In the fall of 2018, the Boston College Law School Legal History Roundtable started its 17th 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 2018-2019 academic year, Professor Mary Sarah Bilder, Professor Daniel R. Coquillette, Professor Frank Herrmann and Professor Daniel Farbman are conveners.
The Roundtable usually meets several times during the semester 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.*
In 2018-2019, our first Roundtable will be jointly sponsored with the BC Law School Tax Policy Workshop and therefore meet at noon.
Papers will be available when appropriate before each presentation. Username and password: bclhroundtable
Thursday, September 13 (12:15 pm)
Ajay K. Mehrota, Professor of Law and Executive Director, American Bar Foundation and Northwestern University Law School
Ajay K. Mehrotra is the Executive Director and a Research Professor at the American Bar Foundation (ABF) and Professor of Law at the Northwestern University Pritzker School of Law, and an Affiliated Professor of History at Northwestern University. He is the author of Making the Modern American Fiscal State: Law, Politics and the Rise of Progressive Taxation, 1877-1929 (New York: Cambridge University Press, 2013), which received the 2014 best book award from the U.S. Society for Intellectual History. He is the co-editor (with Isaac William Martin and Monica Prasad) of The New Fiscal Sociology: Taxation in Comparative and Historical Perspective (New York: Cambridge University Press, 2009). His writings have also appeared in student-edited law reviews and interdisciplinary journals including Law & Social Inquiry, Law & History Review, and Law & Society Review. Mehrotra received his B.A. in Economics from the University of Michigan, his J.D. from Georgetown, and his Ph.D. in American History from the University of Chicago.
The VAT Laggard: A Comparative History of U.S. Resistance to the Value-added Tax
When one examines how modern nation-states generate public revenue, the United States quickly emerges as a striking outlier compared to other advanced industrialized countries. Even a cursory review of statistics from the Organization for Economic Cooperation and Development (OECD) shows that the United States is out of step with the rest of the developed world in the amount, and the way, it raises tax revenue. One reason for this apparent American tax exceptionalism is the absence of a U.S. national consumption tax. Whereas nearly all other OECD countries have a national consumption tax, frequently in the form of a value-added tax (VAT), the United States remains one of the few countries without a consumption tax at the federal level.
This project explores how and why the United States has historically rejected national consumption taxes. Nearly all developed countries, and many in the developing world, have some type of a national consumption tax, frequently in the form of a value-added tax (VAT). The United States is an exception. This project focuses on the fundamental question: why no VAT in the United States? To address this overall research question, this project explores three key historical periods. The first is the 1920s, when tax theorists in the United States and Germany first began to formulate and propose crude forms of value-added taxes. The second critical period is the decades of the mid-twentieth century. During the 1940s, the United States once again seriously considered but rejected national consumption taxes aimed at raising revenue for World War II. Similarly, after the war, during the U.S. occupation of Japan, American economic experts designed and implemented a proto-VAT for Japan. The third crucial period is the 1970s and ‘80s. During these decades, American lawmakers considered and even supported a U.S. VAT, but eventually withdrew their support or were ousted from political office. At the same time, other developed countries, such as Japan, Australia, and Canada, began to move towards a national VAT. By focusing on these three key historical periods from a comparative perspective, this project seeks to study how and why the U.S. has failed to adopt national consumption taxes, such as the VAT.
Tuesday, October 2 (4:30 pm)
Mitra Sharafi, Professor of Law, University of Wisconsin-Madison
Mitra Sharafi is Professor of Law and Legal Studies at the University of Wisconsin–Madison, with History affiliation. She is the author of Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge University Press), which won the Law and Society Association’s Hurst Prize in 2015. She is currently working on her second book project, “Fear of the False: Forensic Science in Colonial India” as a Davis Center fellow at Princeton’s History department (fall 2018) and an ACLS Burkhardt fellow ’18 (National Humanities Center, 2020-1).
This paper explores the disbarment proceedings of South Asian and West African members of the Honourable Society of the Inner Temple, one of the four Inns of Court for barristers in London, circa 1900. Law students from across the British Empire attended the Inns by the late nineteenth century, and the three disciplinary cases of A.K. Ghose and S. Krishnavarma (from India) and Rotimi Alade (from the Gold Coast, later Ghana) shed light on the imperial legal profession’s views of racial and cultural difference; deception, education, and “good character”; and loyalty to British rule.
William Sullivan, Professor of Law and Executive Director, American Bar Foundation and Northwestern University Law School
William P. Sullivan is the Raoul Berger-Mark DeWolfe Howe Legal History Fellow. A graduate of Princeton and Yale Law School, he is a Ph.D. candidate in the departments of classics and history at the University of Chicago, where his dissertation is entitled, “Relevance in the Civil Law Tradition: The Emergence of the Roman-Canon Law of Positions.” He was a Legal History Fellow at Yale Law School in 2016-2017 and a law clerk for Judge José A. Cabranes of the United States Court of Appeals for the Second Circuit in 2017-2018.
The law/fact distinction became more distinct in both England and the Continent during the twelfth century. The traditional explanation for this change is jurisprudential: jurists and judges sought to wall off a finite domain of legal concepts from the infinite variety of factual situations in which those concepts could be applied. In this paper I propose that the jurisprudential account of the law/fact distinction has overlooked an important external factor: state formation. Using twelfth-century court records from the city-state of Pisa in northern Italy, I argue that a clear distinction between law and fact arose when judicial authorities began experimenting with a technique of coercing litigants to reveal facts about the subject of their dispute. I link this development to a process of state formation in mid- to late twelfth-century Pisa, and I conclude by suggesting that in medieval Europe the emergence of a sharp law/fact distinction required both a transformation in the ontology of law and a consolidation of political power.
Jane Manners, Bernard and Irene Schwartz Fellow, New-York Historical Society
Jane Manners studies US legal history, with a focus on American legal institutions, legislation, federalism, and local government law. During the 2018-19 academic year she is a Bernard and Irene Schwartz Fellow at the New-York Historical Society. She received her PhD in history from Princeton in 2018 and her JD and BA from Harvard. Her work has been supported by the American Council on Learned Societies, the American Society for Legal History, the American Historical Association, and the Hurst Institute at the University of Wisconsin Law School. Between college and law school, Jane worked as a teacher, a journalist, a philanthropic grant maker, and a presidential campaign staffer.
“Individualized Lawmaking and the Problem of Legislative Discretion”
Private bills. Special legislation. Monopoly grants. Equitable consideration. Claims. Petitions. Memorials. All terms relate to the nineteenth century American practice of individualized lawmaking, in which lawmakers regularly heard and responded to individual appeals for legislative intervention — for favors, exceptions, special treatment. Historians and other scholars who have investigated such individuated lawmaking have done so largely as a work of recovery, emphasizing the discordance of the practice to our modern ears to unsettle our contemporary constitutional understanding. If we accept the universal applicability of legislation as fundamental to the rule of law, these scholars ask, how can we make sense of this earlier institutional arrangement? These scholars have examined in illuminating detail both the conception of the legislative role underlying the practice as well as the process by which the United States, at both the federal and state levels, gradually abandoned it, shifting the consideration of individual cases out of the legislature and into the executive and judicial branches.
What these scholars have paid less attention to, however, is the reason the shift occurred. Generally, treatments of nineteenth-century individuated lawmaking explain the gradual abandonment of the practice as either the natural and inevitable result of concerns for efficiency and fairness or the product of partisan politics. Generally, too, histories of the practice, whether approving or disapproving, treat its various labels as interchangeable — all references to the same forgotten legislative modus operandi. This essay seeks to complicate both assumptions. It argues that more than efficiency, fairness, and partisan politics were at stake, and that by digging into the subtle differences in meaning among the practice's terms, we find a nation still in the process of working out its theories of legislation and of government, and still struggling to balance a concern for individual rights and for individuated lawmaking with a commitment to the public good.
Logan Sawyer, Professor of Law, University of Georgia
Logan Sawyer is an Associate Professor of Law and Adjunct Professor of History at the University of Georgia. He earned his JD and PhD from the University of Virginia and is visiting at Harvard Law School this Spring semester.
"Originalism from the Soft Southern Strategy to the New Right: The Constitutional Politics of Sam Ervin Jr."
Between 1954 and 1974 there was no more prominent advocate of originalism in political life than North Carolina Senator Sam Ervin, yet he is invisible in accounts of the theory’s past. Ervin’s embrace of originalism, however, deserves more attention than this because it shows the theory is more than an academic response to the perceived excesses of the Warren Court and more than a tool to advance the constitutional concerns of the New Right. The Reagan Administration’s embrace of originalism in the 1980s undoubtedly propelled the theory to new heights, but Ervin shows how originalism helped create the New Right coalition.
As one of the primary architects of the segregationist ‘soft southern strategy,’ Ervin used originalism both to criticize the Warren Court and to justify opposition to civil rights legislation. He did not, however, find originalism an established theory of constitutional interpretation, ready-made for those purposes and he used the theory to do more than cloak white supremacy. During his first decade in the Senate, Ervin’s opposition to civil rights legislation led him to build an originalist approach to constitutional interpretation on a foundation of broadly admired American legal and political traditions, including some that were embraced by the Warren Court. He then used that theory to support a political ideology aimed to unite racial reactionaries, conservatives, and moderates from across North Carolina and the country into an anti-civil rights legislative coalition. He and his allies ultimately failed to stop the 1964 Civil Rights Act and 1965 Voting Rights Act, but the interpretive theory Ervin developed helped construct an emerging conservative coalition by legitimating a shift by Southern conservatives to a political ideology that emphasized individualism and property rights.