This article highlights the origin of the employment at-will rule by providing the contextual contrast of Reconstruction free labor republicanism. To date, no work has situated the doctrine’s emergence in the heady Reconstruction discussions of labor reform that immediately preceded it. This article briefly summarizes how the at-will rule functions to subordinate employees. The article then elaborates upon the pervasive, overarching anti-subordination themes of the Radical Republican debates in Congress as well as their specific initiatives targeted at equalizing power disparities. Further, the article examines the paradox that the Thirteenth Amendment’s minimum constitutional guarantee that workers have a right to quit became doctrinally embedded in the at-will rule’s justification. Third, the article explores the contemporary post-bellum republican alternatives, both in treatises and in the dissent’s critique in the seminal case of Payne v. Western and Atlantic Railroad. While one treatise writer, Horace Wood, advanced the at-will rule, another, James Schouler, imbued with a sense of republicanism, advanced a different rule of duration based upon custom and pay period. Finally, the article examines an early critique that at-will circumstances were so insubstantial as to fail to amount to any contract at all. Overall, this article provides a different perspective from which to view the doctrine’s emergence, that is, as a retrenchment of railroads’ authority over their day laborers at the very time that Reconstruction’s egalitarian reform efforts were fading. Utilizing contract terminology, the constitutionally guaranteed right to quit was bootstrapped into a justification for the prerogative of employers to fire employees at will. Eventually, this legal construct became the predominant employment doctrine, and it continues today.
{"title":"The Anti-Republican Origins of the At-Will Doctrine","authors":"Lea VanderVelde","doi":"10.1093/AJLH/NJAA020","DOIUrl":"https://doi.org/10.1093/AJLH/NJAA020","url":null,"abstract":"\u0000 This article highlights the origin of the employment at-will rule by providing the contextual contrast of Reconstruction free labor republicanism. To date, no work has situated the doctrine’s emergence in the heady Reconstruction discussions of labor reform that immediately preceded it. This article briefly summarizes how the at-will rule functions to subordinate employees. The article then elaborates upon the pervasive, overarching anti-subordination themes of the Radical Republican debates in Congress as well as their specific initiatives targeted at equalizing power disparities. Further, the article examines the paradox that the Thirteenth Amendment’s minimum constitutional guarantee that workers have a right to quit became doctrinally embedded in the at-will rule’s justification. Third, the article explores the contemporary post-bellum republican alternatives, both in treatises and in the dissent’s critique in the seminal case of Payne v. Western and Atlantic Railroad. While one treatise writer, Horace Wood, advanced the at-will rule, another, James Schouler, imbued with a sense of republicanism, advanced a different rule of duration based upon custom and pay period. Finally, the article examines an early critique that at-will circumstances were so insubstantial as to fail to amount to any contract at all. Overall, this article provides a different perspective from which to view the doctrine’s emergence, that is, as a retrenchment of railroads’ authority over their day laborers at the very time that Reconstruction’s egalitarian reform efforts were fading. Utilizing contract terminology, the constitutionally guaranteed right to quit was bootstrapped into a justification for the prerogative of employers to fire employees at will. Eventually, this legal construct became the predominant employment doctrine, and it continues today.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"6 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73525473","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
If reading books like Nate Holdren’s new Injury Impoverished is what happens to mid-career scholars, then I’m all for aging. Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. He has a live mind, which is animated by his ambitious analytic project to make sense of the law governing the risk of bodily injury for those in the labor market around the turn of the twentieth century. According to Holdren, work accidents were (and are) at their core a form of labor exploitation that reveals the injustices of capitalist labor markets. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating the mass violence of labor exploitation. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren identifies new forms of power in the law of work accidents – but he attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way tort law actually worked. He calls for impossibly demanding forms of justice from the law, including forms of personal recognition that are beyond the capacity of human systems to achieve. He misses the ways in which workers coopted new forms of accident law and turned them to their own interests. And his single-minded Marxian focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work accidents.
{"title":"Radical Histories versus Liberal Histories in Work Injury Law: Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and the Law in the Progressive Era","authors":"J. Witt","doi":"10.1093/ajlh/njaa025","DOIUrl":"https://doi.org/10.1093/ajlh/njaa025","url":null,"abstract":"If reading books like Nate Holdren’s new Injury Impoverished is what happens to mid-career scholars, then I’m all for aging. Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. He has a live mind, which is animated by his ambitious analytic project to make sense of the law governing the risk of bodily injury for those in the labor market around the turn of the twentieth century. According to Holdren, work accidents were (and are) at their core a form of labor exploitation that reveals the injustices of capitalist labor markets. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating the mass violence of labor exploitation. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren identifies new forms of power in the law of work accidents – but he attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way tort law actually worked. He calls for impossibly demanding forms of justice from the law, including forms of personal recognition that are beyond the capacity of human systems to achieve. He misses the ways in which workers coopted new forms of accident law and turned them to their own interests. And his single-minded Marxian focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work accidents.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"35 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75251892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In many constitutions, constitutional duties appear alongside constitutional rights. However, the history of constitutional duties, unlike the history of constitutional rights, is a neglected topic. This article is a case study of the history of constitutional duties in Israel. The article documents the appearance of duties in Israeli constitutional texts and debates in the 1950s and shows that the interest in duties was connected to the view that a major role of constitutions was to serve as educational, rather than legal, texts. The article then analyzes the decline of the duties discourse in Israel, pointing to the 1960s as the watershed decade in which duties disappeared. Finally, the article discusses a number of possible factors that led to the waning of the notion of constitutional duties, focusing specifically on the juridification of Israeli society. Fluctuations in interest in constitutional duties, the article concludes, are connected to changing understandings of the nature of constitutions, and, more broadly, to shifts in the relative importance of law and lawyers in society.
{"title":"The Rise and Demise of Constitutional Duties in Israel","authors":"Assaf Likhovski","doi":"10.2139/ssrn.3710390","DOIUrl":"https://doi.org/10.2139/ssrn.3710390","url":null,"abstract":"\u0000 In many constitutions, constitutional duties appear alongside constitutional rights. However, the history of constitutional duties, unlike the history of constitutional rights, is a neglected topic. This article is a case study of the history of constitutional duties in Israel. The article documents the appearance of duties in Israeli constitutional texts and debates in the 1950s and shows that the interest in duties was connected to the view that a major role of constitutions was to serve as educational, rather than legal, texts. The article then analyzes the decline of the duties discourse in Israel, pointing to the 1960s as the watershed decade in which duties disappeared. Finally, the article discusses a number of possible factors that led to the waning of the notion of constitutional duties, focusing specifically on the juridification of Israeli society. Fluctuations in interest in constitutional duties, the article concludes, are connected to changing understandings of the nature of constitutions, and, more broadly, to shifts in the relative importance of law and lawyers in society.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"79 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75088301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Michael A. Schoeppner, Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America","authors":"A. Hammann","doi":"10.1093/ajlh/njaa022","DOIUrl":"https://doi.org/10.1093/ajlh/njaa022","url":null,"abstract":"","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"46 2 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78137176","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Thomas J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law's First Professionals","authors":"J. Hudson","doi":"10.1093/AJLH/NJAA016","DOIUrl":"https://doi.org/10.1093/AJLH/NJAA016","url":null,"abstract":"","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"13 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84533008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the local legal histories of two “liberty of contract” constitutional disputes prior to Lochner in the South and West: Allgeyer v. Louisiana (1897) and Holden v. Hardy (1898). Drawing inspiration from the new history of American capitalism literature that has recently rethought the genesis of the modern American economy through a Southern and Western lens, this article argues that we have yet to fully grasp the relationship between uneven state development politics and economic rights jurisprudence under American constitutional law. In so doing, I build a new narrative that takes into account development politics, Louisiana lawyers with roots in the Confederacy, and Western Populist constitution-makers to rethink the origins and development of a doctrine that arguably continues to shape the modern world.
{"title":"The Southern and Western Prehistory of “Liberty of Contract”: Revisiting the Path to Lochner in Light of the New History of American Capitalism","authors":"Gabrielle E. Clark","doi":"10.1093/ajlh/njaa014","DOIUrl":"https://doi.org/10.1093/ajlh/njaa014","url":null,"abstract":"\u0000 This article examines the local legal histories of two “liberty of contract” constitutional disputes prior to Lochner in the South and West: Allgeyer v. Louisiana (1897) and Holden v. Hardy (1898). Drawing inspiration from the new history of American capitalism literature that has recently rethought the genesis of the modern American economy through a Southern and Western lens, this article argues that we have yet to fully grasp the relationship between uneven state development politics and economic rights jurisprudence under American constitutional law. In so doing, I build a new narrative that takes into account development politics, Louisiana lawyers with roots in the Confederacy, and Western Populist constitution-makers to rethink the origins and development of a doctrine that arguably continues to shape the modern world.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"41 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80043899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyzes the legal history of U.S. citizenship for American Samoa and examines why American Samoa remains the only U.S. unincorporated territory that U.S. citizenship has not been extended to by Congress. The article examines legislation from the 1930s that would have extended U.S. citizenship to Samoans, but failed to pass in Congress due to opposition from the U.S. Navy, the effects of the Great Depression, and the racism of some U.S. lawmakers. The last parts of the article explore hearings that were held in the immediate years after World War II in which naval leaders and U.S. lawmakers expressed a willingness to extend citizenship to American Samoa for Cold War propaganda imperatives. These hearings ultimately did not lead to the extension of U.S. citizenship. By the early years of the Cold War some Samoan leaders had petitioned Congress against the extension of citizenship to American Samoa for fear that citizenship would lead to the destruction of Samoan cultural autonomy. The legal history of U.S. citizenship for American Samoa from 1899 to 1960 illuminates the various meanings citizenship can have and the disparate ways citizenship can be used by different people in the context of empire. In American Samoa, citizenship was a powerful concept that colonized people used to make claims for equal inclusion and full membership within a political community; it was a tool that the U.S. government used in strategic ways to legitimate imperialism; and it was a status with the power to destroy cultural autonomy.
{"title":"Citizenship in Empire: The Legal History of U.S. Citizenship in American Samoa, 1899-1960","authors":"R. Dardani","doi":"10.1093/AJLH/NJAA013","DOIUrl":"https://doi.org/10.1093/AJLH/NJAA013","url":null,"abstract":"\u0000 This article analyzes the legal history of U.S. citizenship for American Samoa and examines why American Samoa remains the only U.S. unincorporated territory that U.S. citizenship has not been extended to by Congress. The article examines legislation from the 1930s that would have extended U.S. citizenship to Samoans, but failed to pass in Congress due to opposition from the U.S. Navy, the effects of the Great Depression, and the racism of some U.S. lawmakers. The last parts of the article explore hearings that were held in the immediate years after World War II in which naval leaders and U.S. lawmakers expressed a willingness to extend citizenship to American Samoa for Cold War propaganda imperatives. These hearings ultimately did not lead to the extension of U.S. citizenship. By the early years of the Cold War some Samoan leaders had petitioned Congress against the extension of citizenship to American Samoa for fear that citizenship would lead to the destruction of Samoan cultural autonomy. The legal history of U.S. citizenship for American Samoa from 1899 to 1960 illuminates the various meanings citizenship can have and the disparate ways citizenship can be used by different people in the context of empire. In American Samoa, citizenship was a powerful concept that colonized people used to make claims for equal inclusion and full membership within a political community; it was a tool that the U.S. government used in strategic ways to legitimate imperialism; and it was a status with the power to destroy cultural autonomy.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91059544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Sam Erman, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire","authors":"Taylor L Frazier","doi":"10.1093/ajlh/njaa010","DOIUrl":"https://doi.org/10.1093/ajlh/njaa010","url":null,"abstract":"","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"38 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73045327","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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