generality deals with how the law applies to different social situations. These are analytical tools used to understand Islamic legal principles and their application. They primarily refer to the way Islamic legal principles are articulated and the scope of their applicability.
Internal generality refers to the universality of Islamic legal principles within the Muslim community such as the obligation to perform daily prayers. These rules imply that a particular legal principle is meant to apply to all Muslims, regardless of their specific social, geographical, or cultural circumstances, provided they meet the conditions of the rule. External generality refers to the applicability or relevance of Islamic legal principles beyond the Muslim community, often in interactions with non-Muslims or in multi-religious contexts. It considers how Islamic principles are communicated or enforced in situations involving non-Muslims or international matters. For example, the principle of upholding contracts applies in dealings with both Muslims and non-Muslims.
Farahat discusses how generality of rules and their exceptions in Islamic legal theory promoted the inner morality of Islamic law. General rules aim to apply broadly, while exceptions provide necessary flexibility. Both generality and specificity play a critical role in ensuring that the law remains coherent and adaptable to different circumstances.
Farahat argues that a central aim of debates on generality and exception in Islamic legal theory was to maintain a coherent relationship between intent, language, and norms. The article highlights the theological underpinnings of these debates, particularly how jurists viewed the relationship between divine intent and the language of legal texts.
Farahat examines how general and specific expressions are discussed by two influential sixth/twelfth century jurist-theologians from different juristic and theological backgrounds: the Shāfiʿī-Ashʿarī Abū Ḥāmid al-Ghazālī (d. 1111 C.E./505 A.H.) and the Central Asian Ḥanafī-Māturīdī ʿAlāʾ al-Dīn al-Samarqandī (d. 1145 C.E./539 A.H.). Farahat maintains that these two influential jurists approached the generality-specificity question from different theological perspectives but reached similar practical conclusions about how legal norms should be formulated.
The jurisprudential approaches of al-Ghazālī and al-Samarqandī reflected their views on the relationship between revealed or legislative language and the Legislator (God). First, al-Ghazālī–—representing the Shāfiʿī-Ashʿarī tradition––viewed law as fundamentally rooted in language. He believed that the jurist’s role was to analyze the language of the law without directly interpreting divine intent.
For al-Ghazālī, generality and specificity were features of language rather than reflections of divine will. He argued that general language should usually be taken at face value unless there were clear indicators that a specific exception applied. Al-Ghazālī positioned the law squarely within the realm of language, detaching it from divine intent, thereby making the jurist’s role purely one of language analysis. This perspective led him to view the generality and specificity of norms as outcomes of particular linguistic investigations, with exceptions seen as mere reflections of the linguistic boundaries of a rule.
On the other hand, al-Samarqandī––from the Ḥanafī-Māturīdī school––took a more intent-focused approach. He assumed a clearer division of labor: norms are embedded in divine intent, while language points to that intent. Thus, the juristic formulation of norms becomes an effort to mirror divine intent in terms of generality and specificity. Al-Samarqandī considered divine intent, however elusive, as the source of revelation. He believed that while general language indicated plurality, it could be subject to specification, and the jurist must carefully discern divine intent in applying general rules.
Farahat concludes that debates among scholars in classical Islamic legal theory were pivotal in bridging theological and practical concerns. These discussions were integral to developing coherent models for deriving normative pronouncements from revealed language. Their models sought to interweave divine speech and human conduct as key to the process of legal creation.
Classical Muslim scholars focused on ensuring that legal norms were internally consistent and aligned with divine will. Farahat explains that, contrary to the premodern jurist-theologians, modern reformists rely on purely hermeneutical techniques as a tool for reform to introduce legal change and suggests that this perspective is not a generative exercise. This article contributes to a deeper understanding and appreciation of how Islamic legal scholars grappled with linguistic and theological questions to produce a vision of law.
Farahat’s contribution challenges the assumptions underlying contemporary approaches in both the legal academy and normative calls by reformists for revival and renewal. He demonstrates how classical Islamic legal theorists were concerned with bridging historical, theological, and practical matters while articulating a vision of law in society. Farahat shows how, in contrast, modern textual approaches suffer from poverty in their conceptual premises. He invites researchers to reject the ahistorical and essentialist notions of text and discipline.
In these discourses, Islamic legal theory is confined to modern legal notions of textual authority rather than the dynamic, God-centric approach of pre-modern Islamic legal thought. Farahat’s goal is to integrate Islamic legal theory into broader socio-political, economic, and moral theories that address modern realities rather than reifying historical disciplines or texts.
Nov 28, 2024 Thomas J. McSweeney
We are not used to thinking of medieval people as innovative or forward-looking. The Middle Ages have been constructed as the quintessential backward-looking era, and this affects the way we think about medieval law. One of the grand narratives of medieval law is that early medieval Europe was governed by a customary law that treated past practice as normative. To medieval people, the “good, old law” was good precisely because it was old, to the extent that, even when medieval people created new law, they justified it by claiming it was old. In The Time of Custom and the Medieval Myth of Ancient Customary Law, Ada Kuskowski challenges the assumption that medieval people looked to the past for legal authority and argues that medieval people most often associated custom with the present, not the past, and treated it as something that could change, often quite quickly.
Kuskowski’s piece does two things: first, it surveys writing about custom between Late Antiquity and the fourteenth century to show that there was a wide range of discourses about the way customary law related to time. The leges written in the kingdoms that succeeded the Western Roman empire were held up by jurists and scholars from the sixteenth to the nineteenth centuries as written statements of ancient Germanic custom. Kuskowski shows that in these texts “[t]he old and customary was neither good nor desirable…” (P. 162). The texts instead present themselves as projects to update, improve, and renovate the law.
Notable is Kuskowski’s discussion of the French coutumiers. The coutumiers present themselves as discussions of customary law, usually of a particular region, and Kuskowski argues persuasively that they were not bound to any idea that custom needed to be old to be good. Indeed, they usually presented their custom not as a thing of the past, but as a thing of the present. Custom is, at times, described as “old” in the coutumiers, but is also at times described as “new,” “current,” and even “modern” (P. 172, Pp. 174-175). The authors of the coutumiers saw their texts not as recording what had always been done, but as recording the current practice in a time of rapid change.
It is not, however, that medieval people never thought of age as conferring authority; the “good, old law” was not solely invented by historians. Medieval scholars of Roman and canon law, writing from the twelfth century onwards, became interested in custom as a category of binding norms. They were particularly interested in the question of what made a custom binding. A common theme in their writings was that a legitimate and binding custom was something that had existed for a long time, either a quantified period of ten, twenty, thirty, or forty years, or from “time immemorial.”
Indeed, Kuskowski shows that the idea of “time immemorial,” which became so important in English law, only appears in discourse about custom starting in the twelfth century. Far from being evidence of a medieval “customary mindset,” it was an innovation introduced by university-trained jurists. The coutumier authors started to justify their customs in terms of antiquity from the turn of the fourteenth century, and then it was clearly because people who had been trained in Roman and canon law were importing the discourse of the good, old law from the debates within those fields. In emphasizing the idea that custom is given normative force by its age, scholars have been reproducing the rhetoric of the civilians and canonists, who were actively trying to distinguish custom from the lex they studied.
Second, the article explains how the notion that custom derived its authority from its antiquity became such a pervasive theme in the historical literature on the Middle Ages. Kuskowski tells the story of how medieval custom was constructed as backward-looking, particularly in the scholarship of the nineteenth and early twentieth centuries, in opposition to modernity. Kuskowski takes us from the sixteenth century to the twentieth, explaining how various political, social, and philosophical agendas reinforced this idea. In the nineteenth century, for instance, the historical school of jurisprudence and its emphasis on discovering the spirit of a nation through its ancient laws made customary law into “a primitive but exalted origin of the national heritage” (P. 151).
But at the same time, other currents in European thought were treating custom as a “superseded relic of the past” (P. 151). Enlightenment thinkers presented custom as an archaic and inherently irrational holdover of an earlier era that needed to be swept away by rational legislation. All of this led to a view of custom that, by the beginning of the twentieth century, treated it as, on the one hand, primitive and tradition-bound, and, on the other hand, as a revered relic, symbolic of the nation. Custom could be celebrated, but ultimately had to be superseded.
One of the most significant contributions Kuskowski makes in the article is to show the mechanisms by which these ideas about custom, based on normative commitments most scholars no longer share, slipped into modern scholarship. She traces this to the work of Fritz Kern who, in the early twentieth century, sanitized these nineteenth-century ideas about custom by taking them out of the nationalist and colonialist discourses of the nineteenth century. He reframed discourses about medieval custom in terms that historians of later generations could accept and, in the process, created what Kuskowski calls a “neutralized primitive custom” (P. 152). These ideas were then taken up, in this new form, in seminal works of the twentieth century, such as Michael Clanchy’s Remembering the Past and the Good, Old Law.
The Time of Custom challenges the way we think about customary law as a category. Customary law need not be tradition-bound and backward-looking. But the article also makes a broader point about how we think about the Middle Ages. People still view the Middle Ages as a period when people were backward-looking and tradition-bound. Kuskowski demonstrates that even sophisticated scholars of the Middle Ages, who deplore these kinds of characterizations of the period, still, at times, unconsciously reproduce them in their work. Kuskowski’s work on custom is an important corrective. By showing that custom, a quintessential example of the traditional and backward-looking, could be associated with innovation and rapid change, Kuskowski is challenging some of the most fundamental stereotypes about the Middle Ages as a period. Medieval people thought about themselves as updating, renewing, and even striking out in new directions.
Nov 4, 2024 Christopher W. Schmidt
In The Taft Court: Making Law for a Divided Nation, 1921–1930, the latest addition to the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Robert Post offers a masterclass of legal analysis and historical scholarship. Admirers of Post’s scholarship will find in this book yet more evidence of his rare skill for illuminating the nuances of legal doctrine and identifying the social forces and ideas that explain and animate that doctrine. The Taft Court also gives Post an opportunity to demonstrate his equally admirable skill at synthesizing massive amounts of research material into an engaging and compelling historical narrative—no small an achievement for a volume that comes in at over 1500 pages.
How does he pull off the trick of making a lengthy, serious work of scholarship an inviting experience for the reader? It helps that Post writes so clearly, even when navigating complex areas of the law. He also leans into the biographies of the members of the Taft Court, crafting subtle, sensitive portraits of not only the famous justices, such as Holmes, William Howard Taft, and Louis Brandeis, but also the infamous (the irascible racist James McReynolds) and those who have been largely forgotten. No one is better than Post at the difficult task of connecting biography and jurisprudence.
Perhaps most importantly, Post makes creative and effective choices about organizing and presenting his material. He puts most of his discussion of scholarly debates and historiography in endnotes, allowing him to keep his prose accessible and to center the reader’s attention on the words and actions of the historical actors. The overall structure of the volume is nicely attuned to the reader’s convenience. After beginning with chapters introducing each of the Taft Court justices, Post organizes the remainder of the volume topically. Early chapters explore Taft’s contributions to modernizing the Supreme Court and the institutional character of the Court in this period. Post then breaks down the Taft Court’s cases into four broad categories: social and economic legislation; prohibition; federalism; and labor and race.
The completist will find in each of the forty-three chapters countless insights built upon exhaustive historical research. But the volume is also thoroughly rewarding for more time-pressed readers who chooses to focus their attention on particular personalities and topics.
The central theme of The Taft Court—and a central theme of Post’s scholarship across the years—is that to understand the formation and development of judicial doctrine one must pay carefully attention to cultural phenomena and political developments outside the courts. The Taft Court’s jurisprudence, Post explains, was “fashioned in continuous dialogue with the popular preconceptions of its era” (P. xxv). This fact helps explain the distinctive challenges the Court faced. It’s also why the Taft Court’s work has been misunderstood, Post argues.
For the 1920s was a period of “intense ambivalence.” It was a time of technological innovation, with radio and cars transforming American life. It was a time of artistic experimentation. It was also a time of Prohibition, harsh nativism, and resurgent religious fundamentalism. The Taft Court, Post explains, was “charged with the thankless task of constructing law for a society that was deeply confused about what it wanted” (P. xxvi).
Post illuminates these crosscurrents of culture and law by organizing the justices of the Taft Court into adherents of four “narratives” about the meaning of constitutional law. One narrative understood custom as the master principle of constitutional law. Under this approach, the task of the judge was to translate historically durable practices and commitments into constitutional principle and then apply these principles as constraints on novel government policy. As the exemplar of this approach, Post presents McReynolds, the most uncompromising of the Court’s conservatives.
Chief Justice Taft often allied with this group, but he arrived at his judicial conservatism through a vision of constitutional law as dedicated to economic prosperity. This approach elevated property rights and freedom to contract and cast a skeptical eye on regulatory policy that might constrain economic growth and investment.
Holmes, by contrast, eschewed any judicial role in discerning fundamental constitutional principles. Under this positivist approach, the primary role of the judge in constitutional cases was to defer to the laws passed by majoritarian institutions. Only in limited and extraordinary circumstances would the courts impose constitutional limitations on the will of the people.
Holmes famously stood alongside Justice Brandeis in many of the most significant constitutional disputes of the Taft Court era, but the two men brought sharply different visions of the purpose of constitutional law. In contrast to Holmes’ skepticism toward judicially protected constitutional principles, Brandeis believed the essential task of constitutional law was the promotion and protection of democracy. “Our objective,” Brandeis wrote, “is the making of men and women who shall be free, self-respecting members of a democracy” (P. 313). For Brandeis, Post writes, judicial deference derived from a “moral respect for democracy.” Post’s portrait of Holmes is sensitive and thoughtful. His portrait of Brandeis as a democratic visionary is inspiring.
As the Taft Court struggled to respond to the ambivalent historical moment in which it operated, proponents of these four narratives came together and pushed apart, leaving behind a constitutional legacy that modern scholars have too often mischaracterized or underestimated or simply forgotten. Post offers a convincing case that, taken as a whole, the Taft Court did an admirable job at this transitional moment—recognizing that old constitutional veracities were no longer tenable, but also attempting to control the pace and scope of the change that was happening. In his thoughtful and thought-provoking portrait of a Court stuck between two constitutional worlds, Post has produced a masterpiece of legal historical scholarship.
Sep 30, 2024 Allison Brownell Tirres
Dov Fox & Mary Ziegler,
The Lost History of “History and Tradition,
” 98
S. Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (May 5, 2024).
With its decision in Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overruled five decades of precedent guaranteeing a constitutional right to abortion, on the basis that such right was not supported by “history and tradition.” The Court has utilized this same rationale in other recent high-profile, and highly controversial, rulings. Conservatives on the Court claim that the lens of “history and tradition” is neutral, objective, and apolitical, unlike other modes of constitutional interpretation.
Many constitutional law scholars and legal historians are skeptical, to put it mildly, of the “history and tradition” approach. They argue that this method is just as susceptible to subjectivity and political manipulation. After all, whose history will one take into account, and what traditions? When does the historical query begin, and when does it end? The Court’s conservative turn has spurred a proliferation of scholarly work that challenges or seeks to reframe the judiciary’s use of history in constitutional interpretation. In a thought-provoking addition to this canon, Dov Fox and Mary Ziegler ask us to consider the history of the “history and tradition” test itself, to fascinating result. In The Lost History of “History and Tradition,” they demonstrate how the Court’s recent formulation of the test is just that: an intentional reframing of an interpretive tool that, in various forms, has been used by courts at least since the late nineteenth century.
The article’s primary historical contribution is to show that the Roberts Court iteration of “history and tradition,” which conservative justices praise as neutral, apolitical, and objective, is itself the product of social movement engineering aimed at finding common ground – and thus achieving political results – among conservative legal groups in the 1980s. This current formulation, which the authors call “entrenched traditionalism,” is actually a departure from a much longer-standing test that preceded it. That version, which the authors refer to as “evolving traditionalism,” is typified by Justice John Marshall Harlan’s dissent in Poe v. Ullman (1961), in which Harlan insisted that “tradition” is understood to be “a living thing.” Such a notion runs counter to the Court’s current framing of “history and tradition,” yet is truer to what those concepts have meant for most of the twentieth century.
Fox and Ziegler date the origins of the evolving tradition test to the 1920s and 1930s, when courts began to grapple in earnest with the question of whether the Bill of Rights applied to state and local governments. The characterization and use of history and tradition in these incorporation cases varied, but a common theme emerged: tradition could change over time, and judges did not have to limit themselves to viewing traditions as frozen at the time of ratification. In other words, they should look not just backward to the time of ratification (of either the Constitution or subsequent amendments), but also forward for evidence of shifting social practices post-ratification.
This understanding of the evolving nature of tradition became even more accepted in the 1960s and 1970s in cases pertaining to unenumerated rights, such as those dealing with contraception, abortion, and family privacy. The authors show how both proponents and opponents of reproductive rights framed their arguments using the evolving tradition lens. Fetal rights advocates, for example, argued (ultimately unpersuasively) that courts should take into account a growing recognition of the rights of the unborn, while abortion rights advocates made a similar argument for shifting social practices and widespread social acceptance around the termination of pregnancy.
In the early 1980s, however, a conservative legal movement began to coalesce around a much more rigid definition of the “history and tradition” test. Drawing on original archival research, the authors show how legal groups, including the Federalist Society, the Rutherford Institute, and the Alliance Defending Freedom, were united in certain aims but conflicted in others. While the Federalist Society turned to textualism and originalism as preferred interpretative tools, these methods did not necessarily achieve what conservative Christian lawyers sought, which was an approach that would prioritize Christian dogma and heritage in readings of the Constitution. It was also hard to see how an argument for fetal personhood – one of these groups’ primary aims – would be supported by either textualism or originalism.
Enter “history and tradition,” but of a particularly rigid variety. Members of these diverse conservative groups found that a “history and tradition” test that was restricted to the ratification era, and no further, could bridge divides within the movement. As the authors note, this turn was “a way to reiterate shared commitments to judicial restraint while codifying deeply held beliefs and values on subjects ranging from religious freedom to abortion.” (P. 46.)
In its most recent cases, the Court’s conservative majority has relied on this entrenched tradition test, one that sets a fixed ending point at ratification itself and looks no further. This helps to explain why the Court in Dobbs limits the query to “history and tradition” at the time of ratification of the Fourteenth Amendment, ignoring social practices and legal developments that followed in the century and a half after, including fifty years of accepted constitutional precedent.
Conservatives on the Court have also set out their own story of the test’s origins. In his majority opinion in Dobbs, Justice Samuel Alito portrays this version of “history and tradition” as a corrective to judicial overreach, and he dates its emergence to the 1997 assisted-suicide decision in Washington v. Glucksburg. Fox and Ziegler’s research provides an important rejoinder to this claim, demonstrating that the Court’s reformulation of the test was born instead out of years of social movement conflict. As they show, it was the product of an intentional effort by conservative lawyers and activists to achieve specific political ends by altering the lens of interpretation, rather than – as Alito and others claim – the product of a neutral, apolitical quest for objectivity. As they note, pinning the test’s origin to Glucksberg and its progeny may be a compelling way to tell the story, but it is not true.
In an intriguing final section, Fox and Ziegler posit that the evolving tradition model is not only more established in our constitutional history but also has the constructive potential to bridge the divide between the two opposite poles of constitutional interpretation today: originalism and living constitutionalism. They show how evolving traditionalism can avoid some of the risks of either being too rigid (originalism) or too loose (living constitutionalism) in approaching constitutional rights. They further consider how the evolving and entrenched approaches would yield different outcomes if applied to modern-day contested rights, including aid-in-dying, gun rights, fetal rights, and gender-affirming care. This thought experiment shows that evolving traditionalism has much to offer as an interpretive tool. The article thus provides important contributions both for the history of constitutional jurisprudence and for contemporary constitutional analysis.
Sep 13, 2024 Sara Mayeux
Frequently I drink iced coffee at a local shop in my Tennessee neighborhood. I could pay with cash, but most often I hand over a credit card issued by a New York corporation (though the sign-up paperwork came from Utah), and later I pay the bill using funds in my checking account at a California bank (which funds I can also access with a Visa-branded debit card, which I could alternatively have used to buy the coffee). In the five minutes it takes to buy a drink in Nashville, both I and the vendor participate a web of financial transactions and legal agreements with banks, corporations, and sub-entities headquartered around the country, both of us potentially paying interest and fees at each node along the way.
How did routine purchases become so complicated? As meticulously chronicled in Plastic Capitalism, the way I pay in 2024 required decades of technological, legal, and policy change to become part of everyday life. The book is not merely a narration of the rise of credit cards, however, although that would be fascinating enough. Blending legal, political, and business history, Sean H. Vanatta uses the card industry as a case study in the eclipse of New Deal liberalism and the erosion of what Vanatta calls “the place-based regulatory order” (P. 292).
Political historians have written extensively about how New Deal-style economic regulation gave way to neoliberalism and deregulation. Plastic Capitalism adds to that literature by providing an especially granular look at the role of legal history in the shift, and by attending to state-level legislative debates and court cases in addition to Congress and federal agencies. This approach presents deregulation as a longer, more gradual and iterative process than is sometimes implied by timelines of congressional enactments.
Plastic Capitalism begins with an overview of the New Deal regulatory framework. That framework was characterized by limits on banking—geographic restrictions, industry silos, and price caps—as well as by a structural arrangement that Vanatta terms “financial federalism.” Depression-era reforms introduced federal deposit insurance and other forms of government backing but nevertheless “preserved the existing structure of primarily small, local banks” (P. 15). Banks remained prohibited from branching across state lines, and the states retained an important regulatory role, particularly with regard to interest rates on loans.
In subsequent chapters, Plastic Capitalism reconstructs how banks innovated new products and legal arguments to pursue profits within (and sometimes around) those regulatory limits. The reader learns about department store credit, travel cards, how metal charge plates became plastic cards, and the buildout of payment card interchange networks, with colorful anecdotes along the way—but also clear explanations of exactly how different forms of consumer lending were structured legally, financially, and even materially.
Interchange networks proved pivotal in transforming credit from localized service into free-floating commodity. Banks began administering small-scale charge account programs within their communities mainly as a service for local retailers. By the 1960s, some bankers had begun to reimagine the charge account as a standalone profitable product that could be marketed directly to consumers, offering revolving credit at relatively high interest rates. Still, even the pioneering BankAmericard, launched in 1958, was initially a regional California offering; Bank of America advertised “statewide shopping convenience” (P. 84, emphasis in original).
Then, Bank of America began licensing its card technology to banks in other states and developing what became a national and ultimately international payment network. BankAmericard was eventually rebranded as Visa (and a rival, Master Charge, became MasterCard). Formally, merchants were recruited, and consumers were issued cards by local banks. But consumers increasingly “associated their credit with the network,” and experienced cards as a deracinated payment technology rather than a loan from a neighborhood banker, especially as banks adopted the practice of mass-mailing unsolicited cards to prospective customers (P. 107).
Credit cards raised novel legal questions. At the time, most states imposed usury limits on money loans; now, attorneys had to litigate whether those laws already applied to credit cards, and legislators debated whether states should specifically regulate credit card interest rates. Given the new varieties of fraud facilitated by cards, policymakers confronted where to locate liability for unauthorized purchases, and whether federal or state prosecutors could handle a potential new tide of cases. Bankers, regulators, and consumer advocates went back and forth over whether to prioritize widespread access to credit (given the history of racial and gender-based exclusion from lending markets) or consumer protection against predatory lending.
In Vanatta’s telling, the first wave of regulatory responses left much of the New Deal order in place, even while accommodating credit cards to that order. By the mid-1970s, most states had capped credit card interest at around 18 percent, while Congress had imposed disclosure requirements and banned unsolicited mailings. These and other consumer protection measures “legitimized the bank card industry by regulating it, in effect binding credit cards within postwar liberalism’s regime of (relatively) low-cost, safe consumer credit” (P. 157).
But the story would not end there: “Bankers … had gotten into the card business to break free of the New Deal order’s onerous restrictions,” and “some would continue to seek and seize opportunities to innovate around the rules” (P. 157). In the New Deal order’s final demise, a key development was the Supreme Court’s 1978 decision in Marquette National Bank of Minneapolis v. First of Omaha Service Corporation, to which Vanatta devotes an illuminating chapter. In effect, Marquette decided which state’s usury laws applied to a credit card: the state where the card issuer was based, or the state where the cardholder lived? Under Nebraska law, the First National Bank of Omaha could charge 18 percent interest on credit cards. But many cardholders lived in Minnesota, which capped interest at 12 percent. The Court held unanimously that the bank was “located” for purposes of banking law in Nebraska, and therefore Nebraska’s more permissive limit reigned.
Citibank took quick advantage of Marquette, announcing in 1980 “that it would relocate its card operation from New York to South Dakota, a state with no applicable usury laws” (P. 265). A deregulatory cascade ensued in statehouses around the country. By the 1980s, almost every state had “either loosened or lifted [its] usury laws” (P. 280), and card issuers gravitated to states that had loosened their usury laws the most. In this new iteration of financial federalism, states still mattered for banking regulation, but in a different way: “By 2003 almost three-quarters of credit card loans in the United States originated from states, including South Dakota and Delaware, containing just 4 percent of the country’s population. Importantly, Citibank’s relocation did not make state interest rate regulation irrelevant; rather, it made the interest rate regulation of a few states national policy” (P. 290).
Another chronicler of this history might have presented a triumphant tale of inventive capitalists upending outdated regulatory structures; Vanatta instead worries about the consequences for democratic control over economic life. Some would argue that overly restrictive usury limits disincentivize banks from extending credit at all. Vanatta acknowledges that state-driven deregulation “opened credit markets and made credit available to underserved consumers,” but he argues that the tradeoffs between “unrestrained markets and consumer protection” are subject to political debate—a debate in which bankers now held the upper hand (P. 280). Indeed, much of Plastic Capitalism is devoted to recounting how bankers, policymakers, and consumers engaged in just that debate over the decades.
While “never perfectly democratic,” Vanatta concludes, the New Deal order “compelled bankers to negotiate the price and terms of credit with local stakeholders”; once banks escaped geography, “consumers lost their grip on the regulatory levers” (P. 297). Beyond its specific insights about credit cards, then, Plastic Capitalism offers much fodder for reflection about the modern disjuncture between the structure of political representation, which has remained rooted in geography, and the structure of economic and social life, in which even a $5 visit to a local coffee shop might involve contracting with entities that have no real geographic location at all, or whose geographic locations are something of a legal fiction.
Jun 27, 2024 Reuel Schiller
Here’s a narrative jewel from Margot Canaday’s stunning new book Queer Career: Sexuality and Work in Modern America: Canaday is interviewing a queer woman who drove a cab in Buffalo during the years following World War II. Apparently, taxi driving was a common profession for lesbians at the time. In fact, the cabbie believed that half the drivers in the company were queer. “The owner liked to hire lesbians—it was a transient job, but lesbians tended to stay. ‘Got any friends?’ he would ask. ‘Send them in.’” It was the kind of job, the driver told Canaday, that allowed her to live life the way she wanted. The informal nature of the work gave her the flexibility to socialize in gay spaces and to present herself authentically without fear of reprisal at work. During her years as a driver “she wore pants, a shirt, and a binder to work.” (P. 83.)
If you’re anything like me—a reader familiar with the standard narrative of the development of postwar liberalism—this story is disorienting. Driving a cab in postwar Buffalo was a congenial profession for lesbians? So congenial that half the employees were queer? So congenial that the boss actively tried to recruit lesbian drivers? So congenial that drivers felt comfortable being out at work? Wasn’t this the era of the Lavender Scare, when rampant homophobia and government persecution drove queer Americans out of the workforce and deep into the closet? This story is just one of many convincing, counterintuitive pieces of evidence that substantiate Canaday’s central claim: When you look at the world of “queer careers” through the lens of the Lavender Scare, you don’t see the employment experiences of most gay and lesbian workers. In fact, when you closely examine these experiences, as Canaday has done with an unprecedented degree of detail, you see a very different story. You see that for many gay and lesbian workers, the workplace became less hospitable as the twentieth century wore on.
By demonstrating this fact, Canaday is not painting some sort of rose-tinted image of a sexually egalitarian past. Far from it. In fact, the relationship between the social marginalization of queer people and the nature of their work lives is the fundamental story that Queer Career tells. The book traces the path that gay and lesbian workers took through the workplace in the second half of the twentieth century, showing the dramatic changes in the nature of their employment experiences. Canaday begins with an examination of a bifurcated world of “Gay Labor” in the years immediately after World War Two. There were “straight jobs”—professional, high-status, white-collar work—that were available to (mostly male) queer employees if they were willing to enter an implicit bargain with their employers. Employees would pretend to not be gay, and their employers would pretend to not notice that they were. Thus, contrary to the received historical wisdom, Canaday shows that gay and lesbian employees did not need to descend deep into the closet to get some of the financial and status benefits of America’s postwar economic boom. They simply had to participate in the demeaning pretense of “don’t ask/don’t tell.”
It’s obvious why many queer workers would embrace this bargain, but what was in it for the employers? Canaday’s answer to this question is compelling. America’s employers were not secret homophiles. Instead, they recognized that gay and lesbian employees “were valuable because they were vulnerable.” (P. 68.) They were workers without legal protections, living in a world of fear, where public employment was often unavailable and where they might be fired for no reason other than their choice of romantic companions. The law thus made the employment lives of queer workers especially precarious. In the years following the Second World War, many employers were happy to take advantage of that precarity. Gay and lesbian employees would work extra hours, take crap assignments, not complain if they were paid less, and not make a fuss if they were dismissed. Gay men did not have to be paid a family wage. Lesbians would not marry, become pregnant, and drop out of the workplace at a time that was inconvenient to their employers. In a postwar work world that was characterized by the expense and rigidity of the family wage and the collective bargaining agreement, queer employees were a “pressure-release valve” that allowed employers to reduce costs and increase efficiency. (P. 63.)
Of course, not all workers wished to take the benefits of this bargain. After all, it was premised on repression and exploitation: hiding your intimate relationships, comporting your behavior and appearance to straight norms, and accepting less pay for more work. For these workers, there existed a second world of work: “queer jobs.” Some, like that of the cab driver, were low-status, low-pay positions in industrial or peripheral labor markets. Others were in professions where, even in buttoned-up postwar America, “queerness” was part of the “package and brand”: hairdressers, cruise ship employees, and department store salesmen, for example. (P. 83.) Other jobs—in libraries, the garment industry, or the performing arts—were less queer-branded but had reputations as queer occupations. Finally, there were jobs within the gay demimonde: the employees of gay bars, drag performers, and sex workers. What this diverse set of jobs had in common was that they allowed workers to opt out of the bargain that the straight workplace required. These jobs might pay less, provide few opportunities for professional advancement, and have low status, but they nonetheless allowed gay workers to be more open with their sexuality. They were “pockets of relative safety,” that allowed workers to express their identity. (P. 100.)
Having described this world of queer labor, Canaday turns her attention to how it changed in the era of gay liberation, the period from the late 1960s to the early 1980s, bookended by the emancipatory impulses of Stonewall and the beginning of the AIDS crisis. She details the hard fought but largely unsuccessful effort to forge legal employment protections for gay and lesbian workers analogous to the prohibitions of race and sex discrimination embodied in Title VII of the Civil Rights Act of 1964. These legal battles occurred as the gay liberation movement pursued nonlegal strategies to empower gay and lesbian Americans. Ironically, the most prominent of these strategies—abandoning the closet—had the effect of making work more precarious for many queer workers. While the postwar bargain did not require a complete retreat into the closet, it did require a kind of discretion that was contrary to the liberationist ethos. Consequently, as more workers came out, employers abandoned the bargain. Indeed, even for workers who wished to keep to its terms, the rise of gay liberation increased the precariousness of their jobs. Employers worried about hiring gay and lesbian employees lest they accidentally employ someone who might adopt a liberationist posture, abandoning the straight norms of appearance and behavior that the bargain required. Thus, employers increasingly viewed any sign of possible queerness—an odd haircut, an unmarried thirty-five-year old, too many phone calls at work from same-sex friends—as a reason to fire a worker, or not hire them in the first place. Like the civil rights movements for people of color and straight women, gay liberation generated “a revolution in consciousness,” demonstrated by a public pride in one’s identity and demands for equal treatment. Unlike those other liberation struggles, however, gay liberation had no parallel “revolution in law.” (P. 149.) Lesbian and gay Americans had to assert their rights in the workplace without legal protections.
The AIDS epidemic increased the cost of this lack of legal protection dramatically. AIDS destroyed what remained of the postwar bargain. Panicked fears of contagion and concerns about the costs of employing queer workers—at risk of falling ill and dying—led to an increase in homophobia and discrimination in the workplace. While Canaday demonstrates, in some of Queer Career’s most moving passages, that the epidemic created deeply meaningful work for members of the community in healthcare and legal advocacy, she also shows how it drove many workers back into the closet. At height of the epidemic, a gay employee’s runny nose or a day off to care for a sick partner could result in dismissal. In the absence of meaningful anti-discrimination laws, the closet became the only option for many queer workers.
The lack of a “revolution in law” to protect the rights of gay and lesbian employees had another effect. If the government was not going to protect those rights, perhaps turning to private actors—the employers themselves—would be more effective. In Canaday’s final chapter, she demonstrates that this was, in fact, the choice that many queer workers made. By the end of the twentieth century, it was a select group of private employers, acting in response to pressures from their gay and lesbian employees, that provided a measure of dignity, recognition, and meaningful employment benefits to queer workers. Starting in the technology sector and in businesses in more diverse cities, employers began to support their queer employees. They slowly and haltingly recognized queer employee groups, celebrated Pride Week, and targeted gay consumers. Eventually, they put their money whether their mouths were by providing benefits to their employees’ domestic partners. Canaday shows that the recognition of these benefits was not easily achieved noblesse oblige by forward thinking employers. Nor was it the cooptation of the gay rights movement by cynical corporations. Instead, it was the result of grassroots organizing by workers who were willing to take the substantial risk of engaging in queer advocacy despite the lack of any legal protections. It also required connecting gay liberation to fin-de-siecle political economy. By supporting gay rights, the advocates argued, a business could retain its employees, find new markets, and reap the economic benefits of a diverse workforce. Canaday makes the irony palpable. For gays and lesbians in the United States, the most effective way to gain rights at work was to “disassociate” their movement from rights and law altogether. Supporting your queer employees “was about business efficiency and becoming an employer of choice.” It was about “being best equipped to tap into the resources of an increasingly diverse workforce.” (P. 255.)
The analytic pay-off of Canaday’s narrative is enormous. Her discovery of the postwar bargain and its decline should transform the narrative of postwar liberalism. Queer Career also speaks to debates about the nature of the gay rights movement: its alleged domination by whiteness and affluence and its alleged subservience to consumer capitalism. Both claims are ones that Canaday’s narrative convincingly refutes. For legal historians, her descriptions of the campaigns to expand civil rights legislation, combat governmental employment discrimination, and use existing civil rights statutes to curb discrimination against HIV-positive individuals are presented with a degree of detail missing from the existing literature. Even more significant is the way Canaday uses these stories to explain the mechanisms of queer employment precarity and its connection to postwar capitalism. The impact of these mechanisms, as she elegantly points out, should inform contemporary thinking about all workers. After all, Queer Career convincingly demonstrates that the characteristics of queer careers since 1945—profound imbalances of bargaining power, episodic gig work, invasive monitoring, employer demands for flexibility—sound an awful lot like the neoliberal workplace that most workers, gay and straight, inhabit today.
As powerful as Canaday’s arguments are, the triumph of this book is in the individual stories it tells. Queer Career is, first and foremost, a book is about the lives of working people. It is a book brimming with workers, some found in traditional documentary sources, and others made visible by the more than 150 interviews that Canaday conducted. At its center are joyous, heartbreaking, funny, cruel, and fundamentally human stories. We learn about Frank Kameny, the astronomer who used “the politics of annoyance” (P. 114) to challenge the federal government’s antigay hiring practices; about Ginny Berson, a founder of the Olivia Records Collective, a record company that catalogued its recordings with numbers prefaced by “LF,” which stood for “lesbian feminist”; and about Cliff Morrison, the clinical coordinator of Ward 5B, San Francisco General Hospital pathbreaking in-patient AIDS unit. We also meet hundreds of anonymous clerk-typists, computers scientists, bartenders, and project managers for whom work was a central component of their identity. Lost, but now found by Canaday, she has illuminated their lives to show how the history of queer work is a “history of vulnerability,” but also a history of how work of all kinds dignifies and gives meaning to life. (P. 280.)
