Fletcher and Lovelace, "Corporate Racial Responsibility"

We missed this one when it first appeared in the Columbia Law Review: Gina-Gail S. Fletcher and H. Timothy Lovelace, Jr. (both of Duke University School of Law), "Corporate Racial Responsibility." Here's the abstract:

The 2020 mass protests in response to the deaths of George Floyd and Breonna Taylor had a significant impact on American corporations. Several large public companies pledged an estimated $50 billion to advancing racial equity and committed to various initiatives to internally improve diversity, equity, and inclusion. While many applauded corporations’ willingness to engage with racial issues, some considered it further evidence of corporate capitulation to extreme progressivism at shareholders’ expense. Others, while thinking corporate engagement was long overdue, critiqued corporate commitment as insincere.

Drawing on historical evidence surrounding the passage of Title II of the Civil Rights Act of 1964, this Article engages with the debate on corporate “racial” responsibility to demonstrate that corporate engagement on race is not new. Indeed, during the struggle to desegregate public accommodations, corporate social responsibility was invoked to encourage voluntary desegregation and avoid federal intervention. Segregation was good business for some; for others, maintaining white supremacy justified any pecuniary losses.

While this Article argues that corporations have a role to play in achieving racial equity, it cautions against reliance on corporate social responsibility to advance racial equality. Past and current iterations of corporate racial responsibility have often represented a market-fundamentalist, value-extractive approach to racial equity that reifies existing racial hierarchies. By valuing racial equity in terms of its potential profitability, corporate racial responsibility can subordinate human dignity to wealth maximization. This Article argues for a more meaningful corporate racial responsibility that addresses the structures and laws undergirding racial inequities within corporations and our larger society.

The full article is available here.

-- Karen Tani

BHC Prizes to Con Díaz and Canaday

Several prizes of interest to legal historians were awarded at the just-concluded Business History Conference.  One was the Anne Fleming Article Prize, awarded jointly ever other year jointly with the American Society for Legal History “to the author or authors of the best article published in the previous two years in either Law and History Review or Enterprise and Society on the relation of law and business/economy in any region or historical period.”  This year’s recipient is Gerardo Con Díaz, Yale University, for Patent Law and the Materiality of Inventions in the California Oil Industry: The Story of Halliburton v. Walker, 1935–1946, published in Enterprise and Society:

This article examines a patenting conflict between the Halliburton Oil Well and Cementing Company and an independent inventor named Cranford Walker. It argues that Halliburton’s effort to lower the barriers to entry into the oil well depth measurement industry facilitated the re-emergence of materiality as a pre-condition for the patent eligibility of inventive processes. In 1941, Walker sued Halliburton for infringement of three of his patents, and Halliburton responded with an aggressive defense aimed at invalidating them. Over the next five years, the courts handling this conflict adopted very narrow legal theories developed during the Second Industrial Revolution to assess the patent eligibility of inventions that involved mental steps—processes such as mathematical computations, which people can perform in their minds. The resulting legal precedent cleared the path for Halliburton’s short-term industrial goals and continued to shape patent law for the rest of the century.

The BHC’s Hagley Prize in Business History, "for the best book in business history, broadly defined," went to Margot Canaday, Princeton University, for Queer Career: Sexuality and Work in Modern America:

Workplaces have traditionally been viewed as “straight spaces” in which queer people passed. As a result, historians have directed limited attention to the experiences of queer people on the job. Queer Career rectifies this, offering an expansive historical look at sexual minorities in the modern American workforce. Arguing that queer workers were more visible than hidden and, against the backdrop of state aggression, vulnerable to employer exploitation, Margot Canaday positions employment and fear of job loss as central to gay life in postwar America.

Rather than finding that many midcentury employers tried to root out gay employees, Canaday sees an early version of “don’t ask / don’t tell”: in all kinds of work, as long as queer workers were discreet, they were valued for the lower wages they could be paid, their contingency, their perceived lack of familial ties, and the ease with which they could be pulled in and pushed out of the labor market. Across the socioeconomic spectrum, they were harbingers of post-Fordist employment regimes we now associate with precarity. While progress was not linear, by century’s end some gay workers rejected their former discretion, and some employers eventually offered them protection unattained through law. Pushed by activists at the corporate grass roots, business emerged at the forefront of employment rights for sexual minorities. It did so, at least in part, in response to the way that queer workers aligned with, and even prefigured, the labor system of late capitalism.

Queer Career shows how LGBT history helps us understand the recent history of capitalism and labor and rewrites our understanding of the queer past.

Other prize winners and honorable mentions, many for scholarship of interest to legal historians, are here.

--Dan Ernst.  H/t: SB

Black's "Branding Trust"

Jennifer M. Black, Misericordia University, has published Branding Trust: Advertising and Trademarks in Nineteenth-Century America (University of Pennsylvania Press):

In the early nineteenth century, the American commercial marketplace was a chaotic, unregulated environment in which knock-offs and outright frauds thrived. Appearances could be deceiving, and entrepreneurs often relied on their personal reputations to close deals and make sales. Rapid industrialization and expanding trade routes opened new markets with enormous potential, but how could distant merchants convince potential customers, whom they had never met, that they could be trusted? Through wide-ranging visual and textual evidence, including a robust selection of early advertisements, Branding Trust tells the story of how advertising evolved to meet these challenges, tracing the themes of character and class as they intertwined with and influenced graphic design, trademark law, and ideas about ethical business practice in the United States.

As early as the 1830s, printers, advertising agents, and manufacturers collaborated to devise new ways to advertise goods. They used eye-catching designs and fonts to grab viewers’ attention and wove together meaningful images and prose to gain the public’s trust. At the same time, manufacturers took legal steps to safeguard their intellectual property, formulating new ways to protect their brands by taking legal action against counterfeits and frauds. By the end of the nineteenth century, these advertising and legal strategies came together to form the primary components of modern branding: demonstrating character, protecting goodwill, entertaining viewers to build rapport, and deploying the latest graphic innovations in print. Trademarks became the symbols that embodied these ideas—in print, in the law, and to the public.

Branding Trust thus identifies and explains the visual rhetoric of trust and legitimacy that has come to reign over American capitalism. Though the 1920s has often been held up as the birth of modern advertising, Jennifer M. Black argues that advertising professionals had in fact learned how to navigate public relations over the previous century by adapting the language, imagery, and ideas of the American middle class.

--Dan Ernst

Job Alert: Director, Lemelson Center

[We have the following announcement.  DRE.]

Director, Lemelson Center for the Study of Invention and Innovation.  Public History Division, National Museum of American History, Smithsonian Institution

The Smithsonian’s Lemelson Center for the Study of Invention and Innovation seeks a Director to serve as the champion for the power of invention and innovation and to lead the Center’s pathbreaking educational and engagement efforts. The Director oversees scholarship, exhibitions, and digital and programmatic initiatives, guiding the Center as an authority on the history of invention and innovation and its potential to inspire learning and change. This is an opportunity to lead a motivated staff and fulfill the Center’s strategic mission, drawing on consistent, protected funding from the current Lemelson endowment.

To learn more about the Lemelson Center’s previous events, research, publications, exhibitions, and programming, please visit [here].

Job Requirements/Desired Skills and Experience:

Experience in a museum, cultural or educational institution is required; board, consultation or advisory experience is desirable.

Experience developing and guiding short- and long-term institutional plans that shape a sustained, multifaceted program of educational activities for public audiences.

Experience establishing frameworks for effective collaboration and partnerships across multi- format, cross-disciplinary projects.

We are open to non-traditional candidates from industry, academia, or other fields and institutions. An advanced degree is required.

To Be Considered:

Please submit your résumé and a cover letter that describes how your skill set and background aligns with the requirements and opportunities of the position. We also request a writing sample and a list of three (3) professional references.

Applications must be received by December 4, 2023. For more information and to apply, visit this link:

This is a full-time, Trust (non-Federal) position at IS-15, Step 1. The starting salary is $155,700 with an excellent benefits package. The job is based in Washington, DC, USA.

If you have further questions, please send your inquiries to: NMAHApplications@si.edu.

Sonin's "Shareholders and Stakeholders"

Joanne F Sonin has published Shareholders and Stakeholders: The Unrealised Promise of Company Law Reform in Post-War Britain (Bloomsbury/Hart):

This book explores the evolution of the shareholder in post-war Britain within the context of changing legal, political, economic, and social conditions. It examines how the post-war transformation of the shareholder body influenced relationships amongst stakeholders, impacting corporate behaviour and the legal and political efforts to govern industry and financial markets.

The book addresses a number of themes, including: 1) how the movements for democratisation influenced the treatment of shareholder interests and the calls for stakeholder representation; 2) how the rhetoric of change created a narrative that deflected from the lack of systemic legal reforms and protected the status quo; 3) how, in the post-war consensus environment, political positions on equity ownership de-radicalised, which proved unsustainable against a background of increasing political polarisation and industrial unrest; and 4) how the institutionalisation of the post-war shareholder body had profound effects on industry, the financial markets, and the economy.

With these themes as a foundation, the evolutionary arch of the post-war shareholder is examined, focusing on developments that influenced the treatment and perception of shareholder and stakeholder interests, including nationalisations, shareholder democracy, corporate purpose, and industrial democracy.

The book further considers how these post-war changes contribute to the post-1979 legal treatment of shareholder and stakeholder interests, including subsequent changes to the Companies Act and the development of corporate governance codes. Parallels to contemporary movements for stakeholder capitalism, corporate purpose, and ESG are drawn.

The historical analysis of the post-war shareholder provides a framework for considering current questions on shareholder primacy and the demands for systemic legal reforms. These missed opportunities for meaningful changes to the treatment of shareholder interests in UK company law serve as useful precedents for evaluating subsequent periods.

--Dan Ernst

A Symposium for James Oldham

James Oldham (GULC)

In 2020, James Oldham, the St. Thomas More Professor of Law and Legal History at the Georgetown University Law Center, took emeritus status after fifty years on the faculty.  Last January, with the help of a dozen legal historians, Georgetown Law celebrated his career with the symposium, “James Oldham: The Love and Labor of Archival Research.”  Last week, while we were away, revisions of the remarks delivered on that occasion were published in The Docket, the online supplement to Law and History Review.  Last week, many LHB readers will have spotted Gautham Rao’s announcement, as Editor-in-Chief of LHR, on social media of the publication of the symposium, but we note it here as well to ensure that our other readers know of it too.

–Dan Ernst

Carstensen on the Chicago Board of Trade Case

Peter Carstensen, University of Wisconsin Law School, has recently posted a classic study, which previously circulated as a working paper, of a landmark of antitrust history, The Content of the Hollow Core of Antitrust: The Chicago Board of Trade Case and the Meaning of the "Rule of Reason" in Restraint of Trade Analysis:

Louis D. Brandeis (NYPL)

Antitrust law's rule of reason for determining the validity of contracts in restraint of trade is enigmatic at best. A primary source of its contemporary Delphic character is the common understanding of the Chicago Board of Trade decision, one of the few cases in which the Supreme Court has upheld a restraint as reasonable. Using several potential meanings for the rule of reason, this study examines the factual context of the case, the record made by the parties, their legal and factual arguments to the Supreme Court, and the contemporaneous state of the law. The objective is to determine what rule of. reason was being employed in the case. The factual evidence established that the most likely explanation for the restraint was that it was to facilitate and protect from opportunistic exploitation the efforts of the members of the Board who were collectively creating a more efficient market system for certain classes of grain. Moreover, the legal arguments of the parties show that the characterization of the function of the restraint was a crucial issue in the case. Finally, a defense of reasonableness based on the ancillarity of a restraint to some other primary transaction or activity among the parties is entirely consistent with the then existing case law. In combination, these considerations show that the rule of reason employed in the case was not the open-ended balancing test commonly supposed, but a focused inquiry into the function of the restraint and its relationship to the joint productive activities of the parties. Therefore, when read in context of the record, argument and relevant case law, the Board of Trade decision does not provide a basis for making the rule of reason the unstructured hollow core of antitrust law. 

--Dan Ernst

CFP: Doing Business in the Public Interest

[We have the following CFP for the next annual meeting of the Business History Conference.  DRE]

Doing Business in the Public Interest: Annual Meeting of the Business History Conference.  
Providence, Rhode Island.  March 14-16, 2024.  Proposals due November 1, 2023

The Nobel Prize-winning economist Milton Friedman famously stated that “There is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits.” Yet the historical record is full of businesses acting consciously or unconsciously in a public interest.  

A public interest might include everything from labor practices, product safety, and environmental impact, to choosing sides on contentious social issues or weighing ties to questionable political regimes, to obligations in times of war or natural disasters. Some businesses consciously attempt to marry the embrace of a public interest with the profit motive, or feign a public interest to evade regulation. Others gamble that a short-term sacrifice in the name of public interest will result in long-term gain, while others sincerely believe that a business can do well by doing good. This calculus is further complicated by the fact that there is no single public interest either within or beyond the corporation.

Informed by the idea of doing business in the public interest, the BHC Program Committee invites sessions and papers that consider the relationship between businesses and public interest from a variety of different perspectives. We are especially interested in submissions that address diverse geographic locales and time periods; that analyze the different ways that business interactions with a public interest are shaped by questions of race, class, and gender; that investigate how entrepreneurs, firms, and communities have attempted to define and/or shape the public interest for their own benefit; that address the role of governments, politics, and power in affirming or denying the relationship between businesses and a public interest; that examine corporate practices within the context of corporate social responsibility, stakeholder theory, or a purpose-driven business model; that explore businesses that claim to set aside the public interest completely; and any number of similar subjects. The organizers also welcome proposals with innovative formats that promote discussion on the broader question of doing business in the public interest.

Proposals and Submissions.  While we encourage submissions to take up these themes, papers addressing all other topics will receive equal consideration by the program committee in accordance with BHC policy. Graduate students and emerging scholars in the field are particularly encouraged to attend. Graduate students and recent PhDs whose papers are accepted for the meeting may apply for funds to partially defray their travel costs; information will be sent out once the program has been set.

Proposals may be submitted for individual papers or entire sessions. Each presentation proposal should include a one-page (300 words) abstract and one-page curriculum vitae (CV) for each participant. Individual paper submissions will be combined into new sessions defined by themes chosen at the Program Committee’s discretion.

All session proposals should have a cover letter containing a title, a one-paragraph session description, and the names and affiliations of all presenters (to a maximum of four) and a recruited chair, as well as the contact information for the session organizer.

To submit a proposal, go [here.]

The deadline for receipt of all paper and session proposals is November 1, 2023. Notification of acceptance will be given by December 15, 2023. Information on registration and fees for participation and the provisional program will be announced at the beginning of February 2024. Everyone appearing on the program must register for the meeting.

Merges's "American Patent Law"

Robert P. Merges, University of California, Berkeley, has published American Patent Law: A Business and Economic History (Cambridge University Press):

Students and established scholars of intellectual property law often look for historical context when trying to understand the development and present-day contours of IP rules and systems. American Patent Law supplies this context, offering readers a comprehensive account of the evolution of the US patent system and patent doctrine beginning in 1790. From the technologies for harvesting wood and shoemaking in the earliest periods to computer software and biotechnology of the present, each chapter of the book covers the characteristic technologies of each historical era. The book also describes how businesspeople in each era acquired and enforced patents and used patents as the foundation of various business arrangements. This book is a landmark in the history of technologies, the US patent system, and the way private actors have deployed patents across American history.

Here is an endorsement:

"The product of Merges's decades of research on the patent system, this masterful study transcends the simple debate over patents as a stimulus to technological discovery and documents their role in helping ensure that inventions are put to productive use. Whatever your view of patents, you will find much that is new and intriguing in Merges's analysis of how patents have been used to obtain financing and organize enterprises to exploit promising new technologies."

Naomi R. Lamoreaux - Stanley B. Resor Professor of Economics and History, Yale University

–Dan Ernst

Legal History as Business History (and vice versa)

The Business History Conference starts on Thursday in Detroit.  The program is here.  One session is of particular interest for legal historians in the 5:00pm - 6:15pm on Friday: "Legal History as Business History (and Business History as Legal History)."  Joanna Grisinger, Northwestern University, chairs and is a panelist.  The other panelists are Justin Simard, Michigan State University; Evelyn Atkinson, University of Chicago; and Geneva Smith, Princeton University>

CFP: Global Correspondent Banking 1870–2000

[We have the following announcement.   DRE]

The global payments system represents the underlying plumbing of globalisation, determining the efficiency and security of cross-border payments for goods and services. Despite its fundamental importance surprisingly little is known about the evolution of this system, especially the dynamics of the network of bilateral bank relationships used for cross-border settlements across the past 150 years.

The European Research Council funded "Global Correspondent Banking 1870–2000" project would like to invite proposals from researchers at all levels for a conference on the evolution of the global payments system during the 19th and 20th centuries. Topics may include, but are not limited to:

• Correspondent banking, international banking networks and the development of the global payments system
• The changing shape, patterns and dynamics of international banking networks, and the impact of financial crises, world events and regulatory changes
• Banking technologies and the 'plumbing' of the international payments system, e.g. bills of exchange, ICT innovation
  
• Bank internationalisation strategies

The conference will be held at St Hilda's College, Oxford University on Thursday 23rd and Friday 24th March 2023.

Submission details: Proposed titles and paper abstracts of c. 300 words, along with a short biography of the author, should be submitted to glocobank@history.ox.ac.uk by Monday 2 January 2023. Participants will be notified in early January if their proposal has been accepted.

Conference organisers: Professor Catherine R. Schenk; Dr Marco Molteni; Dr Alena Pivavarava | GloCoBank Project

About GloCoBank: "Global Correspondent Banking 1870–2000" (GloCoBank) is a 5-year research project funded by the European Research Council (ERC) which seeks to identify and analyse the international network of correspondent banking relationships across the 20th century.

CFP: Tangier Statute Centenary Conference

[We have the following Call for Papers.  DRE.]

Tangier Statute Centenary Conference, 18 December 2023, Tangier.

On 18 December 2023 (i.e. a year from now), Willem Theus (KU Leuven – UCLouvain), Dr Michel Erpelding (University of Luxembourg), Prof Dr Francesco Tamburini (University of Pisa), Prof Dr Fouzi Rherrousse (University of Oujda), and [Geert van Calster] are organising a conference to celebrate the centenary of the Statute of Tangier, signed at Paris. Credit for kicking off the process goes to Willem.

This treaty, signed between France, Spain and the United Kingdom, and later joined by Sweden, Belgium, the Netherlands, Portugal and Italy, provided for the creation of a new legal entity: the International Zone of Tangier. Established by 1925, the Tangier Zone was formally an integral part of Morocco, but subject to a special regime that left most of its institutions under the joint administration of several Western powers. This special regime would last until Morocco’s independence in 1956, with some international elements remaining in place under a Royal Charter until 1960.

Thinking about the Zone triggers an extravaganza of thoughts on international commercial courts, conflict of laws, history of law and so much more. The call asks for papers on

The Politics of Individual Powers Towards/Within the Zone
Moroccan Attitudes and Policies Towards/Within the Zone and Its Institutions
The Interzonal and Foreign Relations of the International Zone17
Politics in the International Legislative Assembly
The Veto-Role of the Committee of Control
The Zone’s Legal System/Codes
The Operation, Case Law and Reforms of the Mixed Court
The Bar of the International Zone

Careers of Individual Lawyers/Officials/Businessmen/Intermediaries
The Tangier Banking System
The Ecclesiastical, Jewish and Sharia Courts
The Working and Case Law of the American Consular Court
The Spanish Civil War and its Impact on the Zone
The Architecture of the International Administrative Buildings of the Zone
Smugglers and the Law; and
The Legal System of the Transition Period (1956–1960)

The call and further details are available in Arabic, English, French, Italian and Spanish.

Atkinson on the "Affective" Responsibilities of Public Utilities

Evelyn Atkinson, a Postdoctoral Fellow at the University of Chicago, has posted Telegraph Torts: The Lost Lineage of the Public Service Corporation, which is forthcoming in the Michigan Law Review:

Central Telegraph Office Operator (NYPL)

At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, a significant minority of rural state courts deviated from the common law to impose liability for mental anguish on negligent telegraph corporations. They did so on the basis that telegraph companies bore an affirmative duty to protect the emotional well-being and family connections of their customers. In this, courts gave voice to the popular view, voiced by telegraph users and promoted by the companies themselves, of the telegraph corporation as a faithful servant of individual families and communities. In so doing, they embedded the historical and popular perception of the corporation as “servant” into the definition of “public service.”

This Article exposes the private law of the public service corporation and the non-economic dimension of the legal category of “public utility.” Current scholarship has focused on how turn-of-the-century jurists developed the category of “public utility” or “public service” corporation to justify state economic regulations that would otherwise infringe on corporations’ newfound constitutional rights. The telegraph cases reveal a concurrent and complementary development in tort law: the imposition of affective responsibilities on certain corporations as well. Illuminating this doctrine offers an example of how the public utility category could be mobilized to protect the emotional as well as economic well-being of the public today.

The article received the Kathryn T. Preyer Award for Early-Career Scholars of the American Society for Legal History.

--Dan Ernst

Baird's "Unwritten Law of Corporate Reorganizations"

Douglas G. Baird, University of Chicago Law School, has published The Unwritten Law of Corporate Reorganizations (Cambridge University Press, 2022):

The law of corporate reorganizations controls the fate of enterprises worth billions of dollars and has reshaped entire sectors of the economy, yet its inner workings largely remain a mystery. Judges must police a small and closed fraternity of professionals as they sit down at a conference table and forge a new future for a distressed business, but little appears to tell judges how they are to do this. Judges, however, are in fact bound by a coherent set of unwritten principles that derive from a statute Parliament passed in 1571. These principles are not simply norms or customary practices. They have hard edges, judges must enforce them, and parties are bound by them as they are by any other law. This book traces the evolution of these unwritten principles and makes accessible a legal world that has long been closed off to outsiders.

Here is (quite) an endorsement:

'When the leading bankruptcy scholar of the past generation writes his magnum opus, The Unwritten Law of Corporate Reorganizations is what we get. Reaching back through the centuries, with an especially acute lens on the period from the late nineteenth century to today, Douglas Baird flips the conventional wisdom about corporate reorganization on its head, demonstrating that the solution to financial distress has not been technical legal rules; it has been the unwritten practices of generations of bankruptcy insiders. Baird tells the story in a way no other legal scholar can, with remarkable historical discoveries, vivid anecdotes, subtle analysis, and a prose style that makes The Unwritten Law of Corporate Reorganizations the most unlikely of page turners. It is destined to be a classic not just of bankruptcy, but of American business history.'

David A. Skeel - S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School

--Dan Ernst

Moral Regulation of "Economy" in the Early Modern Atlantic World

[We have the following announcement.  DRE]

Symposium on Comparative Early Modern Legal History: Law, Theology, and the Moral Regulation of "Economy"  in the Early Modern Atlantic World.  Friday, March 25, 2022.  Newberry Library, Chicago.

The time is long past when the Western world's emergent commercial culture could be understood solely in terms of a Protestant ethos or the division between commerce and social morality occasioned by the Protestant Reformation. Scholarship has shown that "modern" ideas regarding commerce and "economics" had their roots in late-medieval Catholic thought and in neo-scholastic ideas that blended theology, justice, and law. It is clear as well that the rise of commercial thinking was not a linear intellectual development. Protestants and Catholics alike, facing the moral and social implications of novel "economic" relations, undertook deep theological and legal reflections regarding unbridled, competitive, exchange-oriented gain seeking. Many of these concerns were raised in the context of Europe's westward expansion to the New World. Usury, just price, interest, legal personality, slavery, reciprocity, property, cases of conscience, doubts regarding self-regulating mechanisms, concerns for the poor-all figured in a vibrant legal discourse that simultaneously elaborated and critiqued a set of ideas regarding human economy that became dominant between the sixteenth and nineteenth centuries. This conference will bring together historians, legal scholars, and social scientists to investigate law's historical role in enabling and regulating behaviors now recognized as foundational to modern economies.

Brian Owensby (University of Virginia) and Richard Ross (University of Illinois, Urbana-Champaign) organized "Law, Theology, and the Moral Regulation of 'Economy'  in the Early Modern Atlantic World."  The conference is an offering of the Symposium on Comparative Early Modern Legal History, which gathers every other year at the Newberry Library in Chicago in order to explore a particular topic in the comparative legal history of the Atlantic world in the period c.1492-1815.  Funding has been provided by the University of Illinois College of Law.  

Attendance at the Symposium is free and open to the public.  Those who wish to attend should preregister by sending an email to Richard Ross at Rjross@illinois.edu.  Papers will be circulated electronically to all registrants several weeks before the conference.

For information about the conference, please consult our website or contact Richard Ross at Rjross@illinois.edu or at 217-244-7890.  

[Schedule after the jump.]

Weekend Roundup

• Kenneth Mack, Harvard Law School, reviews Until I Am Free: Fannie Lou Hamer's Enduring Message to America (Beacon Press), by Keisha N. Blain, in WaPo. 
  

• Samuel Evan Milner, Ph.D and a J.D. candidate at the University of Chicago Law School, will discuss his soon to be published book, Robbing Peter to Pay Paul: Power, Profits, and Productivity in Modern America (Yale University Press), with Todd Henderson and Eric Posner under the auspices of Chicago Law’s Center on Law and Finance on December 15, beginning at 12:15 pm Central Time.  The book treats “the history of corporate governance, oligopoly, and labor” and its implications for the present.  Register here.
  

• 
  New online from Law and History Review and Cambridge Core: Extraterritoriality and Legal Belonging in the Nineteenth-Century Mediterranean, by Jessica M. Marglin. 

• Florida has cleared the Groveland Four (Florida Courier).  See John Q. Barrett's substantial post on the case to The Jackson List.
  

• ICYMI:  Stanford Law's notice of ASLH fellowships for Lawrence Friedman and Robert W. Gordon.  Sarah Seo calls for removing police from traffic law enforcement (Harvard Gazette).  Trust the Teachers, says David W. Blight (The Atlantic).
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Tippet on Enslaved Agents

Elizabeth Chika Tippett, University of Oregon School of Law, has posted Enslaved Agents: Business Transactions Negotiated by Slaves in the Antebellum South:

This article explores the law of agency as applied to enslaved workers in the antebellum South between 1798 and 1863. In particular, I examine legal disputes involving the delegation of agency power to enslaved workers. Southern courts generally accepted that an enslaved worker could serve as business agent for his or her slaveholder, which often meant binding a third party to a transaction negotiated or performed by an enslaved person.

These cases provide a window into business practices in slave states, where enslaved workers conducted business on behalf of slaveholders in a variety of contexts. While agency law served the economic interests of individual slaveholders – who could then avoid hiring paid labor for the same work – it also at times conflicted with the ideology of white supremacy and the associated southern laws meant to enforce racial dominance. Agency law bestowed the slaveholder’s power on an enslaved worker in transactions with third parties, often white businessmen who later sought to unwind the deal. The law of agency also conflicted at times with state laws that prohibited sales and business dealings with slaves. Nevertheless, southern courts frequently sided with slaveholders, who insisted that their powers could be delegated to enslaved workers.

--Dan Ernst

Priest's "Credit Nation"

Claire Priest, Yale Law School, has published Credit Nation: Property Laws and Institutions in Early America (Princeton University Press):

Even before the United States became a country, laws prioritizing access to credit set colonial America apart from the rest of the world. Credit Nation examines how the drive to expand credit shaped property laws and legal institutions in the colonial and founding eras of the republic.

In this major new history of early America, Claire Priest describes how the British Parliament departed from the customary ways that English law protected land and inheritance, enacting laws for the colonies that privileged creditors by defining land and slaves as commodities available to satisfy debts. Colonial governments, in turn, created local legal institutions that enabled people to further leverage their assets to obtain credit. Priest shows how loans backed with slaves as property fueled slavery from the colonial era through the Civil War, and that increased access to credit was key to the explosive growth of capitalism in nineteenth-century America.

Credit Nation presents a new vision of American economic history, one where credit markets and liquidity were prioritized from the outset, where property rights and slaves became commodities for creditors’ claims, and where legal institutions played a critical role in the Stamp Act crisis and other political episodes of the founding period.

The YLS notice of the publication is here.

--Dan Ernst

Haan, "Corporate Governance and the Feminization of Capital"

Sarah Haan (Washington and Lee) has posted "Corporate Governance and the Feminization of Capital." Here's the abstract:

Between 1900 and 1956, women increased from a small proportion of public company stockholders in the U.S. to the majority. In fact, by the 1929 stock market crash, women stockholders outnumbered men at some of America’s largest and most influential public companies, including AT&T, General Electric, and the Pennsylvania Railroad. This Article makes an original contribution to corporate law, business history, women’s history, socio-economics, and the study of capitalism by synthesizing information from a range of historical sources to reveal a forgotten and overlooked narrative of history, the feminization of capital—the transformation of American public company stockholders from majority-male to majority-female in the first half of the twentieth century, before the rise of institutional investing obscured the gender politics of corporate control.

Corporate law scholarship has never before acknowledged that the early decades of the twentieth century, a transformational era in corporate law and theory, coincided with a major change in the gender of the stockholder class. Scholars have not considered the possibility that the sex of common stockholders, which was being tracked internally at companies, disclosed in annual reports, and publicly reported in the financial press, might have influenced business leaders’ views about corporate organization and governance. This Article considers the implications of this history for some of the most important ideas in corporate law theory, including the “separation of ownership and control,” shareholder “passivity,” stakeholderism, and board representation. It argues that early-twentieth-century gender politics helped shape foundational ideas of corporate governance theory, especially ideas concerning the role of shareholders. Outlining a research agenda where history intersects with corporate law’s most vital present-day problems, the Article lays out the evidence and invites the corporate law discipline to begin a conversation about gender, power, and the evolution of corporate law.

The full article is available here.

-- Karen Tani

Eschelbach Hansen and Hansen on bankruptcy

Mary Eschelbach Hansen (American University) and Bradley A. Hansen (University of Mary Washington) have published Bankrupt in America: A History of Debtors, their Creditors, and the Law in the Twentieth Century with the University of Chicago Press. From the publisher: 

In 2005, more than two million Americans—six out of every 1,000 people—filed for bankruptcy. Though personal bankruptcy rates have since stabilized, bankruptcy remains an important tool for the relief of financially distressed households. In Bankrupt in America, Mary and Brad Hansen offer a vital perspective on the history of bankruptcy in America, beginning with the first lasting federal bankruptcy law enacted in 1898.

Interweaving careful legal history and rigorous economic analysis, Bankrupt in America is the first work to trace how bankruptcy was transformed from an intermittently used constitutional provision, to an indispensable tool for business, to a central element of the social safety net for ordinary Americans. To do this, the authors track federal bankruptcy law, as well as related state and federal laws, examining the interaction between changes in the laws and changes in how people in each state used the bankruptcy law. In this thorough investigation, Hansen and Hansen reach novel conclusions about the causes and consequences of bankruptcy, adding nuance to the discussion of the relationship between bankruptcy rates and economic performance.

 Praise for the book: 

“Bankrupt in America is a tour de force analysis of bankruptcy legislation and its impact over the twentieth century. It shows the interplay among state and federal legislation, economic conditions, social stigma, and the role of certain individuals in accounting for changes over time and across states. The authors offer an institutional and cliometric account that deftly draws on economics, history, law and political science. It will become the resource for many scholars, and I hope legislators.” - Lee J. Alston

“Mary and Bradley Hansen have presented us with a superb economic history of personal bankruptcy laws in the United States in the twentieth century. They have collected large quantitative databases and subjected them to careful statistical analysis—cliometricians will applaud—but they have also analyzed the interest-group politics that shaped the bankruptcy laws, and provided us with numerous stories of individuals coping with debt and bankruptcy which make the economic analysis come alive. Bankrupt in America will become a classic—the book that generations of economic historians will cite as the authoritative source. But the book is also timely, as we have come to realize that the social safety net, of which the bankruptcy laws form an important part, has become increasingly frayed.” - Hugh Rockoff

“Bankrupt in America is a wonderful combination of history, institutional analysis, and empirical economics, all in the same book. The book is full of important new insights into twentieth and early twenty-first century American consumer bankruptcy, including the authors’ remarkable discovery that the principal determinants of consumer bankruptcy have often been the supply of consumer credit and the stringency of state garnishment laws, rather than changes in bankruptcy law itself. Bankrupt in America is destined to become an empirically rigorous companion to classics of American consumer finance such as Lendol Calder’s Financing the American Dream.” - David Skeel

Further information is available here.

--posted by Mitra Sharafi