10.03.24

This post is part of a series highlighting some of our favorite entries from the archives. Read the rests of the posts here.

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What does history add to the study of law and political economy? As Karen Tani has observed, while history rarely provides an obvious road map to solving new legal problems, it can nevertheless help us understand why the legal landscape looks the way it does and illuminate the consequences of particular legal choices. It can also, Sam Aber & Caroline Parker have argued, reveal contingencies in the established order and make it easier to see potential alternatives. Finally, at its best and as some of the posts below demonstrate, history can offer detailed descriptions and analyses of domination’s force and show how social movements can obstruct, resist, and even bring to an end particular forms of domination. So without further ado, here are just a few of our favorite LPE & History posts.

The Making of a New Working Class – Gabriel Winant

Gabriel Winant’s *The Next Shift *is a historical study of care work, a subject so intimately tied up with law and political economy that the Blog published a symposium on it. In his opening post, Winant explains how industrial and labor policy reflected a too-narrow template of what constituted an industry, excluding healthcare workers from labor protections and producing a health care system that squeezed both patients and workers. As COVID-19 periodically resurfaces, each time sickening and disabling individuals, the lessons of Winant’s study—how the “crisis of care that we witness every day is both deeply historically rooted and, potentially, a lever of change for the millions of us whom the health care system touches”—becomes more urgent.

Tax Havens: Legal Recoding of Colonial Plunder – Vanessa Ogle

Vanessa Ogle, a historian of capitalism and empire, identifies a surprising connection between decolonization and the expansion of tax havens in the mid-twentieth century. To avoid the possibility of having to share the wealth they had extracted from their former subjects, white settlers in Kenya and Rhodesia sent their money to the Bahamas and British Channel Islands, while their counterparts in the French colonies of Tunisia, Morocco, and Algeria sent their money to Switzerland. Ogle recounts how lawyers took on this work, creating tax havens and using legal recoding mechanisms to make capital more mobile, such that foreign investment in stocks and bonds outstripped direct investments by the 1970s. These former colonies were thus left with the project of developing new states without much in the way of a tax base and in extensive arrears from white settlers’ refusal to tax themselves during the halcyon days of empire.

K-Sue Park on How She Teaches Property

For K-Sue Park, “the histories of conquest and enslavement are key to understanding our property system, both why property remains such a major driver of racial inequality and also how it explains the shape and the dynamics of the real estate market today.” In this interview, Park offers a précis of how she teaches the history of discovery doctrine through Johnson v. M’Intosh (1823) and how she teaches labor through the connection between John Locke and land acquisition. Park also describes her use of *The Antelope *to teach about the history of slavery. While these are not, Park explains, the extent of how one might teach about race in the property course, they offer focused descriptions of how to teach the histories of conquest and slavery, both of which are central to the law of property.

Historicizing Consumer Protection – Luke Herrine

If we hope to revive a moral economy framework for thinking about consumer protection law, Luke Herrine argues, we need to debunk the conventional story about what happened when the FTC supposedly imbued the notion of “unfairness” with too much moral content. According to this morality tale, when the FTC tried to use its unfairness authority to ban children’s advertising in the 1970s, the public recoiled, and Congress forced the FTC to develop a more objective standard for determining whether something is “unfair”—a standard grounded in consumer choice. As Herrine explains, however, what really happened was that the FTC was blindsided by an increasingly radical business lobby, and a faction of neoliberals within the agency took advantage of the moment to press their view of how the FTC should think about its authority.

The Young Lords: Building Power through Direct Action – Johanna Fernández

Creative and strategic militancy interrupts the normal functioning of society, shifts the terms of debate in public discourse, and expands the definition of the common good. Never has this been more evident than when the Young Lords barricaded themselves inside The First Spanish United Methodist Church in East Harlem. As Johanna Fernández describes, this Puerto Rican counterpart of the Black Panthers had simply been looking for a space to feed breakfast to poor children before school and the church was closed except for a couple of hours on Sunday. But after the priest denied their request, the Young Lords occupied the building and transformed it into a staging ground for their vision of a just society. They provided hundreds of free meals to children, ran a medical clinic and a lead and anemia testing drive, and used the Church as a headquarters for redress of community grievances and needs. After 11 days, the Young Lords abandoned the church; that same night, Republican governor Nelson Rockefeller proposed launching a breakfast program for 35,000 poor children in the city

The Long History of Anti-CRT Politics – Aziz Rana

Recent attacks on CRT often claim that the United States, since its founding, has been committed to principles of liberty and equality. As Aziz Rana reveals, however, this strategic use of American universalism, along with an explicit focus on public education, has been perhaps the dominant way of articulating white resistance to racial reform for the better part of a century. Since the early 20th century, such “civic nationalists” have argued that the enlightenment arrived in the US, as opposed to elsewhere, because of the culturally exceptional nature of the individuals that settled North America: Anglo-Europeans. And they have used such claims to justify restricting the immigration of disfavored groups and to promote an intense project of Americanization, in which those from less culturally “mature” societies were to be aggressively inculcated with American values.

Racial Myths, Market Myths, and the Policy Roots of Predatory Lending in 1970s Chicago – Beryl Satter

Beryl Satter’s contribution to the symposium on Mehrsa Baradaran’s The Color of Money focuses on the Housing and Urban Development Act of 1968. As Satter recounts, lenders skimmed profits at every step—first by charging origination fees on inflated mortgages and then by selling mortgages to a secondary market. By contrast, buyers were the victims of accelerated foreclosure schedules, the result of FHA-insured mortgages’ perverse incentives to vacate homes as quickly as possible in order for lenders to collected payment on defaulted loans. The structure of the FHA and HUD Acts created asymmetric structures that spurred lending to a captive market of Black and Latino borrowers, enacting through law and practice a siphon of wealth from minority borrowers to lenders.

Plantation Capitalism’s Legacy Produced the Maui Wildfires – Uʻilani Tanigawa Lum and Kaulu Luʻuwai

In the aftermath of the wildfires that ravaged Maui in August 2023, Tanigawa Lum and Lu’uwai explained that while drought and high winds were the proximate cause of the disaster, there was also a deeper human-focused explanation: the history of plantation capitalism. Haole (foreign) capitalists established sugar plantations across the islands throughout the late nineteenth century, decimating the local biodiversity in favor of monoculture sugarcane and imposing the colossal irrigation systems needed to sustain it. Even as the sugar plantations have closed, Tanigawa Lum and Lu’uwai explain, “the tourism industry has mirrored and reinforced the legacy of plantation capitalism through power structures that persist in disenfranchising Kānaka Maoli and other marginalized immigrant communities living in Hawaiʻi,” including the large Filipino population living on the islands and serving as the primary low-wage workforce. Through recent litigation and legal reform, however, Kānaka Maoli are working to restore Hawai’ian self-determination and make the islands sustainable again.

Constitutional Political Economy for a Democracy, Not an Oligarchy – William E. Forbath & Joseph Fishkin

In this introductory post to the symposium on their *The Anti-Oligarchy Constitution, *Forbath and Fishkin note that while their work has emerged amidst the blossoming movement for law and political economy, many in this movement are skeptical of the usefulness of constitutional argument, largely because they are skeptical of how such arguments play out in courts. While they share this skepticism of the judicial supremacy, they argue that for much of American history, constitutional arguments were not the exclusive province of courts. Instead, there was a vibrant  “democracy of opportunity” tradition that impelled legislators and executives to restrain oligarchy, build a broad, wide-open middle class, and construct a political economy that is inclusive across racial lines. By abandoning this tradition, late 20th century liberals mistakenly ceded the ground of constitutional argumentation to the right.

The Origins of the Nonprofit Industrial Complex – Claire Dunning

Despite receiving more revenue from the U.S. government than from private donors, the nonprofit sector is often cast as an independent realm that stands apart from both state and market. This picture, Claire Dunning argues, is not merely misleading, but dangerous, as it naturalizes the idea that the needs of certain citizens are best met by private supplement, rather than by more expansive, more equal government provision. As Dunning explains, the nonprofit industrial complex first emerged in the postwar city, where segregation persisted and demands for freedom and equality grew. While federal grants were, for a time, able to circumvent local governments committed to maintaining segregation, this outsourcing approach created organizations vulnerable to future budget cuts and cast the needs of those traditionally excluded from the full rights of citizenship as optional luxuries rather than essential functions of government.

What the Telegraph Can Teach Us About the Moral Economy – Evelyn Atkinson

Evelyn Atkinson argues that as we grapple with the law’s power to address corporations, one interesting yet largely forgotten set of cases can help us find our bearing: what are known as the “death telegram” cases. These suits, which occurred during the turn of the twentieth century, involved claims for emotional distress against telegraph corporations for failing to deliver telegrams involving the death or illness of a family member. Despite a long-established common law rule that mental anguish alone could not be recognized, the Courts made an exception because telegraph companies and patrons were understood not to be in an arms-length, impersonal market transaction, but one based on affective, emotional duties—in part because they were understood as “public service corporations.” This perspective, Atkinson suggests, can open up new ways of thinking about powerful, monopolistic corporations today.