In the fall of 2017, the Boston College Law School Legal History Roundtable started its 16th successful year. The Roundtable draws on Boston College Law School’s and Boston College’s strength and interest in legal history. It offers an opportunity for Boston College faculty and faculty from other area institutions, students, and members of the Boston College community to meet and discuss a pre-circulated paper in legal history. Meeting several times each semester, the Roundtable seeks to promote an informal, collegial atmosphere of informed discussion.
For the 2017-2018 academic year, Professor Mary Sarah Bilder, Professor Daniel R. Coquillette, Professor Frank Herrmann and Professor Daniel Farbman are conveners.
The Roundtable meets in the afternoon at 4:30 pm in the Library Conference Room of the Boston College Law School Library. Refreshments are available beginning at 4:15 pm.*
Papers will be available when appropriate before each presentation.
Monday, September 18
“The Two Primitive Ways of Imagining Property: Owning Land; Owning Human Beings” (a public lecture, co-sponsored with the Clough Center at 5 pm in Barat House)
Professor James Whitman, Yale University, Law School
Thursday, October 12
"The Corporate Constitution: The Origins of Written Constitutionalism in the Massachusetts Bay Company"
Nikolas Bowie, Reginald Lewis Law Teaching Fellow at Harvard Law School
A funny thing about the U.S. Constitution is that it's written down. Words might seem like an obvious feature of a constitution, but they're notably missing from much of the constitution of the United Kingdom, the country from which the United States seceded. Historians have often assumed that the quirky U.S. practice of putting constitutions into single documents has its origins in the corporate charters of the seventeenth-century trading companies that founded more than half of the thirteen original states. But, as historian Mary Bilder has written, it is surprisingly difficult to explain the change from corporate charter to modern constitution with precision and persuasive power. This article attempts to do just that, telling the story of an eighty-year lawsuit that forced the Massachusetts Bay Company to treat its charter's terms as Gospel.
Nikolas Bowie is the Reginald Lewis Law Teaching Fellow at Harvard Law School and a doctoral candidate in history at Harvard University. He is a graduate of Yale College and Harvard Law School, and a former clerk for Justice Sonia Sotomayor of the Supreme Court of the United States and Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit. He most recently served as the Berger-Howe Legal History Fellow at Harvard Law School.
Thursday, February 8
"Liquor Laws, Gay Bars, and the Politics of Common Sense"
Professor Anna Lvovsky, Harvard Law School
Queer nightlife in the early twentieth century thrived in a period of minimal scrutiny by municipal authorities. With the end of Prohibition in 1933, all that would begin to change, as newly established liquor boards worked alongside local police departments to enforce a host of regulations against serving gay customers in licensed bars. The vast terrain of anti-homosexual proceedings provides a rich window into queer life in the mid-twentieth century: a record of the many bonds of friendship, unusual commercial alliances, and acts of resistance that defined the gay social world in these years.
But that history is also notable for what it reveals about the dynamics of anti-homosexual regulation itself, and specifically how that project intersected with the broader public discourse about homosexuality in the mid-twentieth century. Typically requiring some proof that a bar owner not only served queer patrons but also did soknowingly, liquor proceedings against gay-friendly bars rose and fell on a very particular type of evidence: proof that a bar’s customers conformed to widespread public stereotypes of homosexuality. The boards’ police power over gay-friendly bars, in short, was fueled by a presumption of some shared public knowledge about deviance—the idea that most urban Americans harbored a common understanding about who the homosexual was and how he differed, in his conduct and appearance, from the ordinary man. In context, the ongoing litigation surrounding the boards’ anti-homosexual proceedings went far beyond a legal dispute about the liberties of gay men and women in the public sphere. It was also a cultural debate about the nation's prevailing understandings of deviant behavior: not only where the general public drew the boundaries of normal and abnormal male or female conduct, but also who the “general public” might be—whose opinions about sexual and gender norms defined the threshold of American normalcy during the Cold War.
Anna Lvovsky is an Assistant Professor of Law at Harvard Law School, where she teaches American legal history, the history of policing, criminal law, and evidence. She clerked for Judge Michael Boudin of the 1st U.S. Circuit Court of Appeals and for Judge Gerard E. Lynch of the 2nd U.S. Circuit Court of Appeals. Professor Lvovsky graduated magna cum laude from Harvard Law School, where she was articles co-chair of the Harvard Law Review and the recipient of the LGBTQ Writing Prize, and received her Ph.D. in the History of American Civilization from Harvard University. She earned a B.A. summa cum laude from Yale College.
Thursday, March 15
“You Cannot Live Your Dreams”: Lawyers within the New Deal State
Professor Daniel Ernst, Georgetown University Law Center
If, as the historian Kiran Klaus Patel observes, the New Deal was “but one of many national variations stressing selective state intervention, business-led cartelization, and a new role for labor and consumption in industrial relations,” it was nonetheless distinctive in its heavy reliance on lawyers recruited from a legal profession centered in civil society rather than the state. Working within agencies that were–in Gerald Berk’s words–more “bundles of rules, cognitive principles, or instruments” than “order-making machines,” New Deal lawyers tried, with varying success, to impose the hierarchy and autonomy of Weberian bureaucracies upon administrators. In the process, many also asserted their own understanding of an agency’s mission, notwithstanding the competing views of their ostensible clients.
This paper is one of three chapters on the National Recovery Administration from a book-in-progress on the lawyers of the New Deal. Launched with much ballyhoo in the summer of 1933, the NRA promulgated industrial codes of fair competition that promised to revitalize a devastated economy. In many industries, large firms used them to mulct consumers and hamstring business rivals until at last the U.S. Supreme Court ruled the relevant title of the National Industrial Recovery Act unconstitutional in Schechter Poultry (1935).
One might think from this history that NRA lawyers did not even try to assert their authority, but in fact they did. This chapter describes the recruitment of the NRA’s very able legal staff and one of its lawyer’s attempt to organize the lumber industry less as a cartel than a public utility. Her inspiration was Wisconsin progressivism and the writings of Oliver Wendell Holmes, Jr.
Daniel R. Ernst is Professor of Law at the Georgetown University Law Center, where he has taught since 1988. He is the author of Lawyers against Labor: From Individual Rights to Corporate Liberalism (University of Illinois Press, 1995), which received the Littleton-Griswold Prize of the American Historical Association, and Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (Oxford University Press, 2014). He received the American Society for Legal History’s Surrency Prize in 2009 and was a Fulbright Scholar in New Zealand in 1996, a John Simon Guggenheim Memorial Foundation Fellow in 2003-04, and a Law and Public Affairs Fellow at Princeton University in 2015-16.