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 for 2018-2019. 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 and the State: Pisa, 1150–1200”
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.
“Executive Power, Officer Indemnity, and A Government of Laws, Not of Men: A Re-Reading of The Charming Betsy and Little v. Barreme”
To scholars of constitutional law, John Marshall’s 1804 opinion in Little v. Barreme generally stands for Congress’s power to limit the executive’s wartime powers, although scholars disagree over precisely where Marshall intended the line between congressional and presidential authority to lie. To international law scholars, meanwhile, Marshall’s opinion in The Charming Betsy — issued just four days before Little — is known for Marshall’s assertion that courts ought to interpret statutes to accord with international law wherever possible, a pronouncement often described as mysterious, even Delphic. But despite the cases’ temporal proximity and subject matter alignment — both cases address the question of officer immunity in wartime — few scholars read them together. In this article, I argue that the solution to both cases’ interpretive puzzles lies in previously overlooked textual and contextual clues, and that to fully understand Marshall’s logic in either opinion, we must explore them in tandem. When read together, I argue, the significance of both The Charming Betsy and Little v. Barreme becomes clear: two early instances of the Court’s ongoing efforts to define what, exactly, it meant to be a government of laws, not of men. Did the executive have the power to legalize an otherwise unlawful act, a possibility Marshall seemed to entertain? Or did a government of laws mean that only Congress had the power to immunize an officer against the consequences of his own tortious act — the power to sever right from remedy? Viewed in this light, Marshall’s feat in Murray and Little appears analogous to his accomplishment in Marbury v. Madison, decided only a year earlier: a creative interpretation of the bounds of statutory authority designed to avoid an inter-branch conflict over an unlawful executive act without undermining the small-c constitutional balance that placed the nation's lawmaking power not with the courts, and not with the executive, but with Congress.
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.
“Historiographical Origins of Originalism”
For decades now, virtually every Republican politician, activist, and voter has agreed that the most important question about the Constitution is what it meant to its authors and ratifiers. Democrats, over the same period, have rejected originalism with similar unanimity. This union between political party and constitutional theory is unique in American history. Methods of constitutional interpretation have always been political. But only in the 1980s did they become partisan. A core and under-appreciated reason for this development was the contingent interaction of historiographical change and institutional developments in the conservative legal movement. New approaches among professional historians to the Founding period and Reconstruction helped legitimate a version of originalism attractive to conservative lawyers, academics, and political entrepreneurs just as the processes for creating and legitimating political knowledge became partisan. The result is a unproductive partisan divide over how our foundational law should be discussed.