Symposium on Tomlins, "The State and the Unions"

Labor History recently published a symposium in honor of the twenty-fifth anniversary of The State and the Unions, by Christopher L. Tomlins (UC Irvine). The articles are available only to subscribers, but the introduction, by Craig Phelan, is open access, as are the abstracts.

Here, for example, is the abstract for the contribution by Jean Christian Vinel (Université Paris Diderot) (whose book, The Employee, we mentioned earlier this week):

The thrust of this article is to review the evolution of the historiography of American labor law since the publication of Christopher Tomlins' widely celebrated The State and the Unions (1985). More than an isolated effort, Tomlins' critique of New Deal labor law was part of a broader analytical paradigm which should be called the ‘critical synthesis’. Dominating the field until the mid-1990s, the critical synthesis owed a part of its success to the crisis of labor history. Then, it gradually receded as labor unions continued their steep decline and historians of labor rekindled their faith in American liberalism and the Democratic Party. In analyzing the rise and fall of the critical synthesis, the article thus lays bare all the factors – scientific, social, and political – that contribute to the making and unmaking of analytical paradigms in the political history of labor. Finally, in doing so, the article places the debate on the Employee Free Choice Act in historical perspective.

Here is the abstract for Tomlins's response, titled "The State, the Unions, and the Critical Synthesis in Labor Law History: A 25-Year Retrospect":

This article responds to Jean-Christian Vinel’s assessment of the ‘critical synthesis’ whose proponents created labor law history as a new and flourishing field of scholarship in the decade after 1978. Vinel accords my book, The State and the Unions (1985) a key role in the development of this new field. Here, I situate my book in relation to the critical synthesis, and assess the capacity of critical legal scholarship to address the current parlous state of the U.S. labor movement. I look to current labor historians to engage with and build on the work that the labor law historians undertook.

Farber on McGarity on Regulatory Policy Since 1980

Daniel A. Farber, University of California, Berkeley School of Law, has posted The Thirty Years War Over Federal Regulation, a review of Thomas A. McGarity’s Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival (Yale University Press, 2013).  Here is the abstract:

Using the evidence Tom McGarity assembles in his recent book 'Freedom to Harm', this paper examines regulatory history during the thirty-plus years since Reagan became president. Although the available evidence presented is necessarily incomplete, it suggests strongly that the opponents of regulation have had only mixed success. Legislative efforts to roll back the regulatory state have given rise to pitched political battles, but in the end have not infrequently ended in modest expansions of agency authority. Opponents of regulation have had more luck in the rule-making process, where they have succeeded in delaying or killing regulatory efforts or in weakening the final regulations. They have successfully joined advocates of “smarter regulation” in some of these efforts. Yet, in the end, the body of federal regulation has continued to grow almost unabated. The biggest success of the opponents of regulation has come through budget cuts and policy changes that have weakened enforcement, but even there, other factors may have helped soften the impact on the beneficiaries of regulation. Altogether, despite the frustrations of environmentalists, this has also been a dismal period for opponents of the regulatory state.

Grossman on the FDA and the Rise of the Empowered Consumer

Lewis A. Grossman, American University, Washington College of Law, has posted FDA and the Rise of the Empowered Consumer.  Here is the abstract:

This paper traces the historical evolution of a view of consumers as informed, rational, and rights-bearing decision makers, and the corresponding diminution of FDA’s role as a paternalistic gatekeeper acting in conjunction with medical and scientific experts to prevent products and information from reaching the public.

The relationship between consumers and FDA-regulated products has changed dramatically since the mid-1960s. A half century ago, FDA treated consumers as passive and ignorant. Accordingly, the agency gave them relatively little latitude to make their own choices among products and denied them much of the information they could have used to inform such choices. By comparison, today’s consumers of food and drugs are much more empowered to make their own, unmediated choices among a wider variety of products, guided by a deluge of labeling and advertising information.

The paper examines this phenomenon against a background of three societal and cultural trends during the past half century: Americans’ declining trust in major institutions, the “rights revolution,” and the dramatic expansion of health care information accessible to consumers. It then examines a variety of specific regulatory developments during this period of change. In a section on food, the paper considers reforms in standards of identity and nutrition labeling, the rise of health claims as facilitated by the First Amendment, and various popular movements for freedom of choice with respect to food ingredients and dietary supplements. The paper then turns to drug regulation, examining the rise of patient labeling and direct-to-consumer advertising of prescription drugs, the tidal wave of “switches” from prescription to over-the-counter status, and the birth of social movements seeking to influence FDA drug approval policy. The paper concludes by speculating on whether this new model of consumer is a permanent one.

Tracking Down Oral Histories on Regulation

[We have the following query about what looks to be a very useful project. My suggestion is the Oral History Program of the Historical Society of the D.C. Circuit.]

At Duke University, history professor Ed Balleisen is leading a project to create an online gateway to regulatory oral histories—oral histories with regulators, the regulated, or political actors who were instrumental in creating or changing regulatory agencies or frameworks. As part of the project, we are working to catalog and tag the most relevant oral histories to make them more accessible as well as to help sort through what interviews have been conducted and the work that remains to be done. We have identified several caches, such as those at the SEC Historical Society and the Columbia Center for Oral History (e.g. its FCC project), but we hope to draw on the knowledge of the blog's readers to target individual interviews or other rich collections of oral histories regarding regulatory agencies, whether in the U.S. or elsewhere, at any level of government. While we're especially interested in creating an extant database of digitally accessible oral histories, do also let us know if you're aware of relevant oral histories that remain in analog without a digital transcript. Please e-mail any tips, leads, or general thoughts on the project to william.goldsmith@duke.edu, and much obliged.

Memorial Day Roundup

• Scott Douglas Gerber, Ohio Northern University Law, discusses his plans for his second book, which will take up "British American colonies and Comparative Subnational Constitutionalism," on I-CONnect.

• "Not Dick Whitney!"  Thus spake FDR upon learning of the defalcations of the haughty Wall Street financier and fellow Grotonian, news of which which delivered the New York Stock Exchanges into the hands of William O. Douglas's SEC.  Whitney now has a biography: Malcom MacKay's Impeccable Connections.  To see what the shouting was about, consult, via the website of the SEC Historical Society, newsreels of Whitney riding high and low.

• Earlier we noted the publication of Edward Cavanagh’s Settler Colonialism and Land Rights in South Africa. We now learn that it will have a launch at The Space, 139 Bank Street, Ottawa, on the evening of Thursday, June 6.

• From the Caribbean Journal: “How did English colonial law develop into the legal system of Jamaica today, and what has that meant for Jamaica’s development? A new book by attorney and law professor David P. Rowe attempts to answer these questions, examining the history of Jamaica’s constitutional jurisprudence and its relation to the country’s maturation over the decades.  Aspects of Jamaican Constitutional History, co-authored by Rowe and University of Miami School of Law graduates Niyala Harrison and Jason Frederick Emert, takes a look at the history of Jamaica’s political economy through the lens of the constitution." 

Lytton's "Kosher"

Timothy D. Lytton, the Albert and Angela Farone Distinguished Professor of Law at Albany Law School, has published Kosher: Private Regulation in the Age of Industrial Food, with the Harvard University Press.

Generating over $12 billion in annual sales, kosher food is big business. It is also an unheralded story of successful private-sector regulation in an era of growing public concern over the government’s ability to ensure food safety. Kosher uncovers how independent certification agencies rescued American kosher supervision from fraud and corruption and turned it into a model of nongovernmental administration.

Currently, a network of over three hundred private certifiers ensures the kosher status of food for over twelve million Americans, of whom only eight percent are religious Jews. But the system was not always so reliable. At the turn of the twentieth century, kosher meat production in the United States was notorious for scandals involving price-fixing, racketeering, and even murder. Reform finally came with the rise of independent kosher certification agencies which established uniform industry standards, rigorous professional training, and institutional checks and balances to prevent mistakes and misconduct.

In overcoming many of the problems of insufficient resources and weak enforcement that hamper the government, private kosher certification holds important lessons for improving food regulation, Timothy Lytton argues. He views the popularity of kosher food as a response to a more general cultural anxiety about industrialization of the food supply. Like organic and locavore enthusiasts, a growing number of consumers see in rabbinic supervision a way to personalize today’s vastly complex, globalized system of food production.

A blurb:

“Kosher is one terrific book. It’s a wonderfully entertaining account of the squabbles, finger-pointing, and cutthroat competition that turned kosher certification from scandalous corruption to a respectable—and highly profitable—business. Today, if a food is labeled kosher, it is kosher, which is more than can be said of most claims on food labels. You don’t have to be Jewish to appreciate the fun in Timothy Lytton’s presentation of an unusually successful case study in business ethics.”—Marion Nestle, New York University, author of Food Politics

 Lytton discusses the subject here. TOC after the jump.
Read more »

Financial Scandals and the Legislation They Inspired

The SEC Historical Society announces the opening of a new gallery in its “virtual museum,” Wrestling with Reform: Financial Scandals and the Legislation They Inspired.  Curated by Robert K.D. Colby of History Associates, Inc., it examines five financial scandals and resulting legislation: (1) Burr Brothers, and the Kansas Blue Sky Law of 1911; (2) Constantino Riccardi, and the Arizona Securities Law of 1951; (3) Illegal corporate payments, and the Foreign Corrupt Practices Act of 1977; (4) Ivan Boesky, Dennis Levine, Michael Millken, and the Insider Trading and Securities Fraud Enforcement Act of 1988; and (5) Enron and WorldCom, and the Sarbanes-Oxley Act of 2002.

Janson & Yoo, "The Wires Go to War: The U.S. Experiment with Government Ownership of the Telephone System During World War I"

Hot off the presses of the Texas Law Review: "The Wires Go to War: The U.S. Experiment with Government Ownership of the Telephone System During World War I," by Michael A. Janson (Federal Communications Commission) and Christopher S. Yoo (University of Pennsylvania). Here's the abstract:

One of the most distinctive characteristics of the U.S. telephone system is that it has always been privately owned, in stark contrast to the pattern of government ownership followed by virtually every other nation. What is not widely known is how close the United States came to falling in line with the rest of the world. For the one-year period following July 31, 1918, the exigencies of World War I led the federal government to take over the U.S. telephone system. A close examination of this episode sheds new light into a number of current policy issues. The history confirms that natural monopoly was not solely responsible for AT&T’s return to dominance and reveals that the Kingsbury Commitment was more effective in deterring monopoly than generally believed. Instead, a significant force driving the re-monopolization of the telephone system was the U.S. Postmaster General, Albert Burleson—not Theodore Vail, president of AT&T.  It also demonstrates that universal service was the result of government-imposed emulation of the postal system, not, as some have claimed, a post hoc rationalization for maintaining monopoly.  The most remarkable question is, having once obtained control over the telephone system, why did the federal government ever let it go?  The dynamics surrounding this decision reveal the inherent limits of relying on war to justify extraordinary actions.  More importantly, it shows the difficulties that governments face in overseeing industries that are undergoing dynamic technological change and that require significant capital investments.

The full article is available here.

Weekend Roundup

•  R.I.P. Robert V. Remini, an historian known for his work on Andrew Jackson, Henry Clay, Daniel Webster, and the U.S. House of Representatives. A nice obituary, by Richard B. Bernstein, is available here, on H-Net. 

• Gujurat National Law University has announced plans for an “Indian Legal History Museum,” to depict 2,500 years of India’s legal past. 

• Congratulations to the Yale Law Library Rare Books Blog on the occasion of its fifth anniversary.

• New on the website of the “virtual museum” of the SEC Historical Society are two items.  First, the Society has added the papers of a committee that codified and clarified judicial definitions of insider trading, thus laying the groundwork for the proposed Insider Trading Act of 1987.  At the invitation of Senator Donald Riegle (D-Michigan), Harvey Pitt, a former SEC General Counsel, convened a working committee of American Bar Association officials, Senate aides, and former and current SEC staff to develop a "plain-language, workable overhaul" of insider trading law. Second, it has added two films: the silent "The Nation's Market Place," which looks at investing in the summer of 1928; and the 1934 film “Where the Money Goes in the United States.” 

• R.I.P. James M. Nabrit, III, civil rights lawyer and activist. An obituary, from the New York Times, is available here. (Hat tip: H-Law) 

• From the New York Review of Books: Robert Darnton on the launching of the National Digital Public Library.

• From Dissent -- A profile of Jill Lepore, "Microhistorian." (Hat tip: Arts & Letters Daily) 
  

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