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
Professor Anna Lvovsky, Harvard Law School (title and abstract forthcoming)
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.