Mar 2, 2023 Angela Fernandez
Sierra Club v. Morton is a seminal 1972 U.S. Supreme Court case on standing, the essential procedural question of who has a legal right to initiate a lawsuit based on a plaintiff’s alleged injury traceable to a defendant’s unlawful conduct. Daniel Selmi’s new book provides a deep dive into the history and context of this famous case, showing that it was about much more than the majority decision’s denial of the Sierra Club’s standing. And it was not, as some have claimed, launched as a test case to establish standing for environmental groups or the entities themselves, the possibility William O. Douglas went into in his famous dissent dear to the hearts of those interested in the Rights of Nature.
The story begins in the mid-1960s with a decision by the Forest Service to allow the Disney Company to develop a ski resort in the Mineral King area of California’s Sierra Nevada mountains. The Sierra Club was initially supportive of the project. However, they turned against it, as younger members of the Board came to believe they should be protecting wilderness rather than facilitating its use and development, even for skiing, an important out-of-doors activity for Club members. Selmi emphasizes that the Club changed tack at a time when their odds of winning were slim to nil. They (surprisingly) won at trial before a judge who barely registered the standing question (P. 135) and then lost at the Supreme Court. Yet, the war was ultimately won when longstanding transportation issues (for example, expanding an existing road versus building a cog railway) could not be resolved, and political support for the project fell apart. Then, in 1978, Congress decided to make Mineral King part of Sequoia National Park.
Among the surprising things I learned in the book was the military context of support for skiing in the United States. “Old guard” members of the club, most notably its Executive Director David Brower, had, along with Wilfred “Slim” Davis of the Forestry Department, been members of the something called the 10th Mountain Division during World War II. (Pp. 15, 21.) This division of the United States Army trained men for mountain warfare and included expert skiers. (Pp. 8-9.) These men carried their wartime experience over into civilian enthusiasm for the sport and its post-war development, effectively establishing the ski industry. Selmi writes that members scattered after the war but kept in touch. (P. 9.)
The coziness created by such connections became important because one of the major issues in the proposed Mineral King project was the trust the Forest Service placed in its partner in the project, the Disney corporation, and its failure to place any limits on Disney’s development plans. (P. 89.) Selmi draws on a brochure put out by the Disney Company in 1966, signed by the man himself, who died in December of that year, promising that the area’s natural beauty would be preserved but which also stated, “I guess you might say that it won’t ever be finished.” (P. 62.) This idea was that the resort would keep growing and growing, Disney would never say what the limit was, and the Forest Service was just fine with that. (P. 181.) This blank check created a fundamental problem for the credibility of Disney’s promise to be able to protect the area (land, trees, animals). As Selmi puts it, “[a] large development would inevitably change Mineral King[…]Disney and the Forest Service never directly confronted that reality.” (P. 265.)
The unfettered and unstructured nature of Disney’s proposal and the discretion used to approve it also explains why the defendant in the case was Rogers C.B. Morton, the newly appointed Secretary of the Interior in 1971. (P. 168.) The lawsuit was against public agencies in charge of public lands making important decisions about those lands without public input or regulatory requirements. Hence Selmi’s decision to frame the case as a product of distrust about deferring to government expertise, “a development stemming in part from dissatisfaction with management of the Vietnam War.” (P. 260.)
Disney, for its part, kept its distance from the lawsuit because it wanted to create the impression that “if a legal problem existed, it originated with the Forest Service. Disney was a bystander, not an instigator of a legal violation.” (P. 140.) There were also concerns about actively opposing the Sierra Club, a conservation group with a lineage that went back to John Muir. (P. 130.) Disney himself was an honorary lifetime member of the Club, legendary for his many ground-breaking nature films. (P. 151.)
For the Sierra Club’s part, it left Disney out of the lawsuit, given the high regard in which Walt Disney and the company were held. As one Sierra Club member put it, “‘[t]o sue Disney…would be like suing motherhood, the Flag, and the Boy Scouts all at once’” (P. 121.) Also, as a large successful company, they had a lot of resources, which could be used to hire many lawyers who would make it more difficult (and expensive) to fight the case and win. (P. 122.)
Despite the fact that Selmi seeks to de-center standing in his history of the case, or at least destabilize the understanding that standing was what Sierra Club v. Morton was always meant to be about, he presents an excellent and thorough discussion of the issue. Selmi explains that the Sierra Club insisted on its general interest in a case that would impact the environment of concern to its members rather than Club members’ actual use of the area, which the Supreme Court indicated it would have accepted. As Justice White reportedly put it: “Why didn’t the Sierra Club have one goddamn member walk through the park and then there would have been standing to sue.” (P. 204.)
However, the Club’s “loss” did nonetheless help establish that an aesthetic non-economic interest (specifically an environmental harm) could ground a lawsuit. (P. 199.) In subsequent lawsuits, relatively few environmental plaintiffs were denied standing. (P. 258.) Sierra Club v. Morton provided clear instruction: establish use and an individual harm, and the courtroom door would be open. Sierra Club’s lawyer Lee Selna’s resistance to “the use theory” comes across as stubborn and slightly irrational. However, Selmi points out that there was also a logic to it, given the fact that users, for example, fishers, campers, guides, would be likely to support development. (P. 206.) Users then, like the Forest Service itself, could not be trusted to keep the ecological interests of the area at the forefront. Hence the dissent’s suggestion that the case should be framed as Mineral King v. Morton, even if the Sierra Club was appointed or otherwise empowered to speak for Mineral King.
In trying to answer the question, who really speaks for Mineral King Valley, the Sierra Club asked: “Is there anybody who really believes that if Mineral King could answer, it would say: “Walt Disney Productions, Inc.’” (P. 226.) The answer to this question, which might have been yes from a trusting public in 1955 or 1965, became a hard no by the 1970s. In this way, Selmi’s book situates the rise of U.S. environmental law in the problem of public agency discretion run amuck in the face of effective lobbying by private interests. While establishing that the non-economic or aesthetic interest of the Sierra Club was one that could be legally vindicated, it was still the interest (general or use-based) of humans; not the non or other-than-human interests of plants, trees, nonhuman animals themselves. This dogged anthropocentrism must be one of the most important legacies of the case to the field of environmental law, which it helped to establish.
Jan 31, 2023 Mary Ziegler
In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Brett Kavanaugh expressed hope that reversing Roe v. Wade would help deescalate the national abortion conflict. Instead, the months following the decision have opened a new front in the war over reproduction, one in which states have not only criminalized abortion but also explored unprecedented and possibly unconstitutional methods of enforcing criminal laws. Alicia Gutierrez-Romine’s timely, meticulous study of the world of criminal abortion in California offers a powerful glimpse of where we might be heading next. Gutierrez-Romine carefully documents familiar inequities facing low-income and primarily nonwhite patients caught up in criminal investigations, but her book adds to our understanding of the workings of criminal abortion by focusing on a wider cast of characters, especially those facing prosecution for performing or aiding and abetting abortion and providers, including doctors and midwives of color, whose stories are less well known.
Historians such as Leslie Reagan have established that after states criminalized pre-quickening abortion in the later nineteenth century, criminal prosecutions were the exception rather than the rule, at least before the 1940s, and most often took place when a pregnant patient died to medical negligence. Gutierrez-Romine adds nuance to this narrative, exploring the different fates of abortion providers of different races, sexes, and professional statuses. At least at times, status helped to shield white male doctors from the harshest effects of criminal abortion laws—and allowed them to effectively advocate for reform when they did face prosecution. By contrast, physicians of color and midwives faced more scrutiny from the press, from jurors, and from prosecutors. Gutierrez-Romine paints a compelling picture of a system of unequal justice that may closely resemble one emerging in the post-Roe era.
Gutierrez-Romine begins by making sense of a familiar riddle: how abortion came to be broadly criminalized and yet rarely prosecuted. Much as physicians in the American Medical Association successfully convinced legislators to bar abortion in the late nineteenth century, abortions remained invisible when safely performed. (Pp. 41-42.) As Gutierrez-Romine argues, the fact that most prosecutions involved the death of a patient transformed legal and cultural understandings of the crime of abortion.
The heart of her story is the world of criminal abortion (and abortion prosecutions) in California. The justice that met well-known doctors accused of performing abortions in cities Los Angeles, Gutierrez-Romine shows, involved more shame than concrete consequences. Prominent, white physicians in her story faced prosecution, won acquittals, temporarily lost their medical licenses but then soon found their way back into medicine. The courts enlisted these physicians in a form of mythmaking about abortion: women on their death beds were forced to reveal the names of the men who fathered their children and then presented as victims of wayward seducers. This narrative stood in stark contrast with reality: 80 percent of those who died due to abortions in Los Angeles were married.
Defendants’ experience in the world of criminal abortion varied significantly by race. Gutierrez-Romine documents how male physicians of color mobilized their status to marshal significant support from within their own communities, presenting themselves as “pillars of respectability” (P. 88) who modeled respectability and success in a world of profound segregation. These physicians won the support of the Black press and community organizations of color but still fared poorly in court, often being convicted of serious charges and remaining in prison for years. Gutierrez-Romine shows that female defendants, too, faced harsher consequences, many of them framed as “the mid-wife type,” a woman without the expertise, status, or professional support of male physicians.
In Gutierrez-Romine’s telling, the late 1930s and 1940s proved to be a turning point in California, one driven at least as much by the opportunities available to ambitious prosecutors than by the rise of pronatalism or shifting ideas about “rackets” and organized crime. She shows that key prosecutions can serve as a kind of trial balloon: prosecutors successfully prosecuted the members of the Pacific Coast Abortion Ring “in the absence of patient deaths and complications.” (P. 151.) The easier prosecutions became, the more arrests and prosecutions ensued.
The next chapter in Gutierrez-Romine’s story will be familiar to those following the story of post-Dobbs developments: networks of criminal surveillance pushed those seeking abortion to travel out of the state and often the country, as many crossed the border into Mexico. She mines state files on the revocation of physician licenses, state coroner’s records, city council files, and grand jury records to paint a picture of criminal punishment of abortion in the state in the aftermath of the Pacific Coast Abortion Ring. Travel for abortion again led prosecutors and reporters alike to thread narratives of race into their understandings of abortion.
Tijuana abortions play a contradictory role in the history Gutierrez-Romine narrates. On the one hand, these procedures were broadly unregulated, leading to an influx of patients in California hospitals. This surge in patients encouraged hospitals to develop therapeutic abortion committees—and to suggest that some abortions were more legitimate than others. By demonizing Tijuana procedures as unsafe, supporters of limited reform presented the mostly white physicians practicing in hospitals as more legitimate—and as members of a medical community rather than criminal actors. Abortion opponents condemned what they saw as “Tijuana abortions,” framed as a distinctly un-American phenomenon. In reality, travel for abortion also involved physicians from California traveling to Mexico to perform procedures there. At first, complicated questions of choice of law made it hard to win prosecutions: even if physicians arguably conspired in California, jurors and judges alike were unsure of the state’s power to regulate out-of-state conduct.
Understanding Gutierrez-Romine’s history is urgent because she makes clear that there was nothing inevitable about the transition from cross-border abortion to reform. Even as some portrayed cross-border abortion as a sign that the law was broken, California lawmakers were searching for ways to close the “loophole” that allowed these procedures to continue, expanding ideas of aiding or abetting or conspiracy to reach a broader class of defendants. Her book offers a chilling perspective on the internal logic of criminal abortion—one in which experiments with criminal charges lead to new criminal charges, one defined not only by unequal justice but also by travel and the legal transformations required to prevent it.
Jan 2, 2023 Kunal Parker
Elizabeth Popp Berman’s Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy is a very smart book that deserves a wide audience. The book explores the rise to prominence of an economic “style of reasoning” in U.S. policymaking in the post-World War II decades. Between 1950 and 1980, Popp Berman shows, this style pervaded realm after realm of policymaking, from social welfare programs to the regulation of markets to the management of the environment.
The chief institutionalizers of the economic style of reasoning were not neoliberals or libertarians (these would become truly prominent in government only after the election of Ronald Reagan in 1980). Instead, they were Democrat-appointed economists and the bureaucrats they worked with and influenced. Albeit not ideologically opposed either to social programs or to market intervention, these economists and bureaucrats insisted that social goals be met as efficiently as possible and that market solutions were generally preferable to interventionist ones. Wherever possible, they pushed cost-benefit analyses and reviews within administrative agencies, urged the dismantling of early-twentieth-century market controls, and sought to achieve ends by creating markets for entitlements rather than by imposing standards by fiat. In all this, they shared much with those further to their right.
By the time Ronald Reagan was elected president, the economic style introduced during the Kennedy and Johnson years had become thoroughly entrenched. Indeed, it had become the hegemonic approach to solving all manner of public problems, its ubiquity and self-evidence continually reinforcing each other. Reagan Republicans would employ the economic style, but the ground had been laid for them decades earlier by Democrats. Indeed, Popp Berman argues, Democrats proved far less strategic in using the economic style than Reaganites. Democrats privileged it as a method in context after context and allowed it to subsume their substantive ends. By contrast, Reaganites were more selective and often successfully subordinated it to their substantive ends.
In Popp Berman’s rendering, the economic style in the 1950s, 1960s, and 1970s was resolutely microeconomic. As she puts it: “It starts with basic microeconomic concepts, like incentives, various forms of efficiency, and externalities. It takes a distinctive approach to policy problems that includes using models to simplify, quantifying, weighing costs and benefits, and thinking at the margin.” (P. 5.) By focusing on the microeconomic at a time when Keynesian macroeconomics was at the height of its prestige, Popp Berman is doing something highly original: directing the reader’s attention away from the well-worn secondary literature on postwar macroeconomic debates toward a vital and burgeoning realm of activity, one where microeconomic styles of reasoning were actively being instantiated within administrative agencies. She is also doing something extremely valuable in showing her readers that left-of-center thinkers, rather than those to their right, were the progenitors of the economic style in American government. Thanks to Popp Berman, we get not only a sense of the complex roots of our current market-oriented approaches, but also a sense that market approaches were not—and hence need not be—the exclusive preserve of the Right. To my mind, however, Thinking Like an Economist’s real strength lies in its detailed examination of the instantiation of the economic style. This is not an account of high economic theory, but a delving into the tangled politics of regulation, agency by agency, sector by sector.
It is precisely the richness of Popp Berman’s account that enables my interrogation of the “from”/“to” account she provides. The subtitle of the book is: “How Efficiency Replaced Equality in U.S. Public Policy.” At least to me, this suggests that “equality” was temporally prior to “efficiency,” that equality oriented the U.S. public policy (at least in the areas Popp Berman focuses on) before it was displaced by efficiency.
For a book that claims to take us from equality to efficiency, however, Thinking Like an Economist devotes rather little space to exploring what equality looked like in U.S. public policy and bureaucratic practice before efficiency dislodged it. Indeed, Popp Berman herself provides evidence that a commitment to equality might not have been especially robust before the economists took over.
It is certainly true that Johnson’s Great Society programs, as Popp Berman characterizes them, were committed to some kind of equality insofar as they were premised on logics of social insurance, political participation, racial equality, and rights. (P. 126.) But this is not true of many areas Popp Berman explores, where the economic style eventually came to predominate.
Consider Popp Berman’s description of the orienting logics of American market regulation during the first half of the twentieth century that the economic style later took apart. She writes:
“Between the late nineteenth century and the New Deal era, the United States established a legal and organizational framework for governing both market competition in general (antitrust policy), and a range of specific markets that showed tendencies towards monopoly or where stability or broad access were concerns (or example, transportation, energy, and banking)…Although the exact motivations for regulating varied, none focused on the promotion of efficiency.” (P. 152.)
But if efficiency might not have been a key motivation, it is hardly clear that equality was. Stability, the orienting principle behind the regulation of financial markets since the New Deal, is not equality (and might even have entrenched inequality). The same might be said of regulation in sectors like energy and transportation.
Within administrative agencies as well, it is not clear that equality-oriented decision making was the norm before the economists assumed control. Of the culture of the Antitrust Division of the Justice Department, Popp Berman writes: “Antitrust lawyers were not generally interested in evaluating whether existing law was bad, or whether a particular merger would increase productive efficiency or reduce allocative efficiency. They were interested in winning cases: prosecuting as many violations as the law would allow in order to gain litigation experience.” (P. 85.) The same is true of lawyers at the Environmental Protection Agency (EPA), who shared a “‘culture of enforcement’ that interpreted success through the lens of winnable cases.” (P. 163.) However one might characterize this lawyerly orientation, it does not seem to be particularly oriented towards equality.
When it comes to scientists employed within agencies like the EPA, one might tell a similar story. Scientists enshrined the protection of ecosystems as a supreme value in ways that resisted logics of efficiency and equality. The first generation of environmental legislation treated environmental concerns as absolutes. Popp Berman tells us that it “built ambitious and relatively rigid rules—like simply banning water pollution unless the ‘best available technology’ for pollution control was used—because they saw inflexibility as a tool for preventing [legislative] capture.” (P. 155.)
From the foregoing, one might conclude that, when postwar economists and economistic bureaucrats implemented the economic style of reasoning within administrative agencies and pushed for deregulation of markets, it was by no means clear that they were, as a general matter, replacing equality with efficiency. Quite apart from the role that mid-twentieth-century bureaucracy played in exacerbating race-based inequalities, one might conclude from Popp Berman’s own complex account that the prior animating logics and the actual practices of American regulators were extremely varied, directed towards ensuring stability, minimizing market fluctuations, winning cases, protecting the environment seemingly regardless of cost, as well as what we might more conventionally call promoting equality.
I wish to conclude this review by drawing attention to something else that Popp Berman’s account makes visible. In my view, her rendering of the contest between environmental scientists, who placed the protection of the environment as an absolute beyond calculation in terms of costs and benefits, and economists, who insisted on viewing the protection of the environment in terms of the logic of matching limited means to multiple ends, reveals something important about economics and, indeed, about our own modern condition.
Like many realms of intellectual endeavor that underwent the modernist turn, in the late nineteenth century, economics shed its concern with given truths, ends, and foundations and became, albeit slowly, a science of matching limited means to multiple ends (to paraphrase the economist Lionel Robbins’ famous definition). What Popp Berman calls the economic style is a style for a world without ultimate truths. As economists describe their own endeavors, all they offer is a way of maximizing multiple ends given limited resources; they take ends as they come, without enshrining any one above others. God, in modern economics, really is dead. Popp Berman recognizes as much toward the end of Thinking Like an Economist where, in a section entitled “Lessons for the Practically Minded,” she tells her readers: “[T]he economic style does not allow for commitment to absolute principles—for moral values that are ends in themselves, rather than objectives to be evaluated in terms of costs, benefits, and trade-offs.” (P. 225.)
In a gesture of opposition to the economic style, Popp Berman urges those who would resist it to continue to make absolute claims. But going back to a pre-modernist world of ultimate truths, ends, and foundations might not be that easy. The way Popp Berman urges her readers to challenge the economic style suggests as much: “But even if one recognizes that rights are rarely absolute in practice, starting out with absolute claims is both morally powerful and politically useful.” (P. 225; emphasis added.) Those who invoke absolutes must recognize that there are no real absolutes, Popp Berman informs us, but they must nonetheless persist because absolute claims are “useful.” They must act “as if” their truth claims were true, just as (I would argue) economists have long modeled the world “as if” economic actors are rational. In this sense, moral claims, like the economic style Popp Berman would have them oppose, are techniques. How these different techniques will battle for hegemony in the future is, of course, another story. But it does suggest that vanquishing the economic style will be no easy task.
Thinking Like an Economist is a protean book. It draws attention to a vitally important (and hitherto understudied) feature of postwar American governance. At the same time, its open-ended account enables not only an interrogation of its own narrative, but also a meditation on the nature of knowledge. Legal historians will profit from reading it.
Cite as: Kunal Parker,
The Economic Style, JOTWELL
(January 2, 2023) (reviewing Elizabeth Popp Berman,
Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (2022)),
https://legalhist.jotwell.com/the-economic-style/.
Nov 17, 2022 Allison Madar
In Thrice Condemned: Enslaved Women, Violence, and the Practice of Leniency in Antebellum Virginia Courts, Tamika Y. Nunley examines “the homicides of white Virginians and the enslaved women held responsible for their deaths.” Murder (and attempted murder), she asserts, “was a form of enslaved women’s resistance” and not all of the accused women who stood trial in nineteenth-century Virginia were put to death for their crimes. (P. 5.) In fact, some had their sentences commuted in “what nineteenth-century jurists referred to as acts of ‘leniency’ or ‘mercy.’” Nunley argues that these acts of mercy help to illustrate both “competing ideas about the relationship of gender, paternalism, and leniency” and “the contradictions built into the meaning and administration of justice in antebellum Virginia.” (P. 6.)
Nunley brings together a number of fields of historical study in her work, as she explores not only slavery and the laws of Virginia, but also gender, resistance, and local legal culture. Her engagement with the work of Philip J. Schwarz’s Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865 (1988) is evident in her title. In Schwarz’s telling, enslaved laborers tried for crimes in Virginia courts were “‘twice condemned’ by southern law and slavery.” (P. 6.) In Nunley’s telling, enslaved women accused of capital crimes were, in fact, thrice condemned. They were not only condemned by southern law and slavery, she argues, but also by the courts’ use of “racialized gender stereotypes” to decide their fates. (P. 6.) Thrice Condemned, then, makes clear the “interconnectedness of gender, slavery, and southern law,” and the variety of ways in which Virginia communities reacted to the convictions of women who violently resisted their enslavement. (P. 34.)
The historical record rarely provides scholars with the voices of the enslaved, and Nunley’s experience in the archive was no different. In many instances, she found “legal records with only a few lines and little to no information about the enslaved women involved;” however, she also uncovered some truly rich cases and supplemented them, when possible, with newspapers and the papers of Virginia governors. (P. 10.) The stories of women like Nelly, Jane Williams, and Agnes serve as anchors for Nunley’s article. But throughout, she also provides evidence of other enslaved women who stood before the court for having killed, or attempted to kill, either their own masters and mistresses, or other white Virginians, both young and old, in their communities. (P. 10.)
Nunley first discusses the case of Nelly, an enslaved woman who appeared before the Prince William County Court in the late 1850s for the death of George E. Green, her master. Alongside Nelly stood her children and her grandchildren. The court found all five enslaved laborers guilty and sentenced them to death. Nelly and her two children, Betsy and James, hanged for their crime. Ellen and Elias, Nelly’s twin grandchildren, did not. Instead, after receiving petitions from residents of Prince William County and neighboring counties—some of which called for Ellen and Elias’s hanging and others that called for leniency—Governor Henry A. Wise commuted the twins’ sentences and ordered they be transported out of the county.
At first glance, it might seem as though Wise’s decision was a merciful one, one that saved the twins from certain death. But, in commuting their sentence to transportation, Nunley makes clear that Wise ensured the twins “remained in bondage without the elders who raised them and who had perhaps offered daily examples of generational resistance and their own ideas about justice when they were alive.” It is also likely that part of Wise’s calculations centered on the twins’ “capacity for long-term labor,” being only fourteen at the time of the trial. (P. 16.) Absent from Wise’s pardon was any acknowledgment of the brutality of slavery or the particular cruelty of George E. Green. His so-called leniency, then, much like that displayed in the other cases Nunley examines, took “gender, age, race, and sex” into account but also made sure to protect slaveholders and the institution of slavery itself. (P. 6.)
Nunley’s careful reading and analysis of Commonwealth v. Nelly and others is just one example among many in Thrice Condemned in which she teases out the reasoning behind the decisions made in Virginia courts. She does much the same with the case of Jane Williams, an enslaved woman who attacked a Richmond family for whom she periodically worked, killing the wife and severely injuring the baby and husband, and again with Agnes, an enslaved woman who murdered Gerard Mason, a particularly “sadistic” slaveowner and the grandson of George Mason. (P. 29.) While Nelly, Jane, and Agnes died for their crimes, the intricacies and nuances of each case bolster Nunley’s arguments regarding the contradictory nature in which Virginia courts administered justice in the nineteenth century. Even when communities stepped in to “temper the discourse to reflect a morally critical community,” they did not do so out of any kindness toward, or consideration of, the enslaved, but, instead, to defend “the ‘moral good’ and ‘necessity’ of slavery.” (P. 34.)
Also included in Nunley’s study are the trials of Caroline, Rebecca, Suckey and Kelsie, Annie, Susan, Mildred Ware, and Rose, women whose cases are not as detailed as those of Nelly, Jane, and Agnes, but provide insight into the different ways that Virginia courts came to their decisions and the justifications some courts made for commutations. Taken together, these cases elucidate the ways in which enslaved women, were, indeed, thrice condemned. Nunley’s study of enslaved women accused of crimes in nineteenth-century Virginia is a significant contribution not only to the existing scholarship on slavery and the law, but also to that on enslaved women’s resistance.
Cite as: Allison Madar,
Enslaved Women’s Resistance, Leniency, and Justice in Nineteenth-Century Virginia Courts, JOTWELL
(November 17, 2022) (reviewing Tamika Y. Nunley,
Thrice Condemned: Enslaved Women, Violence, and the Practice of Leniency in Antebellum Virginia Courts, 87
J. of S. Hist. 5 (2021)),
https://legalhist.jotwell.com/enslaved-womens-resistance-leniency-and-justice-in-nineteenth-century-virginia-courts/.
Oct 18, 2022 Anders Walker
Nicholas Guyatt, The Hated Cage: An American Tragedy in Britain’s Most Terrifying Prison (2022).
Nicholas Guyatt’s new book The Hated Cage tells the riveting tale of an English prison named Dartmoor that held thousands of Americans captive during the War of 1812. That war, once dismissed as a folly, has drawn increasing scholarly interest over the past decade, leading historians like Alan Taylor, Donald Hickey, and Nicole Eustace to posit that it was central to American nation-building at the time. Guyatt adds to this tale, taking us far across the Atlantic to a dreary dungeon where thousands of Americans found themselves constructing their own society from within the confines of cold granite walls.
The story is fascinating. Guyatt provides a glimpse into early 19th century penology and brings to life the chaotic world of trans-Atlantic navigation during the Early Republic when American sailors, many of them privateers, skirted British blockades and hunted British merchant vessels from the Caribbean to the French coast. England, conversely, struggled to find space for all the Americans that it captured with its massive, omnipresent navy. To meet said demand, England built Dartmoor Prison, an impressive penal complex in the Duchy of Cornwall.
Not simply a prison, Dartmoor emerges as a microcosm of American society, and a laboratory for Jim Crow. In his previous book, Bind Us Apart: How Enlightened Americans Invented Racial Segregation, Guyatt argues that American elites came up with the idea of racial segregation long before formal Jim Crow laws emerged in the American South. Specifically, Guyatt recounts antebellum debates about the question of “amalgamation” or race-mixing and shows how most educated white Americans–even abolitionists–rejected the idea that white people and black people could live together in close proximity. Instead, argues Guyatt, they opted overwhelmingly for racial separation, and specifically colonization, the transportation of African Americans to Africa.
But that was not segregation.
According to historian Howard Rabinowitz, segregation differed from colonization in that it did not involve the removal of African Americans to some distant locale. Removing populations, argues Rabinowitz, constitutes exclusion, not segregation. Segregation, by contrast, presumes that the races will live and work in the same spaces, often in decidedly intimate conditions.
Enter Dartmoor Prison. Guyatt shows, for example, that white and black prisoners interacted all the time in the prison, though whites insisted that they could not sleep in the same building as African Americans. According to Guyatt, whites harbored a set of preconceptions about Black behavior, including a sense that African Americans were criminally minded, unruly, and incapable of self-government. Key to this argument is “King Dick,” an African American prisoner remarkable for his physical size and political influence within the prison walls. Dick presided over an entire section of the institution–Prison 4–reserved exclusively for Black prisoners and his rule was sanctioned by whites. White jailers and prisoners both maintained that King Dick was the only government that black people could abide, for “only a strong man could bring order to people of colour.” (P. 214.) Whites, on the other hand, were naturally more inclined to creating “little republics.” (Id.)
Guyatt makes a big argument here, namely that white prisoners came to associate democratic rule with white identity, and authoritarian rule with black identity. The reason for this was prejudice, and specifically a racist notion that Africans lacked the capacity to behave in a responsible, adult manner and had to be ordered around like children. Only an autocrat like King Dick, presumed the whites, could bring order to Prison 4.
Guyatt demonstrates that this was a delusion. Prison 4 becomes, for him, a place that provided African Americans with “an extraordinary opportunity to create a world of their own and set the conditions on which white people could enter it,” (P. 359) so much so that it became “one of the largest self-governing Black communities outside of Africa.” (P. 10.)
That is quite a claim and places The Hated Cage firmly within a growing historiography of Black counter-publics, even as it raises questions about the larger American nation. For example, The Hated Cage suggests that segregation was not simply a product of elite discourse, as Guyatt argues in Bind Us Apart, but rather came from popular ideas about the relationship between race and self-rule. Guyatt notes, for example, that the sailors confined in Dartmoor had worked together on ships that were not segregated, but only demanded segregation once they were incarcerated. Why? Ironically, Dartmoor seems to have left a lot of the prison administration up to the prisoners themselves. This was not the case on ships, where everyone followed orders, and the sudden lack of authority seems to have caused some anxiety. Not only were the prisoners free to organize their social relations, but they were also, ostensibly, equal. This seems to have been too much for the white prisoners to bear, so they turned to racial segregation to alleviate their political anxiety. Racial thinking, in other words, created order where there was none. This link, between the need for order and the demand for segregation, is one of the most interesting aspects of Guyatt’s study, for it suggests that average white Americans had, by 1814, internalized the idea that not only were race and slavery linked, but so too were race and republicanism–or self-government.
The Hated Cage explains how this worked and–in so doing–may tell us something new about America itself. For example, the white prisoners’ insistence that race and self-rule were linked raises the question whether America’s republican experiment invited racism precisely because it did away with authority. By breaking from church and crown, in other words, did Americans find themselves looking for other ways to order their society? And was race one of those ways? Guyatt does not answer this explicitly, but he does present Dartmoor as a microcosm of America, and that America looked a lot like the Jim Crow South. According to him, for example, Prison 4 “illuminates a key question in American history,” namely whether African Americans could live “alongside” whites or whether they were destined to “live apart.” (P. 10.) The answer–intriguingly–is both. White prisoners requested to be separated from black prisoners but sought them out whenever they need a diversion. “In the cockloft of Four,” writes Guyatt, “were teachers of every sort: you could learn to read, write, fence, box, and dance, all things which were ‘very diverting to a young person.’” (P. 231.)
Just like Jim Crow, in other words, white and Black Americans interacted at Dartmoor all the time, even as whites insisted that the formal lines of difference between them remain clear. That this story unspooled during the War of 1812 is truly remarkable, for it suggests that Jim Crow was not simply a capitulation to late 19th Century racial extremism, as C. Vann Woodward argues, but may have been a popular reaction to the problem of equality and/or the absence of authority. Hence, white southerners moved to segregation as a response to the unsettling period of racial equality fomented by Reconstruction, while the prisoners at Dartmoor moved to segregation as a response to the unsettling period of racial equality foisted on them by their English jailers.
Guyatt adds a final wrinkle to this by underscoring that black people accepted the idea of republicanism as well, and even identified as American patriots. This is intriguing. Much has been written recently about Black efforts to escape the United States, particularly during the War of 1812. And a new raft of scholarship has emerged on Black/British alliances during that war, alliances that stretched across the South. Guyatt does not delve into this, perhaps to make a larger point about why Dartmoor has been forgotten. For example, he ends his story with Black historian William Cooper Nell who worked for abolition and recast “King Dick” as an American patriot. That failed, but Nell did succeed in elevating another African American, Crispus Attucks, to national prominence. Attucks, of course, died at the hands of the British during the infamous “Boston Massacre,” and helped cement the notion that black people were patriots.
However, the question remains. If Dartmoor was a “hated cage,” what was the United States?
Sep 16, 2022 Reuel Schiller
I’m sitting at our kitchen table in Brooklyn. It’s the mid-1970s. I’m not sure how the subject of Pittsburgh’s air quality came up, but my mother, who I’m sure had never been to Pittsburgh, was quick with an anecdote. “Did you know that Breyers Ice Cream doesn’t sell its famous vanilla bean ice cream there? People won’t buy it because they think the flecks of vanilla are little particles of coal dust that have gotten in their ice cream.” My mother was a notorious fabulist, and a morning spent poking around the internet suggests that this story was made up. Nonetheless, it lodged in my ten-year-old brain, shaping my image not just of Pittsburgh, but of the entire rustbelt. Imagine my surprise, fifteen years later, when I spent ten days there as a paralegal for a giant New York law firm, reviewing documents in our client’s offices, high up in the U.S. Steel Building. Not only did the air quality seem fine, but the city had all the accoutrements of late-1980s yuppie affluence: attorneys bedecked in pink tailored shirts and absurd shoulder pads, valet dry cleaning, Au Bon Pains everywhere, and all those damn flourless chocolate tortes.
I have no doubt that Gabriel Winant, the author of The Next Shift: The Fall of Industry and the Rise of Health Care in Rust Belt America, would be able to guess the type of product our client produced. It was a pharmaceutical company. At the center of Winant’s fantastic book is the question suggested by my brief encounter with Pittsburgh: how did it change from the quintessential industrial city to one with an economy sustained by healthcare and all its associated businesses? Of course, lurking not far under the surface of that question is a more fundamental one. How did large swaths of the American economy move from high wage, unionized industries that grew the white middle class to service industries with polarized wage structures that have generated economic inequality, particularly along racial and gendered lines?
I’m sure that Pittsburgh’s civic boosters have a pat explanation for the city’s transformation. Pittsburgh, they would say, was a city built by steel and the broad shoulders of the (white) men who labored in the mills. It was a dirty job, but it paid high wages that allowed (white) immigrant communities to climb into the middle class. By the 1970s, however, the steel industry was in trouble. Those high wages made it impossible to compete with steel produced by foreign companies, and the mills began to close. Fortunately, Pittsburgh was able to reinvent itself. Healthcare was its future. This quintessential form of the knowledge economy replaced dangerous jobs in the mills with ones in a clean industry where profits flowed from compassion, innovation, and the saving of lives.
The Next Shift leaves this story in tatters. First, Winant shows us that the “golden age” of industrial labor in Pittsburgh was anything but. Not only did mill work take a horrendous toll on the human body and the environment, but it was much more precarious than the traditional narrative suggests. Booms and busts, layoffs, and industrial conflict meant that steel workers and their families faced economic insecurity and its attendant social stresses even during the postwar era of unchallenged American economy hegemony. Of course, for Black workers things were even worse. Confined to the periphery of the industrial economy by employment discrimination and social segregation, African American workers faced an even more precarious economic existence than whites. Finally, Winant demonstrates with a subtlety still dismayingly rare among historians of the United States how the unpaid domestic labor of women working in the steel communities throughout the Monongahela Valley served as the foundation of the entire industry. Steel corporations and the United Steelworkers of America may have negotiated contracts that purported to pay a “family wage,” but The Next Shift demonstrates how women’s household labor in fact subsidized the industry through feeding and caring for its workers, consuming its products, and acting as a private welfare system that sustained the social order in times of economic downturn.
The Next Shift’s nuanced description of the steel economy is a significant accomplishment, but it is not the key point of the book. Instead, Winant’s bravura analytic move relates to the second part of our civic booster’s tale: the rise of the healthcare industry to be not only Pittsburgh’s largest employer but one of the fastest growing sectors of the United States’ economy. It is not serendipity that caused healthcare to replace steel. Instead, it was the structure of America’s labor law and its welfare state. U.S. labor law facilitated the unionization of steel workers and the creation of collective bargaining agreements that included generous healthcare benefits for active and retired steelworkers. At the same time, our otherwise underdeveloped welfare state provided generous health benefits though Medicaid and Medicare. Thus, when the industrial economy collapsed, enormous amounts of money continued to flow into the healthcare sector as the battered, aging bodies of steelworkers and their families availed themselves of the only social benefits, public or private, that actually addressed the needs of the working class in the deindustrializing Rust Belt. The healthcare industry prospered due to the legacies of the collapsing steel industry.
Yet, as Winant cogently describes, this is only half the story of this economic transformation. Unlike the steel industry, for most of the postwar period, union organizing in the healthcare sector was not protected by American labor law. Consequently, wages for most healthcare workers were unconscionably low and other employment benefits were negligible or nonexistent. Additionally, because of pervasive employer and union discrimination against Black and female workers, these low wage jobs in the healthcare industry were dominated by African Americans and white women. Thus, Pittsburgh’s transformation from a steel town to a healthcare town also saw the transformation of its working class. White, male workers receiving a relatively high wage, as well as substantial, private welfare benefits guaranteed by collectively bargained contracts were replaced by Black and female workers with substandard wages and few benefits, who were forced to fall back on the stingy public welfare state in times of economic crisis. Indeed, in the dismaying denouement of The Next Shift, Winant describes how healthcare workers were squeezed even further in the final decades of the twentieth century. Neoliberal policy triumphs of the last third of the century constrained public healthcare spending. Hospitals, nursing homes, and outpatient clinics responded by cutting costs, usually at the expense of workers’ pay.
This thumbnail description of The Next Shift does not do justice to its wide-ranging narrative that combines labor history with explorations of twentieth-century political economy, urban history, business history, and the tangled stories of race and gender in postwar America. The Next Shift also functions as an exceptional piece of legal history. Winant demonstrates how legal mechanisms were central in structuring the shifting identity of the working class. Consider, for example, the National Labor Relations Act and the Taft-Hartley Act’s exclusion of domestic workers and healthcare workers from the protections of American labor law. These exclusions, as well as Taft-Hartley’s sanctioning of right-to-work laws, created islands of unionized high-wage workers with substantial private welfare benefits amidst a sea of unrepresented low-wage workers. The occupations these exclusions encompassed, combined with the absence of meaningful anti-discrimination laws until the middle of the 1960s, meant that the islands were largely inhabited by white, male workers, while women and workers of color floundered in the sea. To overextend the metaphor, Winant’s story describes how the American economy moved from the land to the water.
Similarly, a key theme in Winant’s story is how America’s patchwork welfare state allocated the burdens of both social reproduction and economic downturns differently between the old working class and the new one. American labor law created the private part of this system, which links many benefits (most healthcare and retirement benefits) to employment. At the same time, the public side of this system, created during the New Deal and the Great Society, had a legal and administrative structure that generated expanded public healthcare spending at the same time as it neglected other forms of social spending. This neglect left African Americans and working-class white women no choice but to enter the workforce as low-wage healthcare workers. The law determined whether the money went, and workers had no choice but to follow it.
The Next Shift thus serves as an object lesson in how law structures society and its political economy. The passage of particular laws emerge as moments of contingency in Winant’s narrative. Some, of course, are over-determined. Southern congressmen were not going to support the NLRA if its benefits flowed to economic sectors dominated by Black workers. In other instances, however, a law’s effect ricochets in unanticipated ways. The exclusion of health benefits from World War II-era wage control laws was not intended to create a dual system of welfare provision. Medicare and Medicaid were not designed to ensure that healthcare spending would shape the nature of the American economy as it transitioned from industrial to postindustrial. Yet as Winant demonstrates, these were, in fact, the results of these laws. The Next Shift thus describes the emergence of the new working class, and shows us how the law defined it.
Aug 4, 2022 Michelle McKinley
Freedom with Local Bonds: Custom and Manumission in the Age of Emancipation examines the ways in which claims to freedom were interpreted by judges who drew on local custom in contested manumission suits in 19th century Santiago de Cuba. Slavery scholars have long examined manumission in Cuba (known as coartación) as the practice of paying for one’s freedom with fixed instalments and terms agreed upon by both the enslaved and enslaver. Drawing on the Roman law concept of peculium, enslaved people could earn wages and pay a portion of these towards their purchase price. Coartación was one strategy that created a status of conditional freedom. Other manumission strategies included promissory notes of freedom for terms of service, typically conveyed through testament at death and at baptism. Notwithstanding this plurality, Chira shows that coartación accounted for 75% of the manumissions in Santiago de Cuba during the 19th century. Because these were arrangements that stretched over considerable periods of time, the legal status of conditionally freed people was often nebulous and dependent on local customary interpretations of freedom contracts. Although the enforcement of manumission contracts was ultimately a legal matter, Chira shows that jurists depended heavily on local custom to rule in the cases she examines.
The article examines the local bonds, community ties, landholding patterns, and economic exchanges that manumission depended on—given its relatively sparse doctrinal or formalist treatment in the law. In so doing, Chira pushes us to “consider an alternative genealogy of freedom ideologies in the 19th century.” (P. 950.) Cuba was one of the last two nations to abolish slavery in 1886. The aftermath of the Haitian Revolution unfolded simultaneously with the voracious global demand for sugar for mass consumption. As such, 19th century Cuba experienced plantocracy expansion, black repression, and dependence on enslaved labor for sugar. This scenario would not have created the propitious conditions for manumission. Yet as Chira shows, enslaved people had been pursuing individual paths to freedom through the courts throughout the century. In fact, free people of color represented one-third of the population in Santiago de Cuba, and nearly half of its landholdings were owned by free people of color. (P. 959.) As Chira notes, numbers like these tell one story, but they also reveal very little about “the vexed dynamics of manumission.” (Id.)
Freedom with Local Bonds examines two core arguments that will be of interest to legal historians and slavery scholars more broadly. The first is what Chira calls “vernacular legalism,” (P. 953) and the second revisits the contested argument about African slaveholding patterns as “wealth in people.” (P. 959.) Given her interest in local patterns of emancipation and dependency, Chira turns to notarial and judicial archives—particularly in testaments– to unravel the bonds of affective and material debts. Free black women’s testaments reveal “locally specific hierarchies [of clientelism] often structured around segmentary kinship in which power arose from control over people.” (P. 960.) Free black women often paid the price of freedom up front and then recouped their costs through secondary payments from the coartado’s earnings. Other women acted as godparents of black people and children whom they owned. These were complex relationships casting light on processes of emancipation bound by clientelism and kinship. As property is paramount here, Chira turns our attention to the long overdue conversation about African slaveholding patterns as wealth in people raised by Miers and Koptyoff in the 1970s. Local records allow us to confront how formerly enslaved people invested in the enslavement of others—pushing us away from easy conflations of racial solidarity and urging us to consider the ways in which black people “produced emancipation from below through custom.” (P. 962.)
The article concludes by acknowledging the conundrum that many slavery scholars regard manumission as a tool of social control, “designed to discipline enslaved people with the promise of freedom.” (P. 976.) Manumission was an individual remedy, stretched over time, creating tiers of dependency and conditional freedom. It is perhaps unfairly compared with other collective paths to freedom such as revolution and abolition. Through her archival reconstruction, Chira unearths alternative rural paths to emancipation that are not aligned with liberal trajectories of freedom. In so doing, she urges us to expand our notions of freedom and legal activism by showing how enslaved and free people of color actively shaped the working of the local judicial system, producing emancipation through custom.
Jul 6, 2022 Allison Brownell Tirres
When assessing a canonical Supreme Court case, legal scholars often emphasize the road to the case and its decision, and then move on. It is the issuing of the decision that ends the discussion. But there is much to lose if we do not take seriously the aftermath of a case and ask how that decision translated into actual legal practice. This is the important work that Amanda Frost does in her article on the canonical 1898 case United States v. Wong Kim Ark, which upheld the Fourteenth Amendment’s guarantee of citizenship to those born on U.S. soil. The case is heralded as a moment of enlightenment amid a dark exclusionary era, but this article reveals a far more complicated legacy. Frost mines the archives to bring us the startling discovery that Wong Kim Ark’s citizenship was far from settled after the Court issued its decision, despite its unequivocal holding.
By Accident of Birth artfully weaves together multiple strands, including the legal history of birthright citizenship, the social history of Chinese Americans, and the family history of Wong Kim Ark, to shed new light on this landmark case. Wong Kim Ark’s personal and family history serve as the organizing frame for the article. Wong was born in San Francisco in 1870, just two years after Congress ratified the Fourteenth Amendment and twelve years before passing the first Chinese Exclusion Act. His parents lived in the U.S. legally for many years prior to his birth, but they – like other Chinese migrants and Chinese Americans—were commonly subjected to discriminatory state and local laws as well as vigilante violence.
In 1871, a white mob attacked San Francisco’s Chinatown, destroying businesses and assaulting residents. Wong and his family returned to China not long after, but Wong himself maintained his connection to his birthplace, returning as a young man and taking up work as a cook in a mining camp. He made two more trips back to China, returning to the U.S. each time. Given that he was admitted without incident twice, Wong likely thought that his citizenship was settled, but on return from his third trip in 1895 he was detained by immigration authorities. They claimed he was not a citizen and had no right of entry.
By this point, the Fourteenth Amendment had been in place for three decades, but a court had not yet definitively interpreted the birthright citizenship clause as it applied to children born to immigrants on U.S. territory. As Frost explains, government authorities sought a test case, hoping that the courts would declare the children of noncitizens born on U.S. soil to be unable to claim the right of citizenship. Wong’s detention was an intentional flexing of the immigration bureaucracy to force the Court to interpret the Amendment. Much to the government’s chagrin, the Supreme Court came out in favor of Wong Kim Ark, establishing the principle of birthright citizenship even for those born to immigrants who were barred from naturalizing.
The dispute was, on its face, about immigrants and their children, but Frost shows how the case was also a referendum on the legitimacy of the Fourteenth Amendment itself. The Solicitor General, a veteran of the Confederacy, used his time in oral argument to question the validity of the Amendment, while in contrast Wong’s attorneys spoke forcefully for its lawfulness. As Frost aptly notes, “the Civil War itself was on trial.” (P. 59.) Given this subtext, it is perhaps less surprising that the Court would ultimately hold for Wong, despite the prevalence of anti-Asian sentiment at the time.
Wong Kim Ark’s journey to the Supreme Court is not a new subject; other historians, including most notably Lucy Salyer and Erika Lee, have written extensively about this case and about the interactions of Chinese migrants with American law more generally. Where Frost treads especially new ground is in tracing the aftermath of the case through archival records. The administration of the law by executive branch officials routinely undermined the principle of birthright citizenship, forcing Wong and his family to continue to fight for their rights despite the Court’s unambiguous decision. Wong himself was arrested and imprisoned in Texas in 1901, suspected of being unlawfully in the country. It took a year and protracted efforts before the government again declared that Wong was, in fact, a U.S. citizen.
Frost traces the ordeals of Wong’s Chinese-born children, who were U.S. citizens by virtue of their father’s citizenship but who faced significant opposition when they tried to enter the country to be with their father. They, like other Chinese-American entrants claiming citizenship, were subjected to exhaustive and detailed interrogations, invasive physical exams, and prolonged detention in miserable circumstances. The agency’s procedural requirement that claimants produce two white witnesses to testify to their birth all but guaranteed that many rightful citizens would be barred from entry or deported. This multi-generational story shows just how tenuous birthright citizenship claims could be, even in the aftermath of a definitive landmark Supreme Court decision.
Frost also sheds light on the ways that Chinese migrants resisted exclusion, through the courts as well as through coordinated efforts to evade immigration control. As Frost recounts, one of Wong’s four sons was later revealed, by his own testimony in 1960, to be a “paper son” – one who made a fraudulent claim of citizenship in order to attain lawful status. The proliferation of such claims was not surprising given that there were so few paths to lawful migration. Ironically, the government’s “relentless documentation” and demands for minute details made it easier for fraud to proliferate. As Frost notes, “[a]ctual citizens, unprepared to run the gauntlet, could easily stumble over detailed questions about the location of houses in their home village or the exact names and birthdates of neighbors and children, even as well-coached imposters sailed through.” (P. 72.)
As this article convinces us, it is in the administration of citizenship law – and its challenge by means both lawful and unlawful—that we see the real impact and meaning of the Court’s decision in Wong Kim Ark. Even decades after the case was decided, citizens struggle to overcome the difficult bureaucratic hurdles placed in their way by other branches of the government. Frost’s new telling of this history helps us better understand both the promise and limitations of the core principle of birthright citizenship.
Jun 8, 2022 Jedidiah Kroncke
Yzes Dezalay and Bryant Garth have been producing theoretically and methodologically innovative work on lawyers for nearly three decades. Their latest collaboration, Law as Reproduction and Revolution, extends their commitment to understanding the global and comparative dynamics of modern legal professions with greater ambition than any of their now classic works.
Here Dezalay and Garth (D&G) seek nothing less than to produce a global framework for understanding the modern production of elite lawyers. They build a theoretical framework for understanding how legal professions reproduce themselves in times of social change, in large part by developing critical histories of the legal professions in several European countries and the United States. They then illustrate how this framework helps explain 20th century changes in the legal professions of India, Hong Kong, China, South Korea and Japan—especially as impacted by interpretations of modern US legal professionalism.
It is exactly this aspect of the book that is most admirable. D&G demonstrate that good comparative, more so transnational, legal history is immensely demanding because it does not simply require a critical understanding of multiple legal traditions. Transnational analysis also requires a critical theoretical position on their global interconnections. This is especially true when modern legal professions proactively promote idealized versions of their histories and social function not only to domestic audiences but also increasingly to foreign interlocutors.
What makes Law and Reproduction and Revolution’s ambition so broadly engaging is that D&G carry out this project while also wading directly into current debates about social inequality and meritocracy. Arguments regarding the sources of social inequality routinely intertwine with arguments about the legitimacy of inequality itself. Proponents of meritocracy normatively sort various sources of inequality as good or bad, and then argue that while social systems properly oriented toward individual “merit” do generate inequality they do so in a socially productive manner. Concurrently, meritocracy, in contrast to some feudal or nepotistic norm, has often been used by minoritized groups to critique and gain access to institutions perceived as captured by entrenched, self-interested groups. Yet, systems of prestige and power are ever adaptive; newly ascendant notions of individual merit quickly become social produced and tied to older social patterns of inequality. A classic exemplar here is the history of standardized testing for university admissions.
D&G thus orient the book around explaining why many “revolutions” in modern legal professions have followed exactly this same pattern of radical challenges to the status quo that ultimately fail to subvert the inequalities that motivated them. Here D&G oppose “meritocracy” with “family capital” to show how norms of meritocracy are used by minoritized groups to challenge an entrenched legal profession—in many countries structurally dominated by familial capital. Legal elites respond to these new norms, and associated challenges to status quo legal practice, by adopting new meritocratic rhetoric while continuing to reproduce patterns of inequality in which family capital becomes highly correlated with new indicia of individual/legal merit. A rather consistent global exemplar here is access to elite Euro-American graduate and post-graduate legal degrees.
Theoretically, D&G use their two early chapters to articulate their most refined engagement with Pierre Bourdieu’s legal sociology, while integrating a critical reading of Harold Berman’s classic studies of legal revolutions in Europe. D&G emphasize Bourdieu’s argument regarding the particular role of lawyers in mediating between society and state power, and how lawyers ground their professional legitimacy by integrating different forms of social capital—notably both intellectual and financial capital. This gives many legal professions their particular quality of simultaneously making claim to inherited traditions while emphasizing individual merit. Understanding how this dynamic operates in practice requires understanding the socialization of lawyers as much as, if not more so, than it does their theories of law. Here D&G make pointed use of Bourdieu’s classic observation that brilliant legal upstarts in France would more often than not marry into legal aristocracies.
More theoretically novel for D&G is their use of Harold Berman and his study of “legal revolutions” to help readers understand how legal professions are able to maintain their social position even when ascribing to new theories of law or new forms of legal practice. D&G draw on Berman to describe this process as “rupture and recomposition.” (P. 25.) Integrating Berman’s insights adds a deeper historical dimension to their earlier work, and provides a clearer basis for showing how marginal legal ideas and actors are integrated into legal professions to help preserver their authority during larger political and social realignments.
D&G thus synthesize Bourdieu and Berman to identify the social patterns which allow legal oligarchies to persist even when outside challengers intend to upend an ancient regime. Here they engage English and European legal history to map out how varied modern models of legal professionalism were developed, and later informed and reconfigured by periods of empire and their imposition on colonized peoples.
The authors spend the next two chapters delving most deeply into the formation of the 20th-century US legal profession. They claim that aspects of the US profession became a global symbolic repertoire for modern attacks on established legal professions in other countries. Moreover, the ascent of the “Harvard Model” of legal education and the modern bar replayed exactly this pattern of meritocratic intervention into an entrenched regime, on terms which later frame arguments for inclusion by minoritized groups.
The history D&G present is decidedly critical. They reject the ideal of the modern US lawyer as achieving the pro-democratic or pro-equality effects on which lawyer self-regulation is premised. The role of the legal profession in the creation of early 20th century US empire is described as “enhancing corporate power abroad and legitimating corporate expansion and empire as according to the rule of law.” (P. 70.) Moreover, as they move through the Cold War, they extend their theoretical frame to encompass how the corporate bar used notions of social service and contribution to create a space where “moral entrepreneurs, the elite law schools, the liberal establishment, and corporate lawyers were in the process of coming together.” (P. 85.) It is this particular confluence of moral and legal merit that became so symbolically attractive elsewhere, but also helped obscure the incestuous patterns of familial advantage and wealth that continued to shape elite legal careers in the US.
It is impossible to do justice to the subsequent chapters of the book, each of which applies the author’s theoretical frame to one country—here again 20th-century India, Hong Kong, China, South Korea and Japan. True to their methodological ambition, in each chapter the authors focus on a point the country’s history when it encountered the symbolic force of the US legal profession and US-inspired symbols of legal meritocracy given US lawyer’s centrality in the post-World War II economic order. Common to each history is a particular class of social actors who saw reforming their domestic legal profession as a means to upset the ancient regime in which it functioned.
In each chapter, D&G use varying levels of historiographical engagement alongside their now-signature use of elite interviews. In doing so, as they routinely admit, scholars with focused expertise in the particular country will find details large and small to challenge. In their chapter on China, difficulties arise as Chinese legal history has advanced so quickly in recent decades to upend long-held misrepresentations. In their chapter on Hong Kong, where interviews play a more decisive empirical role, the views of respondents require a great deal of background knowledge to critically evaluate. And, as the last few years attest to, trends and developments of the past few decades can be upended quite quickly in each of the countries examined.
Yet, D&G make clear throughout Law as Reproduction and Revolution that they understand these limits. What they are trying to achieve in the book is both more ambitious and humble. That they give particular answers to any specific question is less important than establishing that there is a set of common questions facing legal professions, and that answers to these questions are transnationally intertwined.
Herein, the global patterns that Law as Reproduction and Revolution seeks to establish many would take as provocations. In all of the case studies, intentional external efforts to induce change in legal professions fail—even those carried out in countries which later turn to US models in their domestic debates. At the same time, local reformers who drew on US examples almost routinely end up with reforms that don’t lead to anything like US law schools or US legal practice in substance. Even nominally equality-inducing dynamics, such as practicing public impact litigation as a source of legal prestige, end up having the same non-revolutionary impact as D&G claim they have had in the US.
More critically, reforms which advance legal meritocracy to subvert ancient regimes are rarely the levers for combating inequality that their proponents hoped for. The victories of seemingly revolutionary legal ideas or forms recurrently fail to dislodge familial capital as a dominating variable in success as an elite lawyer. At best, these reforms create narrow pathways for accessing the cosmopolitan capital of elite global corporate practice—capital which ends up structurally dependent again on family capital.
Though not so bluntly stated, the book is especially provocative for those who study legal education, in that it illustrates how the particulars of what happens in law schools are far less important for the impact of legal practice on any given society than how the market for legal services is constructed. In particular, in any system that maintains a predominately private market for legal services, the statistical supermajority of lawyers will invariably gravitate to reproduce, rather than challenge, social inequality. Moreover, the transnational elements impacting most legal professions have led to changes that are largely restricted to a handful of elite schools, whose graduates form a globalized legal elite that often has more in common with elites in other countries than their local bars. Notably, the words “democracy” and “democratic” appear quite infrequently throughout the book.
In the end, Law as Reproduction and Revolution does demonstrate that any attempt to separate social theory and historiography, an often explicit methodological conceit of many historians, simply means leaving many implicit assumptions about human behavior and social organization unexamined. In practice, critical historical knowledge and social theorization are mutually essential. At the same time, D&G have laid out yet another aggressive statement that studying lawyers in sociological context is necessary for understanding not just national, but also the ever-growing transnational spaces of lawyering that intermix legal traditions. In the transnational context, these mutualities can be bewildering because of their complexity. But only by engaging with such complexity can more eternal questions, such as those that revolve around meritocracy, be addressed with clarity.
May 19, 2022 Christopher W. Schmidt
Sarah A. Seo,
A User’s Guide to History,
in Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, & Heinz Klug eds., 2021), available at
SSRN.
In A User’s Guide to History, Sarah A. Seo offers a thoughtful and challenging assessment of the possibilities and pitfalls of using historical scholarship to guide our present. At the heart of her essay is a tension between needs and methods. We need to know the past to understand the present; we need to know what we’ve done before so we can make the right choices about policies today. But, as Seo strikingly puts it, “history’s methods seem unsuited for determining what, exactly, those policies should be.” To demand that history has a “practical use,” that it serves as “a tool for reform,” may be “something like a suicide mission,” putting at risk “the integrity of the discipline.” (P. 465.)
Seo’s essay—a contribution to the Research Handbook on Modern Legal Realism— thus offers historians a warning, a reminder of the limits of their craft. The essay can be read as a critique of historians who, moved by some combination of enthusiasm, desire for attention, and moral commitment, too confidently claim special insight into present-day legal and political choices.
But Seo’s primary project is constructive. By analyzing how historical scholarship can inform the choices of the present (what she describes as history’s “translation challenges”), she seeks not only to acknowledge history’s limitations, but to celebrate its distinctive and essential contributions. Seo dedicates the first half of her essay to drawing on recent U.S. legal historical scholarship to construct a “typology of history’s insights.” (P. 465.) She describes how the historians’ focus on context, time, contingency, and human subjectivity illuminates a variety of sociolegal dynamics—from the evolution of legal categories to the relationship between law and social movements to the way individuals experience periods of legal transformation.
After this illuminating survey of recent work in legal history, Seo arrives at the key question of the essay: “So, what do we do with this historical knowledge?” (P. 472.) At this point the essay shifts from summarizing the contributions of exemplary legal historical scholarship into a critical analysis of how historians use their expertise to participate in contemporary law and policy debates. And here is where we encounter the crux of the dilemma of the engaged historian: the very methods and assumptions that allow historians to bring fresh insights to sociolegal dynamics of the past—particularly their insistence on the primacy of context and contingency—limit their ability to translate insight into prescription.
“The main issue in translating historical conclusions into policy arguments,” Seo observes, “is that the questions that motivate historians are not precisely the questions that policymakers, or the public, ask.” (P. 472.) Historians work primarily in a descriptive register. The terms of policy debate, by contrast, are primarily normative. And when historians shift registers, using their knowledge of the past to defend a normative position—writing amicus briefs or op-eds, testifying before lawmakers or in court—what emerges is often second-rate history. It’s history stripped of the nuance, ironies, and complexities that breathe life into the best historical scholarship. Historians have a long record, going back at least to Brown v. Board of Education, of joining forces with lawyers and then writing confessional accounts of the scholarly compromises this work entailed. The steady ascendancy of originalism as a method of constitutional interpretation in recent decades has only increased the demand for historical scholarship that pushes aside the constraints of context and contingency and locates in the past clear conclusions that can be applied in the present.
Seo does not linger on episodes of historians who feel they have compromised their scholarship in the service of advocacy. She is more interested in exploring the ways in which historians can contribute to contemporary policy debates while maintaining their commitment to the context, time, contingency, and human subjectivity that constitute the essence of historical scholarship.
One essential role for professional historians in the public sphere that Seo identifies is error correction. When public figures use shoddy history to justify some action or argument, professional historians have a responsibility to speak up.
Another role that historians can play in policy debate is to chasten excessive optimism about legal reform. Much of the historical scholarship Seo surveys in this essay emphasizes the limits of law in producing social change. Yet, at the same time, history often provides inspiration for reform efforts. By paying close attention to change over time and the contingency of law and social practices, historians challenge those who assume that just because something is a certain way, it always was and always will be that way. A famous example of this was C. Vann Woodward’s 1955 The Strange Career of Jim Crow, a book Woodward intended as not only a reinterpretation of the emergence of segregation in late nineteenth century America, but also a direct statement about the potential for civil rights reform in the 1950s.Woodward’s message to the nation, and particularly to his native South, was that segregation was not as old or as deeply entrenched as generally assumed, and that dismantling Jim Crow was therefore more possible than many thought. Historians, Seo writes, “specialize in stories of change, which can affirm that change is possible.” (P. 472.) One of their key contributions is to “liberate us from the past.” (P. 475.)
But what about the historian who seeks to contribute to public debate beyond offering these “general messages of humility and hope” (P. 472) and beyond correcting the errors of others? What about the historian who wants to claim that history—that is, the findings produced by rigorous historical inquiry, as guided by the best practices of the profession—tells us we should do x and not y? Can the historian who fully engages in political or legal advocacy remain in the role of the historian?
Seo suggests—rightly I think—that the answer to this question is no. Although it seems that many historians, judged by word and action, disagree, there is simply no getting around the limitations of historical methods.
To assert that “history” is on one side or the other of a particular policy dispute or legal reform effort, is not, strictly speaking, a historical claim. Its primary goal is to explain and shape the present; its value and validity is determined by the future, not the past. Such an assertation uses history not as an end unto itself but as a means for another end. It requires a process of decontextualization and abstraction that denies the foundational assumptions of the historian’s discipline.
The point here is not that historians should refrain from taking sides in debates over the direction of law and policy. Historians can and should be advocates for causes they believe in. And the knowledge and moral sensibilities derived from their historical scholarship surely informs the positions they take and the arguments they make. The point is that the shift from a descriptive to a prescriptive register requires a different set of analytical tools, and that these are not the tools of historical analysis.
Seo’s essay leaves the reader with an account of historical knowledge that is chastening, perhaps, but also inspiring. Historical expertise may not be particularly good at supplying answers to present-day challenges, but we cannot successfully face these challenges without the rich, complex accounts of human experience and the windows onto alternative ways of thinking and living that a knowledge of history gives us.
Cite as: Christopher W. Schmidt,
Using the Past, JOTWELL
(May 19, 2022) (reviewing Sarah A. Seo,
A User’s Guide to History,
in Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, & Heinz Klug eds., 2021), available at SSRN),
https://legalhist.jotwell.com/using-the-past/.
