Monday, June 15, 2020

The Cigarette: A Political History

The Cigarette: A Political History (Harvard UP, 2019) by Sarah Milov, co-founder of this blog, was recently reviewed by Reuel Schiller for Jotwell. Schiller writes that Milov's "narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state." Further excerpts:

Frankly, one could teach a course on twentieth-century legal history using this book as a textbook. It speaks to a broad range of subjects central to the interests of legal historians: the role of law in constituting capitalism; the interaction of law, gender, and race in the construction of social movements; the simultaneously emancipatory and constraining potential of framing policy preferences as rights; the profound role of the administrative state in structuring politics and policy; the rise of public interest litigation; the importance of understanding the legal history of agriculture, a field sorely neglected by legal historians. While different readers will find different analytic points particularly compelling, two stand out for me.

First, Milov’s narrative suggests the need to reevaluate the postwar state’s legal and political contours. For readers familiar with early New Deal policies such as the National Industrial Recovery Act and its industry-written “codes of fair competition,” American tobacco policy is familiar. It was “associationalism” — an interweaving of public and private power that obscured the extent to which private institutions acted as vehicles for public policy. In the traditional narrative of the New Deal, associationalism ended with the political and legal demise of the National Recovery Administration in 1935. Joining scholars such as Brian Balogh, Milov shows how, in fact, associationalism outlasted the NRA and became an integral component of postwar state. Far from being replaced by the light touch of Keynesian fiscal policy, Milov shows how producer-oriented associationalism melded with consumer-oriented Keynsianism to give an alliance of corporate and state interests an active role in structuring the post-war economy as it simultaneously created an illusion of statelessness.

Thursday, June 11, 2020

Chinese environmental regulation in the 1970s and '80s

Pollution in China (credit: Anjali aisha)
Just appearing online in Environment and History is an artcile by Yun Liu, "Voices of Protest Against Industrial Pollution in Hubei, China, During the 1970s and 1980s". The abstract:
This article examines local official records to find voices of protest against industrial pollution in Hubei, China, during its early reform era from the 1970s to the 1980s. Archival evidence from unpublished official documents indicates that to some extent local officers responded to citizens’ petitions against two main forms of industrial pollution: air pollution and soil pollution. Air pollution mostly affected urban residents but elicited more contention. Soil pollution got comparatively less exposure but caused more direct damage to impacted peasants. Both rural and urban victims of industrial pollution projected their own voices of protest typically by submitting group-authored and signed or anonymous whistle-blowing letters. Protests against pollution emerged with inter-group conflict negotiation in public or semi-public venues as well as in local investigation reports. The findings discussed here help to explain how local environmental governance evolved through increasing public awareness at subnational levels in China’s early reform years.

Monday, June 1, 2020

The environment in Dan Ernst's legal history exam

Dan Ernst (Georgetown Law) regularly posts a long exam question from his legal history course at Legal History Blog. This year's question was on federal grazing policy in the US. Some excerpts:
One of the Forest Service’s first projects was to subject stockmen used to roaming the mountains at will to the principles of forestry.  To develop and defend the new regulations, Pinchot hired, as chief legal officer of the Forest Service, an able and imaginative lawyer, who was personally indebted to him for, among other things, lending him money in the past.  The chief legal officer, who reported directly to Pinchot rather that the more politically connected Solicitor of USDA, soon worked out an ingenious constitutional justification for criminal enforcement of the grazing regulation, turning in part on the claim that the use of the public domain was not a private right but merely a privilege.  In 1908, Pinchot’s lawyer convinced the Department of Justice to bring a test case against a sheepherder named Pierre Grimaud.  A federal district judge ruled that the prosecution violated the nondelegation doctrine.  On direct appeal to the U.S. Supreme Court, the justices at first deadlocked, 4-4.  Pinchot was unfazed.  “I hold it to be the first duty of the public officer to obey the law,” he explained, “but I hold it to be his second duty, and a close second, to do everything the law will let him do for the public good.”  After Charles Evans Hughes and another justice joined the Court, Grimaud was reargued, and, in 1911, the Court upheld the prosecution.  The Forestry Service immediately brought scores of criminal prosecutions, and, by 1912, USDA could report that overgrazing in the forest reserves had ended.
In 1934, the Colorado Cattleman’s Association sent [Farrington] Carpenter to Washington, DC, to lobby Congress to add beef cattle to the Agricultural Adjustment Act’s list of “basic agricultural commodities” and permit them to enter into marketing agreements controlling cattle prices.  Having succeeded, Carpenter stopped by his Congressman Taylor’s office to say his goodbyes, just as the grazing act was having a hearing.  Realizing that Carpenter would be an effective witness and learning that he did not think the public domain should be turned over to the states, Taylor asked him to testify.  (Carpenter was no fan of national power, but he believed that once the land was devolved to the states, different grazing interests would capture different state legislatures and produce an unworkable patchwork of regulation.)  Before the House committee, Carpenter spoke for small-scale cattle stockmen such as himself, plagued by nomadic sheep herds and pushed off public domain by larger cattle outfits.  Federal control was the small stockman’s only chance to avoid being “completely wiped out of existence,” he testified.
When, a few months later, [Secretary of the Interior] Ickes’s undersecretary offered Carpenter the directorship of the new Grazing Division created within the department to enforce the Taylor Grazing Act, Carpenter warned that sheep herders would object to his appointment because he was known as a champion of cattlemen in his corner of Colorado.  He claimed also to have said that he did not intend to create “a great centralized bureau” like the Forest Service, “run by Eastern people who know little about the public domain.”  After consulting a government official who once represented sheep herders, Ickes decided Carpenter would treat them fairly.  Whether Carpenter’s other warning registered with the Interior Secretary Ickes is not known. 

Wednesday, May 27, 2020

Video of the colloquium on the legal history of epidemics

This past Monday's colloquium on the legal history of epidemics went well, I thought. The speakers (Mario Ascheri, Tamara Morsel-Eisenberg, Noga Morag-Levine, Alex Chase-Levenson, Felice Batlan, and John Witt) were really interesting, and the questions from the audience led to some more interesting discussion.

The video of the event (with transcript) is available here.
Work on the bibliography of the legal history of epidemics is ongoing - please send me your suggestions for further sources.

Tuesday, May 19, 2020

Colloquium: Legal history of epidemics

(Update: Video of the colloquium here.)

Next Monday, 25 May, the David Berg Foundation Institute for Law and History at Tel Aviv University will host an online colloquium on the legal history of epidemics. 

The program:

Session 1 (15:00 GMT/11:00 EDT):

Mario Ascheri (Rome 3): Treatises on Plague Law in the Italian Renaissance
Tamara Morsel-Eisenberg (Harvard): Early Modern Jewish Legal Sources on Epidemics
Noga Morag-Levine (Michigan State): Pestilence and Governance in Early Modern England
Alex Chase-Levenson (Penn): Lazaretto Law in the Early Nineteenth-Century Mediterranean
Felice Batlan (Chicago-Kent): Rights, Quarantines, and Inequality in U.S. History
John Witt (Yale): American Contagions: A Short History of Law and Democracy in Crisis

Session 2 (16:15 GMT/12:15 EDT):

Roundtable discussion: Issues and challenges in the legal history of epidemics
Moderator: David Schorr (Tel Aviv)

To receive a link and password, please register by emailing the address in the image above.

(The Berg Institute's bibliography on the topic is here.)

Monday, May 4, 2020

The law of necessity

Ely Cathedral and the fens
A new article by John Collins in Past & Present, "The Long Parliament and the Law of Necessity in Seventeenth-Century England", highlights the importance of claims of necessity in the history of environmental law. As necessity is also one of the foundations of much of the law made around historical epidemics, the topic is particularly timely. An excerpt from the article (notes omitted):
Narratives of perpetual necessity aroused concern in the early seventeenth century. Sir Edward Coke, for example, was worried about the power that the commissioners of sewers possessed over property in the Case of the Isle of Ely of 1609. The famed jurist heard these arguments while he was chief justice of the common pleas, a position he had obtained in 1606. This case was just one of several involving the ambitious undertakers of the English fens who sought, through mechanical improvements, to obtain control over the flood waters that engulfed the low-lying regions around Ely, in order to create productive, and enclosed, farmland. Their pursuits put them squarely at odds with those who wanted to keep the fens as they were so they could continue to enjoy public rights in the marshlands, with inhabitants from surrounding regions who did not want to pay the taxes required for the building of the pumps and dykes, and sometimes with landholders who had parts of their property expropriated so that the dykes could be built.
Legal cases arose over the statutes that authorized the commissioners of sewers. As David Chan Smith has so carefully shown in his recent book on Edward Coke’s jurisprudence, conflicts arose over ‘how taxes should be assessed to pay for sewer works and whether the commissioners had the power to direct the creation of new works’. The particular background to the Ely case involved a group of projectors who, in 1605, were going to drain the fens around Ely and pay for it either through direct or indirect expropriation of lands. While the commissioners of sewers decreed the project legal, the 1607 parliament had refused to sanction it.
In a reversal of previous judgements friendly to the discretionary powers of the commissioners, Coke attempted to bind them through a restrictive definition of necessity. For Coke, the commissioners of sewers could not tax English subjects unless there was an ‘inevitable necessity’ that mandated the construction of dykes, walls or other technologies to defend the land against floodwaters. Innovation was not included in Coke’s narrative of necessity. He only allowed taxation or the expropriation of property for the repair of pre-existing dykes or walls. For Coke, it was only for the sake of a structure that defended the English countryside against inevitable danger — a danger that was not presently visible but would assuredly manifest itself in the future, as the English knew from flood patterns and ocean forces through hundreds of years of experience — that the commissioners of sewers could transform the property of English subjects to achieve the preservation of the commonwealth. If any type of actual innovation was going to be made, the houses of parliament needed to approve it.
In many ways, Coke was an exceptional figure within the English legal community, as those judges who ruled before him on the various statutes of sewers and those who read after him, most notably Robert Callis, did not agree with his restrictive understanding of necessity. For Callis, who gave a reading on Henry VIII’s statute on sewers in 1622 at Gray’s Inn, Coke’s ruling did not fully appreciate the equity embedded in the powers given to the commissioners of sewers. Because their work was of such a ‘great and urgent necessity and use for the good of the whole Commonwealth of the Realm’, the intent ‘maybe extended in exposition beyond the letter of the words’. An equitable reading of the statute allowed judges to ‘inlarge the letter of the Law in the sence of construction, because it tends so much to the advancement of the Commonwealth’. For Callis (who in all likelihood stood to gain from the drainage projects), the soul of the law allowed for new projects even while its strict wording did not. Callis’s reading, at least in 1622, was the legal victor. Stuart lawyers in general allowed a relatively wide latitude when it came to the application of the law of necessity. Utility and improvement, as well as preservation, fitted into their narrative of necessity, which in turn provided those empowered to utilize such narratives a broad remit to generate novel positive laws.

Thursday, April 30, 2020

Levelling the Lake

Thank you to everyone who's assisted in putting together the list of sources on the legal history of epidemics; this is an ongoing project so please do send me any ideas for sources.

I'm also going to try catching up on the big backlog of posts I haven't had time to do, beginning with today's notice of Daniel Macfarlane's review for the Canadian Historical Review of Jamie Benidickson's new book, Levelling the Lake: Transboundary Resource Management in the Lake of the Woods Watershed (UBC Press, 2019). Macfarlane writes that the book
is a deep dive into a complex area defined by borders (both hydrological and political). Surveying the last half of the nineteenth century to the present, Benidickson unravels this complicated story of resource management in the Rainy-Lake of the Woods area, which spreads across northwestern Ontario, southeastern Manitoba, and northern Minnesota (including the border jog referred to as the Northwest Angle).
One of Canada's leading environmental law scholars, Benidickson has made a career of writing about Ontario's water. Part of UBC Press's Nature/History/ Society series, this book can be characterized as environmental, legal, policy, and institutional history. The central focus of Levelling the Lake is the history of environmental governance, chiefly on the Canadian, and Ontario, side of this watershed. The narrative moves back and forth between different places and scales: Kenora and Fort Frances, Queen's Park and federal Cabinet meetings, corporate boardrooms, and International Joint Commission (IJC) deliberations. This inquiry required research in multiple archives as well as the use of printed primary sources such as court cases and IJC reports. Benidickson manages to delineate the overlapping jurisdictions and policies while simultaneously weaving together various sectors that are often ignored or compartmentalized by authors attempting research projects at similar scales: hydropower, water levels, pollution, fisheries, mining, recreation, forestry, pulp and paper, and so on.
Levelling the Lake painstakingly peels back the various layers and imprints that make up the palimpsest of overlapping and contested boundaries in this region. Benidickson is an ideal interlocutor, teasing out the strings of intertwined claims and histories in ways that shed light on modern resource disputes. To make the necessary legalese more accessible, the author effectively employs metaphors and analogies, such as using the game of musical chairs to simplify the muddled process of acquiring water-power sites in the region (63). Characterizing jurisdictional and border issues as "polycentric," the author does not get bogged down in theory or concepts. Thus, this book will appeal to an interested general audience as well as to environmental and resource scholars in a variety of academic disciplines spanning the social sciences and humanities; at the same time it is a must-read for historians of northern Ontario. 

Monday, April 20, 2020

Sources on the legal history of epidemics

I've been busy with other things for a while and haven't had a chance to post, but I've just put up the first draft of a list of sources on the legal history of epidemics.

Please pass it on to anyone who might be interested, and please email me with any sources or suggestions!

Wishing everyone good health,

Title page of Girolamo Previdelli, De Peste et ejus privilegiis (Bologna, 1528)
(courtesy of Bayerische StaatsBibliothek)

Friday, December 20, 2019

The Roman public trust doctrine

I've often expressed impatience with the throwaway references to Justinian (often misconstrued as an adjective!) that are so ubiquitous in discussions of the public trust doctrine. Now comes Bruce Frier's review of Domenico Dursi's Res Communes Omnium. Dalle necessit√† economiche alla disciplina giuridica (Jovene, 2017) to make some order for those of us for whom Roman law is something of an enigma. Frier writes, explaining his own view (I'm omitting most citations and footnotes):
By the Late [Roman] Republic, the general idea of res communes was already well known in Roman culture. Plautus’ comic play Rudens, thought to date from c.190 B.C., features a fisherman (his occupation is important!) proclaiming that “the sea is unquestionably common to all persons” (mare quidem commune certost omnibus) in a longer speech that emphasizes fish as belonging to their captor.... [T]he concept becomes much more familiar in Latin sources from the Late Republic and Early Empire. Forms of common property are most often the air and the sea, but Cicero adds in the seashore (litus) as well. Although the familiar idea of common property was further elaborated in Early Imperial poetic or Stoic theories on the origin and development of human culture, there is no sign that these theories had any pronounced influence on the law; certainly they lead to no demonstrable legal conclusions.
By the Late Republic, a second cultural element had emerged: a widespread and often expressed disquiet about the startling proliferation of villas along the coast of central Italy and the Bay of Naples.... The architects of these villas, capitalizing on recently-discovered hydraulic concrete, often put down substructures extending beyond the shore and out into the sea — a phenomenon quite commonly referred to in legal texts, and one of particular concern to poets such as Horace who perceived the structures as morally hubristic. More exciting, however, is the discovery that not a few of the maritime villas incorporate fishponds so large that they were plainly intended to produce fresh fish not just for the villa, but for local markets.... [T]hese fishponds may well have brought the villa-owners into direct confrontation with more humble local fishers. 

Friday, December 13, 2019

Hartog on property in land and water

Monk's Ditch in the Gwent Levels, Wales, land reclaimed in the Roman period
As part of his stint as a guest blogger at Legal History Blog, Dirk Hartog recently blogged about his own early work on waterfront development in New York City and his encounter with Debjani Bhattacharyya’s Empire and Ecology in the Bengal Delta: The Making of Calcutta. Some excerpts, followed by a quibble of mine:
I spent many hours reading and rereading those waterlot deeds [granted by the eighteenth century Corporation of the City of New York]. I wrote many pages that unpacked much of the arcane property law doctrine that waterlot grants incorporated. In the end, I managed to put together what at the time felt to me like a satisfying portrait of how a waterlot grant exemplified early modern governance. I argued that corporate leaders were solving a fundamental problem of the time: about how to achieve necessary public purposes — like building wharves and docks for a seafaring city and also street construction and cleaning —without either a municipal workforce or a capacity to levy taxes. By exchanging waterlots for services and development by individual proprietors, the corporation enlarged the borders of the city, and it laid the foundation for what would become a global port, a world city.
In those days, I relentlessly situated those waterlot grants within the history of the corporation, implicitly situating the “municipal corporation” of New York City within the history of the business corporation. My attention was always focused on the public-private split, and little else. Which is not really surprising, given how much attention the public-private split held at that time in what I was reading, in the contemporary and argumentative field of legal history.