Well, thank you for the second day of our meeting, our conference. I'm delighted to see you all again. I did some of you for the first time. Thank you so much for coming and thank you to your enthusiasm yesterday and I hope today. Very shortly, Reise Gromov from University of Virginia will kick off today's proceedings of our first panel. I simply wanted to ask you politely if we can try to take with us the cups and containers and things that have been brought into the auditorium. It probably makes it more pleasant for us during our day here if we take them out at the breaks and it undoubtedly improves our relations with the event staff and with the managers of this facility. So thank you all very much. Welcome. Good morning. I hope you all had a restful evening. I'm ready for a second exciting day. I want to say, as Chris said, I'm Reise Golugov. I'm from the University of Virginia. I teach in the law school and the history department. I just want to say thank you to Chris for envisioning and organizing this conference. It's been really stimulating and also to Captain. It's just been great and it's been full of the kind of intellectual discourse both in and out of the formal sessions that one crosses the country for. So our panel today is called Interpretations, Law, Polity, Economy. I'm going to introduce everyone right now and then we'll speak in order that we're sitting. So first we have Ritu Burla whose paper is called Law as Economy, Convention, Corporation, Currency. Ritu is Associate Professor of History at the University of Toronto. Her first book was called Stages of Capital, Law, Culture and Market Governance in Late Colonial India. She has written recent articles on the practice of history as the work of translation, critical approaches to area studies, and the relationship of ethics and culture in discourse and markets in India. She's also the co-coordinator of a series of global discussions on M.K. Gandhi and Ethics and Trans-Nationality, which is under the aegis of the Sister Cities Project of the Society for Transnational Cultural Studies and its Journal of Public Culture. Next to Ritu is Roy Kreitner whose paper is called Money in the 1890s, The Circulation of Politics, Economics and Law. Roy Kreitner is on the Tel Aviv University Faculty of Law and he's currently the Lillian Goli Naval Fellow at Radcliffe Institute. His first book was Calculating Promises, The Emergence of Modern American Contract Doctrine, and it won the American Society for Legal History's Cromwell Book Prize. He's also won several fellowships and his current book project is on from promise to property, from populism to expertise, The Political Career of the Dollar, 1862 to 1913. After Roy we have Chris Schmidt and his paper is called Conceptions of Law in the Civil Rights Movement. Chris is the Assistant Professor of Law at the Chicago Kent Law School and he's a visiting scholar at the American Bar Foundation as well as an Associate Editor of Law and Social Inquiry, the Journal. And he holds a number of fellowships as well. His current book project is called Creating Brown the Board of Education, Law, Ideology and Constitutional Change, 1941 to 2007. Barbara Welke is our last paper. It is called Owning Hazard in the Modern American Marketplace, Law as Tragedy and Experimental Play in Two Acts. Barbara is Professor of Law and Associate Professor of History at the University of Minnesota, where she's also the Director of the Program in Law and History. Her first book, Recasting American Liberty, Gender, Race, Law and the Railroad Revolution, 1865 to 1920, won the AHA's Littleton Griswold Prize and she has done many other things, one that I think is worth mentioning is she has twice chaired the Hearst Summer Institute, which has a big impact on junior scholars. And she has a book that just came out, Law, Citizenship and Personhood in the Law 19th Century, The Borders of Belonging, and she has two works in progress, one of which the title is still a little bit in flux, one possible title is Owning Hazard in the Modern American Marketplace, and another is Tragedy and Rights in the Modern American Marketplace, and she has a second book in progress, A Consuming Passion, Product Liability and the Rights Revolution in 20th Century America. Finally, our commentator is Maury Horowitz. I'm not sure he needs an introduction, but I'll give you a brief one anyway. He is the, not that anybody asked it, but you know, he's the Charles Warren Professor of American Leo History at the Harvard Law School. His first book, The Transformation of American Law from 1780 to 1860, won the Bancroft Prize. It seems silly for me to mention it as if you don't know it, but I do. And the sequel, The Transformation of American Law 1870 to 1960, The Crisis of Legal Orthodoxy, far more successful than most sequels we see, you know, if you think about the movies. So those are the two seminal works. In addition, he has written The Warren Court in the Pursuit of Justice, and he's currently at work on The Warren Court Volume in the Holmes Device. So that's our panel. I will be keeping time and moderating afterwards, and I look forward to some good discussion. I am going to, oh, I'm in a strange place where I can sort of read this, okay. I'm going to just give you some brief background since I'm speaking about colonial India, and I wanted to just point to some big interventions that I've made already in the book, and then I will be sort of elaborating and thinking through and extracting to think about the problem of law as economy. So just very briefly, let me thank again Chris and Catherine for thinking of me. Perhaps not an obvious choice for this conference, but I appreciate not being an obvious choice.  So I did two things empirically in the book, and that is first to chart the standardization of market practice in late 19th and early 20th century India. So I'm interested in the ways in which this thing that we call the market, that abstraction that we live with every day, whose health we check in the newspapers every day, is produced historically, and the ways in which a colonial history in fact tells us quite a bit about how we all today inhabit that thing called the market. So the market in the context where we don't have a social contract, we don't have a constitution, and we certainly don't have citizens, but we have subjects, I argue the market is, the institutionalization of that abstraction that we call the market is the site for thinking the public. And so we see this in the legal archive again and again and again, at the exchangeability of the word public with the name the market or the economy. And so to return to the theme that I strategically introduced yesterday in my question, the problem of embeddedness, what I'm trying to do is ask the question, what happens when the market is institutionalized as the model for social relations? And when this thing that is an abstraction, the market, is institutionalized as the model for social relations, in what ways do categories of culture, and particularly culture as a name for politicized identities, in what ways does culture become an effect of that abstracting or disembedding to use Carl Polanyi's term on the market? So the first part of what you need to know is that there is this barrage of legislation in jurisprudence that institutionalizes and standardizes market practice. The second part of the story is vernacular capitalists. Groups that operate in India that are upon which the colonial state is dependent for colonial extraction and commodity production and credit are groups that I call vernacular capitalists. Capitalists that operate through kinship, extended family, caste. And the question is, how does law translate these vernacular practices? These are practices that are embedded in society that do not easily fall into the registers of the law. For example, the distinction between the liberal distinction of public and private. One way in which I talk about these groups is to talk about an extensive negotiability that they produce. An extensive negotiability between the symbolic capital of kinship and the capital flows of finance and commerce. That's one way in which I kind of describe and code, if you will, that thing that we can't catch, their embeddedness in society that the law will always mistranslate. And so three themes that are the themes that are the title of this paper, convention, which sort of calls to me the question of customary practice. How do you read and translate that which is done consistently changing, shifting convention? Corporation, which for me marks the problem of the corporate. And I don't just mean the joint stock company, though that's actually part of the project. I mean, it's quite central to colonial Indian history. I'm interested in this conversation that 19th century legal theorists and sociologists vapor perhaps most famously, but also von Gehrke, our early 20th century theorist from Maitland. This question of corporate life or what Weber calls consociation. I'm interested in the ways in which legal modernity produces one model for the corporate, writes over all of these different forms of embedded corporate life in order to really pose the corporation as a model for all social association. And that's part of the story I'm telling in the section on the Indian Companies Act, which I'll warn you, I'll have to leap over fairly quickly. And finally currency. Currency to me is not just a question about negotiable instruments, which is the empirical site that I'm going to examine, but also the problem of law and temporality. And so for me, the question of law as economy, and that's sort of the meta theoretical thing I'm trying to do here, is really think about the ways in which an intervention, a law as intervention must draw us in a kind of critical historical way to the problem of historicity. That historicity which at the ground is radical difference. The fact is that every moment in time is absolutely different from every other moment in time. Narrating historically is always going to be a mistranslation. And the problem of law and the politics of temporizing and temporality I think illustrates the mistranslation's intentions in the relationship between histories and narrative and language and the ground of history radical as duality. So these are some of the big themes I'm playing with. So I think I'm going to read now. I hope many of you have looked at the paper, but why not do a refresher? I'll read it and I'm going to skip over bits that I hope I can summarize quickly. Okay. So recent now I've got about 20 minutes. 25 minutes? 20 minutes. Okay. Ah, 23 minutes. Okay. So we might say that today, especially in the United States, we're experiencing the painful effects of an orthodox faith of an economy as law. That is in the free market as the law of the universe. The cosmology is so powerful that it claims authority over all forms of ethical political agency. Coding citizens as consumers, life as management, and children as investments. The success of neoliberal visions of law and economy or more accurately law and economics rests in their coding of law as rational economic practice on the one hand and on the other, rather more invisible hand, the ability to institute that abstract spectral thing that we call the economy as the natural origin of law itself. If the presupposition of such approaches to law and economy is that they are distinct spheres and systems, we might say that the telos of such approaches lies in the hope that one day law and economy will merge and become one, thus offering the powerful messianic vision of the meeting of desire which is thought to motivate all self-interested economic transactions and law or a collapse of coercion and choice. A collapse of coercion and choice in everyday conventions. This utopian market vision evokes the imperial prophecy of Thomas Babington Macaulay, the first law member of the Governor General's council under the British East India Company. He was the motivating force for India's law commissions which installed its similar criminal procedure codes. In an influential speech in Parliament on the Government of India Bill in 1833, Macaulay argued, this is one of his less famous quotes, Macaulay argued, quote, that it would be far better for us that the people of India were well governed and independent of us than ill-governed and subject to us, that they were ruled by their own kings but wearing our broad cloth and working with our cutlery, than that they were performing their salams to English magistrates but were too ignorant or too poor to value, or too ignorant to value or too poor to buy English manufacturers to trade with civilized men is infinitely more profitable than to govern savages. For utilitarians like Macaulay, the market itself offered the most efficient form of governing. The colonial civilizing mission, a despotic project of improvement, would instill in colonial subjects in education and ethical valuation and the value of market values, the result of which would be that civilized natives would act out the script of supply and demand to the benefit of England, seeking to replace the political despotism with free market ethics, Macaulay envisioned a society made up of market actors whose political agency being governed by their own kings would be trumped by their economic instrumentality in favor of Britain's profit. Macaulay's vision provided the impetus for legal standardization in India, a program that sought at once to implement the rule of law and secure the free circulation of capital through disciplines and contract. So, I'm just trying to hear towards a genealogy from colonial liberalism to contemporary neoliberalism to offer one way into a law as approach, an attention that's informed by colonial history, the study of colonial history as well as post-colonial studies to the techniques of what Foucault has called la gouvernement d'alité liberale, liberal governmentality, which views, and I'm just quoting Foucault here from one of his lectures in the Collège de France in the 78-79 lectures, which views civil society as the concrete ensemble within which abstract points, economic men, need to be positioned in order to be made adequately manageable. Such a project is informed by and elaborates a wide range of legal thoughts from legal realism to critical legal studies to law and society frameworks. These critical approaches have sought to map the dynamic relationship between law and economy in the economic motives and forming the workings of law, for example, or in laws, regulation, and marketing balances. But at the same time, they narrate law and economy as distinct spheres broadly operating by a state-market binary, one that also structures social science approaches to the study of political economy, that is, the study of the relationship between the state and the market both conceived of as a priori spaces. So this historicizing gesture of seeing how the market is produced is obviously going against the grain of that. Said differently, in the law and formulation, law operates as a system, as a logic, that is, as a logos. And this is one concept of law that I'm going to be playing with, law as logos as opposed to law as nomos. But in the law and formulation, law operates as a system, or logic, that is, as logos, as does economy, each as an arena outside the other. To think law as economy is to address law as a discourse of governing and governing in its fullest range about the political meanings. So this section is called Law and the Text Context of Colonial Liberalism. So drawing from my work on colonial liberalism and the project of market governance and civilizing mission, I'd like to approach the question of law and its outside law and by foregrounding an old-fashioned barbarian question. Via Foucault's approach to political economy as a discourse of governing, and that is economy as a problem of law. Not the economy as a problem for law, or economics as a problem for law, but economy in its classical sense as practice of arranging, managing, and governing as a problem of convention, law as nomos, and its relationship to a codified, juristic system, law as logos. I take this as a task that investigates law as a key site for thinking about how do we narrate and conceptualize context itself, and that again would be a critical history intervention. How do we narrate and conceptualize context itself? That is what is done, what is located temporarily and spatially, what changes through shifting conventions. In particular, the problem of convention and elusive limit that Weber defined formally as conduct without any coercion. Poses questions about legal translation, the historicity and situatedness of norms, and the currencies of conduct, as well as their embeddedness within systems evaluation, and, excuse me, systems of value, their embeddedness within systems evaluation, and forms of community or corporate life not fully appropriated by the value system of the free market. The question of convention also draws attention to the politics of temporizing through which legal contexts, laws, sites of application are produced. So the text and context I offer to address these questions is the legal regime of British India in the late 19th and early 20th century, a period in which much like today, a concentrated genesis of legal fictions enabled an extensive globalization of capital, especially new forms of finance capital. At this time, colonial legislators and jurists sought to standardize market practice and installed a new object of sovereign management, a thing called the market. This was an abstract, super local space that stood in for the public in an arena of political subjects rather than citizens. At the same time, its installation negotiated the situated conventions and practices that structured indigenous or what I call vernacular capitalism that operated through norms of kinship, family, and caste. I'm presenting this Indian context not as just an empirical case study, but as an exotic outside, if you will, but rather as a site and citation in the way that legal folks do citation as a site and citation of the genealogy of capitalist modernity itself. And so I'm not being a native informant here. I'm saying that this story is a story for all of us and we can't actually understand the way in which we inhabit capitalism and our capitalist subjects unless we know this story. So it's not just about a kind of outsider's approach. Now, before I leap into, I want to give you two examples, the Indian Companies Act and the Visual Arts Act. I'm going to leap over the Indian Companies Act fairly quickly. But what I wanted to do was highlight first how these questions about law as economy and the way that I'm framing them actually speaks to perhaps counter-intuitively to the fairly well-known reading of Foucault, his call to a non-economic analysis of power. And everyone reads the lectures on power knowledge in their first year of graduate school and then they move on. But I just want to return to those for a minute. It's a well-known call to a non-economic analysis of power and I want us to remind us of it because it informs the genealogy of the analytic of governmentality which is sort of too often used as just broadly a term to describe knowledge and power and groovy theoretical analyses, but I want to sort of locate it analytically. So in his College de France lectures that precede his theorizing of governmentality, Foucault poses two established scripts for the way power is configured, both of which he states suffer from, quote, an economism in the theory of power. In the first, the juridical or liberal conception of power, the model of sovereignty codified by the philosophies of the 18th century, he says, quote, power is taken to be a right, which one is able to possess like a commodity and which one can transfer or alienate through a legal act or some act that establishes a right, such as takes place through session or contract. This theoretical construction is essentially based on the idea that the constitution of political power obeys the model of a legal transaction involving a contractual type of exchange, so social contract theory. It's interesting to note here that session and contract are both addressed through the concept of economy. Conquest and contract, appropriation and exchange are posed along a continuum, a point that would not have been lost, I'm going to call it. And the first script of economism focuses on exchange and circulation in Foucault. The second operates as a material deterministic Marxism or what Foucault calls an economic functionality of power. So this is another, he says, problem with the economic analysis of power. And here he says the historical raison d'être of political power and the principle of its concrete forms in actual functioning is located in the economy. That is, the economy, as an already established thing, becomes the origin and explanation of all relations of power. Law structures theoretical notions of sovereignty in the first economistic model and is an instrument of economic functionality in the second. So a historical approach to law as economy I would like to propose would problematize the a priori status of the economy that Foucault, despite the historicizing impetus of his own analysis seems to reproduce in those lectures on power knowledge. A law as economy approach would detail the relationship between law, rights and social relations of contract and the production of the economy that law is either meant to reflect. So laws meant to reflect the economy, say, in law and economics models. I mean, a perfect example is the recent Supreme Court decision in Citizens United v. Federal Election Commission where if you look at the majority opinion, the phrase that is ubiquitously reproduced as a mantra is the free marketplace of ideas that is completely naturalized. So, or, you know, from the point of view of the left, laws used to sort of correct things as a labor law, but still the economy is a presupposition. So Foucault's 78, 79 lectures of which the well-known essay on governmentality is just one lecture, one part, they detail the ways in which economy comes to dominate as a discourse of governing, especially with the modern emergence of political economy as a science and discipline. So I won't, just in the summaries very briefly, Foucault looks at the many meanings of government in western tracts and the lectures address not just simply the administration of state, but government as techniques of control in the self, the family managing the household, or the economy at the art of governing political subjects. And just to summarize, Foucault's modern forms of liberal governance have a strong relation to the idea of economy in its most formal definition. But those of you that want to go back to Aristotle, the first five chapters of Aristotle's politics, we will know that economy, oikonomia, the Greek refers to the law as convention, the nomos, and that is the law's convention, the nomos for arranging, distributing and managing the household, the oikos. So this idea of economy as arranging and managing is revitalized, Foucault says, with the emergence of political economy as a knowledge formula, which marks a shift from imposing law on men to disposing things, to using laws themselves as tactics to arrange things in such a way that such and such ends may be achieved. This is a very famous quote from that essay. So the legal standardization of market practice in India marks an important place in the history of liberal mentality. Foucault's genealogy of government offers a potent critical impetus for thinking market governance and law as economy. So I just want to highlight a couple of theoretical things and then touch base with a couple of my examples. Thinking law as economy foregrounds the problem of narrating convention and conduct, a key theme for the history of market practice and particularly the conceptualization of the lex mercatoria or law merchant and an elusive legal domain that has recently drawn renewed attention. It's important to remember that a concept of law, nomos, and specifically law as convention is embedded inside the concept of economy as opposed to the outside conjunction of law and economy economics. Moreover, economy understood as a project governing, arranging, distributing, managing ties and notion of law, nomos, to the idea of community and corporate life as boyfriends. So thinking law as economy in this way opens a robust engagement of the relationship between law as nomos or convention, that is the situated, located historicity of conduct and practice alongside the scripting of law as logos, that is as sealed universal, juridical logic and as sovereign divine performative, as standardizing bentonite logic and as the commands of sovereignty. So this would be drawing attention, trying to look at the relationship between law as nomos and law as logos would mean drawing attention to the forms of community and corporate life that are produced through legal conventions of arranging and managing. In modern political economy, the making of the public and indeed the public private distinction. So at its ground, the nomos of economy also points to the limits of law and history and this is really I think what I'm trying to highlight. Convention in theory would be constantly shifting an ever present currency that slips codification and temporizing and points to the impossibility of context even as it marks context with a very inscription of a legal currency. Indeed, nomos even bears a relation ideologically to the Greek for monetary currency, nomisma. So convention, corporation, currency I'm highlighting to map tensions between forms of embedded social life and the modernizing impetus that abstracts the public project of economy from what was deemed the private realm of indigenous culture. And so what you see is that as economy becomes an abstracted thing and named as the modernizing space of the public, everything else, the private, the liberal categories of public and private are operative in commercial and financial law and the private realm is the realm of culture. So to summarize, I have a whole shtick on the Indian Companies Act of 1882 and the big problem with the Indian Companies Act it's, I hope you've read my paper because there's a beautiful analysis of negotiations on this act and I will summarize it ever so briefly. The Indian Companies Act has to deal with kinship-based capitalist groups. Now, it could just go ahead and regulate them but the problem for jurists is are these even corporations? Can they even be conceived as maybe contractual partnerships? Well, what ends up happening is that the Indian Companies Act chooses not to regulate them. Historians get confused and they think, well, indigenous capitalists were not regulated. Well, actually they were because they were coded first and foremost as families rather than as firms. These are family firms. They're coded as families. The discourse of the family is up front and center and they are coded as cultural rather than as economic actors even though the colonial state relies upon them. Why is this important? Well, it actually shows the ways in which the very discourse of culture is in effect of the abstracting of the economy or the installation of a contractual gazelle shaft politic produces a world an imagination of gemine shaft as its effect. What I'm trying to do is actually invert that classic status to contract gemine shaft to gazelle shaft temporization of modernity that we know from the 19th century and really sort of turn it around. The story of negotiable instruments is similar. Just one more minute. The story of negotiable instruments is similar but different. And that is that indigenous negotiable instruments around the negotiable instruments act are also, they become a problem. They become a problem of local usages. What do you do with local custom? If you don't want to mess with indigenous culture which is part of the policy of the British colonial government then if you, these local customs should be regulated by even the Muslim personal law. They should not be regulated by the similar criminal law. Except that of course indigenous negotiable instruments are absolutely central to the economy. Well what ends up happening in the negotiable instruments case is despite all the precedents that define custom, the criteria for defining a custom as its practice from time immemorial in the case of negotiable instruments custom is defined as the practice that is the most recent. And that is a strategy that allows the indigenous Luxembourg Victoria to be assimilated to the law of contract. The point, the broader point that I wanted to make was we need to pay attention to the politics of temporizing in law. So in one case you have custom as the ancient thing from time immemorial and yet in another somehow local usages are understood to be absolutely the most assimilable. So can I just read my little conclusion? Yes please 37. So law inside outside economy the opposing temporalities ascribed to vernacular market practice ancientness and ever-present currency indicate both the outside limits of law and its very insight. Law in its juristic form as a self-referential system or logic or logos cannot catch either that which comes from time immemorial or that which is ever shifted. Nevertheless, these categories both ancient custom and un-catchable currency mark the range of law as nomos. A significant task of legal history and theory together is to detail as I've highlighted the confrontation between law as logos a context producing incarnation of law and as a nomos or convention the sign of context and its impossibility. These categories cut across standard legal distinctions such as public-private or public and private law and we have to remember then to push these critical projects the formulation of law as economy would have to remember law is inside economy as nomos as a practice of arranging and managing and also outside it as the medium for producing economy as logos the logic and model for the social. So that's it unfortunately Negotiability I think deep thoughts while I struggle with technology and about this a few minutes ago was that technology is like a monetary system without credit everything is fine until something doesn't work generally if you have credit you can get over those humps and if you don't which is what happens with information technology you're stuck So what I want to do today is actually to supply little context from my paper and then to make to take a little bit of it and give you the argument the context for it is a wider project on the political career of the dollar as Risa mentioned that goes from 1862 to 1913 which seemed like one off years because everyone thinks 1861 you mean or 1914 but I don't I actually do mean 1862 which is when the greenback was first issued the greenback it's an innovative sort of money for the United States and I'll talk about that what happened in 1913 well the Federal Reserve Act was passed and in an instant because we know how acts of commerce actually work we had the Federal Reserve so what happens between 1862 and 1913 there are two processes that go on I attempted to say two things but they're not things so one of them is that the meaning of money basically changes that is the way people understand the money that they're carrying around almost only about paper money but that's the most significant money that changes you understand money differently and I'll explain how in a second and the politics of money goes to this incredible change where from the Civil War with a few little breaks until in 1896 politics is money is a hot political electoral political issue political in the simplest in 1896 it's the most important issue in electoral politics it decides the presidential election and then after that it basically fizzles out and dies as an electoral political issue so I'll talk a little bit about each of those so first of all the meaning of the money this is a note, a typical note from 1837 and basically in the decades preceding the Civil War most of the money stock in the U.S. looked at something like this although with lots of changes so first of all you can see this is a private bank, it's chartered by state there's no federal regulation to speak of and this money is promised to pay to and then bear on demand Boston is the name of the city where this particular bank exists and this particular bank actually had the misfortune of issuing these notes in 1837 which was not a very good year in any case there were many many notes like this and I'll show you just a few they all say something very similar will pay $2 will pay $1 to bear on demand everyone understood that that promise to pay was a promise to pay in coin one could be silver or gold but silver for most of this period was more valuable as bullion than as coin and therefore very little silver circulated the truth is that actually very little gold circulated people were very happy with notes in the sense that they were easier to carry around and there were more of them it was quite hard to find species in the in the U.S. so there was lots and lots of variety and that's what these are the many notes are meant to show there was some coin going around this is a Spanish dollar from 1739 but circulated as in a perfect currency in the U.S. until 1857 these were the Spanish pieces of aid that famously circulated almost worldwide but there was also a lot of token currencies this is what we would call a nickel this is what I'm also from the 30s truth is people didn't like coins all that much either and they preferred fractional notes so this is not a mistake this is a ten cent note there were many others five and ten and twenty five cents and for Chris who likes the three penny opera three cent note and this had a long tradition from before this era of the states issuing bills of credit something that became constitutional eventually and you can even see the fractional currency is really fractional for six and a quarter cents you can think of the whole pieces of aid system so this is the half bit and so this was a system it worked it worked in lots of ways a lot of modern day libertarians will tell you that it's really a great system that's not true it wasn't a great system unless of course you were a counterfeit because they presented a lot of great opportunities otherwise it was kind of a drag on commerce because since there were so many notes and so many good chances for counterfeiters you have to be wary if you were a merchant of accepting notes so the whole point of currency that things would travel current was a little bit undermined so this is you can all read this so here's a little session and it tells you for each bank who are the people who signed the notes which of the notes are good what the drawings on the good notes are as opposed to the spurious ones so this one will have a big yet of so and so this note will be altered not spurious that is there was an original note that was good but it's been altered so instead of being one it's now ten and so on which are actually counterfeit notes with different drawings on so if you were a merchant you had to have one of these on hand if the bank that you were getting a note from was very far away and you didn't know it even if it didn't appear as a counterfeit note you might discount the note and give 80 cents of merchant as said for a dollar note that was the way commerce went on which wasn't terrible wasn't fabulous the system was prone to seasonable stringency and at times backgrounds, panics things that we're all too familiar with these days in a completely different form they don't get on this colorful form I think anymore but they can eventually lead to actual depression so this is someone who has no money and needs and there's no work time for the bank panic but need not have it so that was the system of money before 1862 all private state chartered banks the money was a promise to pay in coin made by these private banks and people understood it as a promise by the private banks it was only as good as the bank that you were getting the promise from then the civil war does break out and the government and the union I'll only talk about the union even though similar things happen in Confederacy but Confederacy doesn't actually pay its obligations it's much less interesting a story the union has to fund the war effort and so it does four things it prints, borrows, taxes and it creates a national banking system and the national banking system fits into all of these things but especially into borrowing so printing is the dream back this is Sam Jase who was secretary of the treasury put himself right on that first note and ten years later managed to when he was sitting on the court declare that he had been unconstitutional to issue them that decision only lasted a few months court overturned itself but yeah quite an interesting position to be and I think to have actually issued the notes to not decide that it had been unconstitutional the back of the note is what gave the notes their name fairly attractive for the money of the time so that was printing this is just a later note the notes typically said something about the authorization to issue them that was true in these two an act of congress of july 1962 1862 it borrowed money so it issued bonds these are the coupons that people could get the bonds in the original bonds with 30 year bond team and with coupons payable in gold everything else was not payable in gold so the innovative thing about the green bats was that they were not promises to pay in anything else they were just money you could go to the treasury and get a different green back note if you didn't like the particular green back note that you had you could get different denominations but you couldn't get anything else so they said it will pay bearer but it didn't mean it will pay bearer in coin the bonds on the other hand paid their coupons in gold there's a confederate bond there are lots of these because they never got paid off lots of collections it's much harder to find the union bonds but who wants to buy bonds from a government that's at war not necessarily going to win this war well only someone who thinks that they can make profit from it and the union government made it profitable for nationally chartered banks so they created a system of nationally chartered banks they told the banks the only way you can issue notes which is one very profitable business for banks up until this time is if you deposit bonds US bonds with the treasury meaning for every dollar that you want to issue you have to have a reserve on reserve bonds in the United States so you can see on these notes first of all they're called national currency it's a national bank of San Francisco a lot of private banks applied for charters they were not they were still private banks but they now had a national charter rather than state charters and the note is secured by bonds of the United States deposited with the trader initially you actually had deposited more bonds $100 per $90 that you were issuing and this was a very good thing for lots of people first of all it turned out to create a market for bonds so the government borrowed money to pursue the war it also turned out to be a very very good deal for banks and I'll talk about why a little bit later additional notes so the national banks issued these notes and the government in addition to issuing the greenbacks also issued later on after resuming the special payments also issued other kinds of notes sometimes backed by silver sometimes backed by gold this is Martha Washington and that's why she's here and that was kind of a cute note anyway through that time because the more people get used to the fact that all the money is the same because there's no bank issuing money for which you have to think about the bank itself it's all backed by the government either indirectly in the bonds or directly because it's issued by the government so the basic sense of what the money is has changed people think about money a lot more like we think of the money which is that it's the end of the obligation that you will buy with it becomes pure purchasing power and in a sense it's no longer a promise even though it still says we'll pay bearer it still is a promise in a lot of technical ways but you no longer think of it as a promise with something else it's already purchasing power it's just a piece of property rather than being a promise the government also taxes including an income tax that is temporary so in 1872 at a time it takes in about 10% of the revenue so it's not an insignificant so that's on the meaningful money side on the politics side the money is a very hot issue this is a 1996 poster and basically the only issue thing that you can actually make out on it is the slogan 16 to 1 that is the slogan going back to silver and in 1896 this was the major issue of the campaign it had actually been the major issue of electoral politics from the early 1890s through the election of 1896 and that may seem like this is McKinley who is running on a poll that should seem a little bit strange especially when we think of the fact that not too much later the issue really disappears so I want to put this a little bit in perspective I think most people here remember the health care debate so most of us experience that as very contentious people are very involved people have very opposing views but I can't imagine I would tell you that within the space of a decade or so we'll establish a board of some doctors and some people from hospital administration and some people from academia who work on public health and we'll shield them completely from politics and they'll make all the major decisions in health policy so you probably look at me and say yeah right that's not going to happen exactly what happened with the establishment of the federal reserve and money was actually a more contentious issue in 1896 than health care was in 2009 so that's basically the general puzzle so in 1896 we get an election that basically people talk about as a battle of the standards and it had one dominant issue which is will the money be backed by silver will it be backed by gold lots of people say that this was an election that was mostly decided by people's passions so this is a silver and gold on the track anyway it generated record for a return out people were very interested in the outcome of the elections everybody hated Cleveland they thought he'd put the government in bed with the banking interests especially J.P. Morgan that sort of bailed out when the gold interests were slipping anyway these were the candidates William Jennings Bryan and this is my favorite picture of William Jennings Bryan this is probably from before maybe from 1894 so the reason I like it so much is that he kind of looks like another volunteer anyway and this is Bryan so I want to play you okay what I want to do is play a little clip from this is Bryan reading The Famous Cross of Gold's Beach that's not very clever so that's Bryan reading after the fact in real time in 1896 at the convention when he made this speech there were no microphones he apparently was an amazing he had amazing lungs amazing order and for large crowds he could speak the place where he was he could speak he could speak he could speak so large crowds could speak the place where he was crazy and eventually nominated him the election campaign was full of very heated propaganda or campaigning materials this is a question Bryan actually eating the Democratic party Governor Alfield of Illinois portrayed as rather devilish anarchist anyway so get a little bit of the idea of what kind of passions were involved what I want to do is actually talk a little bit more about the sense and the sense I always get through the wisdom of bumper stickers so it was about the economy what was going on in the economy it was bad time and it was bad time because of falling prices where am I in time I say falling prices and people say falling prices where do I sign up that's great but that's only true if you have wages that are stable first of all if you're a wager and second of all if you think those are stable so if you're a tenured faculty you don't think anyone's going to actually cut your salary falling prices sounds good for the late 19th century all over the industrial west or industrializing west those are not so good chances that you were actually a farmer or another small entrepreneur who relied on credit was much greater than it is today and if you were a farmer just imagine that most of your costs are pretty much fixed you have a mortgage to pay off most of your costs are pretty much fixed in normal terms and the big question is whether the price of your output is going down so here are a few examples we've gone down to a third of its price this is actually half its cost of production so if you were actually if you planted in 1894 corn by mistake you might be burning it for fuel rather than trying to sell it cotton had only lost half its value only so what this means is that farmers were too great and losing their farms it was a very bad time to be a farmer it was also a pretty bad time to be a laborer up until 1892 for 20 years actually real wages hadn't gone down but starting in 1892 they did and there was a lot of sort of labor unrest which led to a lot of violence capitalists were very good at recruiting armies sometimes private armies and sometimes federal troops like in the case of the Pullman strike so it was somewhat dangerous and not a good time to be a laborer it's also not a good time to be a capitalist strangely you might think but unless you're very big or very ruthless you're actually having a hard time in part because it's harder and harder to really pay off you have the same problem as as the farmers in terms of trying to pay off your credit so who benefits so there are other people who have a steady job, maybe government employees and especially the national banks because the national banks are holding they're holding the debt of the government they're holding bonds those bonds pay off their interest in gold and so they have they've loaned money that used to be able to buy x and the money that they're being paid back buys 2x so they're enraged okay so in this I hope that the conflict over gold and silver seems a little bit more like our political battle over economic policy than our typical disengagement over monetary policy silver advocates are basically arguing for something that looks like a stimulus package one that paid for itself though by distinguishing the advantage of fruit by creditors over the last quarter century that was an advantage that silver advocates thought was unfair if not outright dishonest gold advocates that's something we've been hearing lots of what's good for Wall Street is good for the country and a strong currency will be good for wage earners and will be good for generating credit or confidence which is the only thing that will succeed in actually revitalizing the economy so those were the arguments now what I think is actually going on is that we're realigning economic politics and law so let me just put this again in the context of what people typically think about this I think the typical reading of how monetary policy falls off the table is a political issue is Milton Friedman's and he says technology solved the problem silver backers were looking for inflation and the problem was the key to its own solving because the price of gold was so high it was worthwhile to invest in making it more plentiful either by looking for it in new places or by looking for new processes to make it easier to mine both of those things happen we get lots more exploration and we get a sign that process more gold comes into the system we eventually get inflation which brings on prosperity and everybody is happy and therefore nobody thinks about the politics of money anymore I think that actually thinks about things much too narrowly and I think on the level of so I think that the protagonist over the protagonist in this debate started from different points different points in the project which one I'll call political economy, that's the silver camp and the other is microeconomics and the political economy people so in Benin who is the sort of hero I think of those people who will start with the entire economic framework a complete societal arrangement which is made possible in part by the existence of money they keep one amount of money as a single ingredient in an arrangement for the distribution of wealth and they think if the changes in the value of money will change the distribution of wealth then changes in the value of money are one of the things we have to make a decision about so Andrews talks about the new necessity for conscious action by men in the direction of their greatest affairs that they envision the whole as something that we have to manage from this vantage point legislation is a mode of social action the polity works through its representative government government is the human face of the state and it instantiates popular will legislation then is the objective of political debate law is open to functional government now the alternative viewpoint of money sees it as a facilitation of more basic and always resilient economic relations this will be a role where the a hero in this in this exchange is Irvin Fischer Fischer goes to great lengths to a radio rotation from Fischer because it's so interesting and I hope that I have a little bit more time after that Fischer says individuals can actually work out the fluctuations of the currency in advance that is they can bet on their expectations of the fluctuation of the currency in advance now it's true he says empirically they haven't done a very good job of this and the debtors have been getting the shorter end of the state for the last 20 years but that's not really a big problem it's just the cost of doing business and so he says the debtors have lost does not imply that they've suffered an injustice if a man insures his house and it burns the next day the insurance company suffers a loss but not an injustice if the company should ask for legislative relief on the ground that it did not expect it's a sudden affirmation of its policy that the fire was brought about by causes which are not possible to foresee or provide against it would be left to spawn keep your contract would be the reply it would make no difference if the fires were universal and every insurance company lost the consequences a foreign mortgage is far increased to pay a thousand dollar and five percent interest and the terms of the agreement takes all risks as to what the dollar will buy or in wheat or anything else he may lose and all farmers may lose and the cost of maybe India or Australia and sunspots we can hardly afford to surrender the ancient principle of the inviolability of contracts through sympathy with the misfortunes of any individual man or group of men for Fisher everybody prices everything they price the risk of future fluctuations in anything whether it's the producing or the money now the punchline for me of this analysis is that the effects of the argument of the money question are not adopted in the gold standard and not adopted in the gold standard although this also happens but rather it's in the discussion in economic terms rather than in political terms and those economic terms are also different from what they might have been so the outcome of the money debate is not the gold standard but rather the understanding of money is an issue to be determined by economics in a way from politics that particular outcome is a battle of internal politics of internal battles within economics as much as it was the result of an intense political confrontation moreover the vision of law was at the heart of the transformation so from the conception of law as an objective in the political struggle we witness a shift to law as a most unspoken and naturalized background or baseline for the analysis of exchange from goal or objective to unchallenged background from figure to ground so only when that powerful maneuver becomes naturalized and internalized in politics itself that the politics of money can move to a narrow plane of fine tuning regulation by experts and in this sense this whole process is really set in the stage or an establishment of the conditions of possibility for the Federal Reserve that of course is the story for another day thanks so if you want to stand up and stretch just for a second wave your head cause these are long sessions Chris is coming but stretch, stretch, yeah stretch, all right your, you know, do your head Chris is time NASA Dania that's enough I actually want to start by just saying thank you to Chris and Catherine for organizing this conference and inviting me out here and particularly for giving me the opportunity to stand up here with an esteemed panel of scholars and particularly it's a real treat for me to be up here with Morty Horvitz I told him this before and he knows this but more than anyone else in the world the reason I decided to study legal history was because I bumped into Morty in my first term of graduate school so it's always a pleasure and a privilege I also say that because if I say anything that makes sense and abuse he could certainly take some credit for if I say anything that's stupid or wrong-headed just blame Morty I start with an observation and then I end with a question today observation with apologies for Chris Tomlin's I think people like law and the question I'm going to finish up with is should we really care more precisely the point in the center of the paper is that the production of the law society binary has not only been the work of scholars it's also been the work of people outside the academy when people seek to effect change or when they seek to protect the status quo they often rely upon certain sections of the law that have the effect of sharpening and reifying the boundaries of the law in short my paper takes as a starting point not historiography, not methodology, not theory, but history that is I consider the ways in which various historical actors stop to construct a conceptual wall around the world of the law I'm particularly interested to see the kind of work that the construction of the law society boundary does for different groups at different times and a brief digression on some terminology I use in the paper and in my presentation today particularly the use of the word society I use the term society not to mean it's not meant to make any kind of conclusion about the presence or absence of law in some form in this sphere of society but society I simply mean to give a label for a sphere of life that in the minds of historical actors whose ideas I examine is distinct from their conception of what they deem to be the law by using this term I'm trying to recreate the distinction between law and not law as others have understood it and to adopt a label that allows for comparisons across diverse efforts to define the boundaries of the law I'm focused on my examinations on the civil rights movement but I think there are arguments about the distinctiveness of the civil rights movement on these different efforts to define the law society boundary indeed I think it's probably more representative and distinct than the questions I'm going to consider today but I do think the civil rights movement will probably raise some of these questions in a particularly powerful and pressing manner so I think it's a useful episode to look at what I have found in the process of engaging in various research projects on the legal issues of the civil rights movement is that a diverse array of historical actors and I look at activists lawyers and I look at scholars often with quite distinct and even opposed agendas regularly expand considerable thought and energy in creating and defending conceptual boundaries around the law so even as sociological scholars have insistently and convincingly I think demonstrated the pervasiveness of law and legal norms expanding our understanding of the law and engaging with the construction of the law and its more informal manifestations the subjects of study at least the subjects of my study often seem more interested in going in the exact opposite direction in strengthening the barricades and separating their conception of the law and their conception of society the organization's paper has three sections the first section looks at three different episodes in which people try to create some sort of a law a law society boundary a boundary between law and not law in that section I look at the defenders of Jim Crow who mobilized against who mobilized against fiddles of resin and they used a vision in defending Jim Crow that was based on an assumption that law should reflect norms and customs that hey Bob somehow outside of the law a second I look at the opponents the defenders of Jim Crow the early way of a civilized activist that mobilized around the ground in case of litigation in a way they tried to challenge this conception of customs as standing somehow apart from and above law personally the case that law can in fact have direct causal effect on behaviors and attitudes on society and then third I look at an episode which actually begins the paper that is a student lunch cutter sitting in protest of 1960 in the efforts of these students to define what they were doing as somehow not law as somehow different in their conception of law meaning lawyers and litigation so the three episodes are efforts to build up this boundary also do look at a couple individuals who seem to move in a different direction seem to challenge law society divide and I think partly arbitrarily because there's many people who could have been brought in here but two very different figures the civil rights icon Martin Luther King Jr and the law professor Alexander Bickel both of whom tended to question the formal definition of law and argue that in fact law has a component after the formal passage of law the formal mechanism of law is just one stage in the process of giving law meaning so they tended to press against some of the other assumptions of a strict divide between law and society and then the final section I do consider some historiographical questions about how we write the history of the civil rights movement and some of these debates about the law society divide after you replicate themselves among historians and then I do end with that question about whether it should matter so there are methodological choices that we make when we write about the history the first episode the defenders of Jim Crow basic idea here is the commitment among these people who are defending Jim Crow to the idea that established cultural norms and traditions were the basis of a strong and stable society and that law should be designed to reinforce and support these cultural foundations to ask law to do more than this to ask law to do more than reflect and reinforce relationships that are already established in society was to use law to try and change in trans norms would be at best a waste of effort and at worst a recipe for social upheaval that came out time and time again among defenders of Jim Crow from the late 19th century through the middle of the 20th century was that state ways are powerless to change folk ways this is a popular victim that was commonly associated with the sociologist William Graham Sumner the leading proponent of social Darwinism in the late 19th early 20th century translated for the purposes of segregation folk ways with accustomed practices of white supremacy state ways, civil rights laws and this you do here repeated all over the place probably the most famous or the most widely cited text in which this sentiment came out would be the Plessy vs. Fergie's in the case of 1896 in which one of the premises for this decision was that in the words of the court legislation is powerless to eradicate racial instincts so even if the court were interested in stretching out segregation laws this is a majority that it wouldn't really make any sense that law needs to somehow follow non-legal established social customs and have the role of law not to do more than this this sentiment does live on some places you can also see it during the Brown litigation Justice Jackson, Justice Robert Jackson actually had a lot of difficulty coming to the Brown decision in part because he actually presented to a group with this idea that law has very limited capacity to change trans-social relationships so he wrote a concurrence in the Brown decision which was never published but it can be found in his papers in which he wrote he repeated this sentiment in different variations one of which said this court in common with courts everywhere has recognized the force of law and custom and has been reluctant to use judicial power to try and recast social usages established among the people again a pretty strict division between law and society being the fundamental phenomenon in law being able to sort of work run the edges but not really fundamentally get in there and change anything these arguments were again parroted by the lawyers defending state segregation laws in Brown you can actually find it in Southern Manifesto which was put out in 1896 by 1956 by 100 some odd members of Congress from the south and Dwight David Eisenhower was said this time and time again when he was asked what do you think about the Brown decision he was the president whose job was to enforce Brown decision he would always fall back this idea of saying that it is difficult through law and through force to change a man's heart and that was a justification used with one exception but in general that was a justification used why not getting more involved in this issue now we do know that this segregationist vision of law and society was right within consistencies and ironies one of the essential components of the creation of Jim Crow was of course law there was a law issue in Plessy versus Ferguson and this was the point that was made most powerfully around the middle of the 20th century by the historian Stephen Woodward his book The Strange Career of Jim Crow the main premise of this was that laws created the system of what is the premise their laws had a very important role in the creation of it and therefore we should change the laws and changing the laws will have direct effect so that would be the point also there is the irony that a centerpiece of massive resistance to ground was in fact law one of the segregationist ones said as long as we can legislate we can segregate the states passed law after law in order to block the implementation of the school of segregation so even as they were saying the law really can't do all that much they were using law as a barricade against other laws in order to protect social relations that were under challenge segregationist must shift it back and forth between proclaiming law as subordinate to practices and attitudes and turn into law to protect these same practices and attitudes when threatened by the civil rights movement this vacillation highlights the fundamental inconsistency of the segregationist definition of law in claiming that as a prescriptive matter law should never stray too far from local commitments of practices segregationist wavered between these polar opposite views of laws capacity and they characterized law as powerless in the face of entrenched social norms but on the other hand they also said that law could actually be dangerous so you need to be careful of law and make sure that law didn't reflect social relations or else law could have potentially revolutionary capacities so one of these underlining consistencies that would be highlighted by the critics of their position so now I'll turn to the critics the racial liberal argument for the capacity of the law now in challenging Jim Crow civil rights proponents in the middle of the 20th century commonly embrace the conception of law that they framed as a direct response to the segregationist skepticism toward legal reform this approach largely accepted the premises of the segregationist conception of law as functioning on a distinct plane from society consisting of attitudes and customs and practices this unders folk wave but they saw the challenge of segregationist society over law hierarchy law could shape social behavior arguing these liberal scholars and activists as one scholar wrote, the chief device of social segregation in the south is the law so the flip side of that is if law creates social divisions and segregation removing laws or reforming laws can actually have a direct impact and this is the argument that Thurgood Marshall would highlight when he stood before the Supreme Court Marshall would talk about the segregation being quote the state imposed part of it meaning that segregation itself of the social practice was just derived from the fact that the segregation laws again urgent injustices to stand up get rid of these laws and then assuming that we'd have some sort of improved social relations of the direct result of that the creation of a compelling persuasive ideologist of rights reform thus had two key components each aimed at the assumptions of this one was the destabilization of the belief that racial hierarchies were natural and flexible and that racial prejudice was a necessary component of the human condition and second was pressing the argument that legal commands can be particularly effective in transforming social relations and in an early post-war period these two projects were connected the more malibuly attitudes and customs of Jim Crow the more readily external pressures such as federal law could reform these two projects and customs and they had different pieces of evidence that would draw into this discussion for example you talked about the social sciences in fact the lawyers often drew on social scientific research particularly in the field of contact theory now contact theory is the idea that you put diverse people into circumstances of relatively equal footing and they'll have increased understanding prejudice will lessen in these circumstances the question is what is the sort of outside impetus in these situations and the idea is that law can create these situations the anti-discrimination law or equal employment law will force these people into these situations and then social relations will develop out of that and there's a very elaborate in the 1940s and 50s a elaborate social scientific by a scholarship which tried to demonstrate that this in fact would happen they also relied quite considerably on state level civil rights laws which you don't hear a heck of a lot about when we talk about various civil rights movement in fact these were used as small scale success stories to show that yes law can work when you have civil rights laws in the border states and in the north that did seem to have some marginal impact on social relations then of course we do have a series of Supreme Court decisions before Brown that did not have the background effects that Brown had usually cases like the white primary case and the desegregation of higher education in 1950 we can also put in this discussion desegregated military in 1948 these were all used to show that law entered the story and changed social relations and the end result was not setting the situation back and in fact moving it forward the third episode I want to look at is the Siddins and the Siddins was an effort by protestors to create an alternative to law in a sense the students who launched the Siddins subconsciously identified their protest as a critique of civil rights lawyer and their reliance on the courts they defined their efforts as an alternative to the court focused approach of the NWCP lawyers the leaders of the civil rights movement of the students in the movement attacked and they called the civil rights redress which is too tactical, too rigid, too slow James Lawson one of the student leaders of Nashville contrasted the student led movement to the NWCP which he criticized as a fundraising agency a legal agency that by and large neglected the major resource that we have a disciplined free people who would be able to work unanimously to implement the ideals of justice and freedom so from the perspective of these student activists law can be readily defined it's locating specific institutions courts in particular it's identifying the particular profession the lawyers and it even has a tendency a speed of change and the assumption behind Lawson's critique of the NWCP and civil rights redress is that there is a realm of law and there's something else and the students want to establish that they are working in this area of something else as much as possible to sit in protestors push the law to the side recognize without necessarily accepting the disjuncture between morality and legality and work to change minds more than laws and in the paper I do explore rather briefly some of the tensions that's created between the lawyers and the students because in fact the lawyers did show up down here and did recognize the students and they had a lot of tension between the tactics that the lawyers thought they should be engaged in which is mainly maybe having to protest but then challenging these protests and court appealing and staying out of jail which they thought was the best path and the students wanted to continue the protest wanted to go to jail to extend the protest as it developed now there are also some important benefits for the students this is one of the points I want to emphasize in this paper the benefits of the construction of the law society divide for these different historical actors it did help create a sense of collective movement identity they had a definite opposition they had the opposition to the segregation but this is the opposition of lawyers that's what they do we are doing something different and that weakness that developed out of the opposition to the lawyers something spontaneous it wasn't quite spontaneous but they actually like to use that language in describing what they did something youthful was how they described it the tactics also important created tangible opportunities for small scale victories if they have relied upon law and litigation we do know that process is a long drawn up one which the students were able to do by saying we are doing something different something involving not law was they able to define victories and things like when a restaurant shut down or a protest or restaurant shut down that could be seen as a victory they were achieving something those are tangible changes that were occurred because of what they did and in some cases the restaurants even began to desegregate so before there was any legal mandate to desegregate deriving out of the sit-in protest there was actually a lot of small scale voluntary desegregation either by individual restaurants or by localities when they had the business community come together and abandon the policies particularly in the other self opportunities for victories were critical to the momentum of these students it had the the law society divide but the students also had the benefit of attracting some outside supporters there were a lot of people who were looking at the sit-ins from the outside who sort of liked what they saw they liked the idea that this is something different there was a lot of disillusionment of the NWSEP around 1960 because the litigation was quite essentially bogged down challenges in school desegregation and some other voices could see what they were doing as a powerful critique of the NWSEP and then some more moderate voices praised the students because they liked what they were doing in terms of being best confrontational the idea that having a courtroom resolution is something is in some ways more confrontational than trying to actually stand before someone and negotiate the idea I mean even though these did oftentimes get violent and get sort of confrontational in many instances there was sort of a peacefulness about the whole episode so the students sitting there and trying to explain their case to someone not trying to change the formal law but simply trying to change an individual's mind that was standing there in front of them and a lot of commentary would pick up on this that's something that was special and important and again the importance of that would very much derive from the distinction of that from the law approach the Law Society divide is also a basis for a sense of empowerment by the students a sense of control over their movement they were the ones calling the shots and it was not given to anyone else so here we can clearly see the value of the Law Society divide as it plays out in action briefly two individuals who come in and give a partial critique maybe a sympathetic critique of some of these strict Law Society divisions that have been highlighted now while approaching the issue from starkly different backgrounds with completely different institutional settings Martin Luther King Jr. and Alexander Dickle they show some similarities which I've always found a bit striking in their efforts to expand the conception of the law each of them embraced a conception of the law that was more capacious than the traditional one which is based on formal pronouncements by recognized government institutions whereas the experience of the groups that I described before the end of this be lawyers or the students or the segregationists well their experience is creating incentives to strengthen the boundary around the law to define that boundary maybe debate about where it is and sort of had that line clarified the incentives for both King and Bickle as they saw it as the 1960s went on was to move in the other direction to try to challenge the strictness to talk about some of the porousness of what law actually worked and then just give you a little language that they used in their writings to talk about this as in a Bickle wrote that the process of resistance to Brown strategically placed we do not quite have law the interesting idea that Brown is in fact not law as Bickle defines it until some later point well beyond May 17th and 1934 the project of law then becomes Bickle went on to generate a greater measure of consent or reconsider our stance on the minority's position and King said much the same thing it was a different agenda but it was the same sentiment King would say the law tends to declare rights it does not deliver them a catalyst is needed to breed life experience into a judicial decision by the persistent exercise of rights until they become usual and ordinary in human conduct so the unfolding process of the law for King was very much part of the civil rights struggle now while they experienced it until the 1960's Bickle and King in quite different directions Bickle toward an embrace of something approaching a Burkian conservatism came toward a more radical social democratic posture they did share this basic insight that in certain circumstances a particular law meaning a product of formalized mechanism of lawmaking might fail to achieve a status of law meaning a constraint external to a superiority of the normal workings of social interaction this is a process in which there are no clear boundaries between illegal and social sphere it's all law and it's all society let me just finish up with some implications of this and divide us into a historical implication something more methodological and more tentative the historical one I think is is right that is simply that this is an important historical fact that perhaps we need to pay more attention to the lives in law society is this historical development that regardless of the analytical tools and methodological assumptions that we bring to our work this is something that had value to the people that we study and therefore we should think about it more seriously so even if we're committed to moving beyond a relational law and approach toward something more like a law as or law is orientation we should recognize that the people we're studying often express a considerable commitment to a relational law and model in certain times and in certain places the construction of law society divide accomplishes important analytical work is important to historical actors and therefore it should remain important to us so that's an historical point in terms of methodology the question then becomes should this history of the production of law society divide influence our choice of theory or methodology and this is of course a different question for us to recognize as historical fact it doesn't mean that we necessarily need to incorporate it now while times the ranks paper I felt as if I was pushing against the Tomlin's party line of the law as this really isn't the case what I'm doing is historicizing the law society divide and historicizing and of course denaturalizing it I'm pointing out the contingencies of it so in fact I think the general idea it does support the general the motivation behind this idea of rethinking legal history of in a law as way there's nothing natural with the law society divide it's important but it certainly is deeply historical in the way I approach it so perhaps one way to think beyond law end is to think more seriously about its deep riddance not only within the academy but beyond it at the same time it can't help of thinking that a recognition of the importance of these boundary drawing efforts should in some way inform the analytical tools I bring to understand the past isn't the deep immersion in documents in the world to use of past actors that legal historians differentiate themselves from other socio-legal disciplines that use and draw upon the past and perhaps distinctly in the world of socio-legal scholarship is a way historians regularly draw upon their historical subjects in making their own methodological choices in creating their analytical toolkits the real question as I see it we as legal historians care about how past actors understood the significance of this law society divide through the maker of methodological choices the real question is how this history matters for our theoretical commitments I stand here can you hear me in the back alright I think I really it's so dark back in this point so I better not stand back there one small adjustment the title of my book is called the danger of the web you know you put up websites that they don't change even as titles of things change so the book that just came out is called law and the borders of belonging in the long 19th century United States so a little bit different and speaks to in some way as Willard Hurst's law and the conditions of freedom so law and the borders of belonging law and the conditions of freedom so anyway alright read what I have had the chance to read what I did for this conference and we're engaged by it in some way you're going to be disappointed by what comes next because I can't you know one of the things about deciding to really take to heart this invitation and actually one of the things that I appreciate about this conference is the invitation to think right and to take risks so what I did was to think hard about method largely and how we would think about thinking about this law and law as sort of question but to really think hard about in terms of the material that I was working with how do the narrative structures of law and history you know how do they fundamentally shape the endpoints that we get to and might but there be other methods and ways of thinking about and doing history or doing legal history that might yield something to us and I have to say in doing this one of the things that I'm very conscious of is that I have purposefully engaged risk as a way because I think there will be intellectual rewards possibly from that and I'm sensitive to the fact that the subject that I'm working on right now is about risks and hazards that are not purposefully engaged in fact are unexpected unwelcomed aren't in any ways examples of expanding people's worlds so I'm sensitive to that tension about in the nature it seems to me of risk and hazard so anyway my current work focuses on a social history of product liability and I'm still not even sure what it means yet to write a social history of product liability so I'm on that and I have to say for those of you who have had the chance to read what I wrote here I felt a bit like I had decided to jump off a cliff and what I found just really wonderful is the engagement that I've received for that jumping off a cliff so it seems to me this is what I mean not that people have to like it or I have to think it was good but that people are willing to kind of think along with me and I think that's fantastic so thank you so anyway what I'm going to do what I'd like to do here is to say something about say something about what the experience of doing this generated for me as a set of thoughts because I decided to write I was I had found myself in thinking about product liability of thinking in terms of tragedy and I decided you know as long as I was thinking in terms of tragedy why not write a tragedy right so that was my starting point so I've written a play it may be an exaggeration to call it a play but I've written a play that is in two acts and it spans a period of time from the 1940s to this past fall 2009 the first act focuses on it has four scenes that focus on are all drawn from this thing that I call the cowboy suit tragedy so a set of incidents in which mostly young boys and we have no idea how many were horribly burned many of whom died when their gene-aughtry cowboy suits caught on fire exploded into flame and then how it was that the families came to know this as something other than an accident a personal family tragedy so how the families came to know that their process through law so the first four scenes or the first act focuses on the cowboy suit tragedy the second act focuses on takes us through the flammable fabrics act past in 1953 and takes us into other corporate offices the regal textile corporation takes us into the senate hearing rooms for the amendments to the flammable fabrics act takes us to a minnesota supreme court when the minnesota supreme court is going to decide a case involving a girl who at age four had her pajamas catch a light on an electric stove and the case that was decided in 1980 and then finally a case that is currently pending in federal district court again involving women's clothing and I mean one of the themes about flammable fabrics is that we are largely talking about clothing for children and elderly individuals so that lays that out so what I thought I was doing I thought I was just going to write a tragedy because I was thinking in terms of tragedy but what I discovered at least from my own experience of writing this was that so I wasn't thinking I wasn't thinking of law as theater that wasn't the goal here what I was thinking in terms of I was feeling that this it felt like a tragedy to me so I was going to write a tragedy but what I discovered was that it seemed to me that a play offers opportunities narrative structures that are fundamentally different than regular old prose because you get to have scenes acts right and these are different than chapters it seems to me in a book you get to have stage notes so in other words you get to have on different voices one of the other things that struck me as really different is that a play by definition it seems to me at least is incomplete without an audience now all of the writing we do we at least hope has an audience right but it seems to me that a play in the very it needs to be performed and the performance and the response of the audience is part of the creation of the interpretation so that one of the things that appealed to me in doing this as a social historian was the way in which it de-centered the authority of the author to decide to control you know the final interpretation here and that was that was I appreciated that so one of the things for in the play that for those of you who have read you'll see that every scene is incomplete every scene is left open and part of that so that's twofold one of that is it's a deliberate invitation to the audience to be part of interpretation but it's also a response to law and this came up yesterday when we were talking about Norm Spalding's comment about you know what happens after the judgment because law presents itself as final right and yet one of the things that I have been struck by in the work that I'm doing is the lack of finality and so one of the things I wanted to leave open in every single one of these scenes was to deny law that claim to finality so that's what I was doing alright what I'm going to do now is to actually disappointingly tell you, walk through a few of the scenes so that for those of you who haven't had the opportunity to read it that I'll tell you a little bit and I have to say the very act of doing this undermines all of the things that I was at work to do so I appreciate that or understand alright so the play opens so this is before the first scene opens with the Dupont rayon insignia and this is actually even hard to find these days so it's kind of a thing like this and it says Dupont and then rayon now you can just see the same circle with just Dupont in it but it used to be Dupont rayon they got out of the rayon business in the 1960s but anyway it begins with a Dupont rayon advertisement from 1940 and the way I have this is the Dupont insignia in the back and then a lilting female voice piped in reading this advertisement do they stretch? will they iron? will they wash? will they clean? will they shrink? will they fray? will they pull? will they fade? and that's the end of it so why start a play with an advertisement? two thoughts first through advertising it seems to me that companies spoke consumers about the qualities they thought understood or expected consumers to value at the same time the other thing that an advertisement says or might say is what the company is actually doing in its labs it is caring about will they fray? will they shrink? will they pull? will they write? there's another question that wasn't part of this advertisement will they burn? so the final element in this opening element is a voice that again comes from offstage in a different tenor will they burn? that's the opening to the play so then we go to scene one scene one again the opening act has four scenes and the opening scenes what I'd like you to imagine kind of listen to my words but don't look at me and imagine these folks gone they've all been fantastic and I'm sure more will be as well but imagine them gone for a moment and the stage is set with sorry right is set with a set of cushy chairs right and in each cushy chair is a man reading a newspaper and has a lamp that's lighting his and he's reading to himself and in the middle of the stage a trial is in process alright so what happens then is during this scene each of these individual men in their chairs will read an article from a newspaper over that span a five year period of time and one of the things that I'm trying to do here is that these men are not located I mean they're all on a stage together but they are not located in the same space right they're unaware of each other they don't acknowledge each other you know they don't they're not in the same place either physically or in time because it covers a five year span of time so anyway they each read a new story and it begins with a story of two brothers one of whom has died in the other who is hospitalized in critical condition in Pisaic New Jersey in November of 1943 when the cowboy suits they're wearing are ignited as each man finishes reading his article he returns to his private reading again remaining unaware of the other accidents that you have being narrated here so in the middle of this though and what's happening in this trial is testimony that narrates a gift a gift from a man named M.A. Henry who is the owner and founder of a company that bears his name that manufactures novelty items including children's cowboy suits and including the Jean Autry cowboy suit and just before Christmas of 1944 he invites the doorman in his building on the hattons up the west side to come up to his apartment and he gives him a gift and the gift is for McCormick's two youngest sons to cowboy suits so that's what's narrated this giving of this gift and then two weeks later the doorman's son Tommy McCormick being horribly burned in his cowboy suit lights on fire and then the five months of agony when Tommy McCormick's in the hospital until his death so this is narrated through a series of witnesses including James McCormick the doorman including the principal surgeon in the hospital and then including several of the defendants talking about when they how they came to use this particular fabric on the chaps of the cowboy suit because it was a fuzzy fabric on the front of the chaps of the cowboy suit that lit on fire and how they came to use that fabric that fiber and weave it into a fabric what they understood about that fabric and the scene the testimony at least in the scene ends with this exchange now with that knowledge did you ever label your cloth or send instructions out of your cloth to anybody to put them on notice first of your own knowledge that it was implantable answer I think not then come three headlines that are read aloud in quick succession so you've had these individuals who have read complete news stories they're short news stories but complete news stories and then you just have three headlines the first headline the first time in which the gene had been attached if you will to these accidents that were happening was in March of 1945 but in 1946 you again have then a series in different locales where you know the gene aughtry name and the particular cowboy suit is located or is identified as the thread if you will that ties these accidents together these headlines are read each of the newspaper readers remains unaware continues to read and then you have and then I have coming over a loudspeaker so again I'm trying to accomplish something here a loudspeaker and all of the men except for one who are reading their newspapers look at and over the loudspeaker is an AP story announcing the verdict in the McCormick case so a $64,500 verdict for James McCormick and Tommy McCormick they've all looked up when this happens and then I have a series of headlines being read as this AP story is broadcast effectively around the country they've all looked up but one that one man has continued to read his newspaper he stands in here for many and the scene closes with his reading a story from spring of 1948 two and a half months after the verdict in McCormick and three years after news that had connected the Gene Autry cowboy suit with these accidents had at least started to pop up in certain locales and he reads a story that might have been from 1942 or 1943 for all the awareness that it showed so here was another young boy like so many before and so many others that would come after set horribly aflame by a single spark while playing outside and wearing his Gene Autry cowboy suit so that's where scene one closes scene two and I'll talk about the other scenes in a much briefer way but wanted to elaborate on that one scene two takes place in US district court southern district of New York in the courtroom and also chambers of the honorable John C. Knox it's May 1948 several months after the verdict in McCormick and Judge Knox has consolidated 20 Gene Autry cowboy suit cases that are pending in his court with an eye to getting as many of them as possible settled so the courtroom is filled with lawyers lawyers for the families lawyers for the defendants lawyers for the insurers the defendants insurers the families the families are not present so one of the things that I think is important about law in the story is the way in which families and the children become objects that are at best viewed in photographs in the courtroom they are never ever present alright so and what happens in this scene is the haggling over the value of a case right the price the price of a life so you know did the child live or die in fact it turns out that he was worth more if he lived the particular defendants in the case a major retailer in this case who wasn't involved in the other cases so that there was in a sense a new pocket a new insurance pocket to dip into the number of claims that were buying for the particular insurance coverage for that particular year if you go up 5 5,000 I'll go up 5,000 so this is what you have is a barter and exchange over the value of a case the scene closes with Judge Knox so in very few moments in this 3-day hearing which you know was condensed here into a scene you have in very few cases does the question of fault come up or the question of really the children themselves and the scene closes with one of these exchanges so Judge Knox is holding a photo of a burned boy and he says a kid is scarred up something like that and he is going to get married someday and the effect of those scars on his wife is something to take into account and his own humiliation from that and that's where the scene closes so scene 3 returns to New York State Court in 1948 for the appeal of the McCormick verdict and here I have the 3 lawyers the lawyer for the McCormick the M.A. Henry Company and the lawyer for the Mill and its agent that had produced out of the fiber of fabric and what they do is to make their arguments about the case to the audience so the audience becomes the court in this scene and I won't elaborate what those what those arguments are in the final scene the final scene in Act 1 takes place in the corporate offices of the DuPont Corporation and there we're situated in the office of legal counsel office and you have an individual who is writing a series of memos to the executive committee of DuPont narrating the cowboy suitcases and on the back of the room so you have him sitting at a desk and he's reading aloud as he's writing his reports and you have him somehow or another aging over the 7 year period to communicate passage of time on the back wall is an individual who is writing a graph so you see DuPont's potential liability going up and you see DuPont's potential liability going down the common theme in the reports is new cases being filed cases being settled and then there is the refrain with no contribution by DuPont so that's how that scene and that's the end of Act 1 in Act 2 Act 2 goes through a series of scenes that I said it begins at the Regal Textile Corporation in 1956 so several years after the flammable fabrics act has been passed and a year after DuPont has closed its books on the cowboy suitcases and the issue is the inflammability of cotton flammalette produced by the Regal Company and you have four different offices all Regal Textile Corporation offices located in different cities again individuals writing memos that they are reading aloud acknowledging and considering how to deal with the fact of the intense inflammability of cotton flammalette which is the basic material for virtually all children's sleepwear in this period in the second scene which takes place in 1967 in the Senate hearing room you have two witnesses speaking for extension for the amendments to the flammable fabrics act again here the audience is cast as participating in the scene and they are the Senate committee meeting three over a decade later so this is in St. Paul, Minnesota when the Supreme Minnesota Supreme Court issues its decision in a case called GERC versus Dayton Hudson Corporation involving a girl who was burned when she was four years old in 1969 by the time the court decides the case it's 1980 she is now a 15 year old adolescent girl and it's opinion to the audience the final scene takes place in a household kitchen in Hartford, Connecticut in October of 2009 and you have a woman at work in her kitchen and a U.S. postal worker who would right now be coming down through the audience and distributing mail so distributing mail to the audience, distributing mail finally to the woman's house she gets her mail she opens a letter from the Blair Corporation and she starts reading to herself and as she reads she begins to cry and what I hope would happen is that everybody or enough people would open their letters because they've just all received a letter from the Blair Corporation that is a recall notice and that recall notice relates to Blair's you know if you've got one I'll send it back Blair's 100% Chanel cotton robes but if everybody doesn't open their letters that's fine too, right because recalls are very imperfect science people don't receive them that should etc so what happens there is in the end we have the lawsuit that this family files because it turns out that the family's mother died four years ago wearing a Blair Chanel cotton robe the family finds out about why it was that the Chanel robe is in some way responsible for her death and they then bring a lawsuit so that's how the foreseen in so a word about tragedy so in what terms is the story that I have narrated here tragic I hope to go beyond the sense that it is tragic because it's unbearably sad it is unbearably sad and it's unbearably sad again and again and again but I hope to go beyond that and part of what I'm really really interested in is and what has led me to think in terms of tragedy is that accident to ordinary people from commonplace goods arising in the normal course of everyday life unexpected transformative was and I think importantly here will remain a part of everyday life and that's really where I locate tragedy final word Arthur Miller with whom I start the production he wrote in 1947 so in the midst actually of the cowboy suit tragedy called notes on tragedy and the common man and he said he is struck by the fact that people associate tragedy all too often with pessimism and his argument is that he doesn't see tragedy in these terms at all that there is a very deeply rooted optimism this belief in the perfectability of man that he thinks so draws us to tragedy and I think is also part of what draws me to tragedy thank you very much we'll take our break and we'll remain in 15 minutes we're running a little late so try to come back on time so many of you may have been thinking exactly what I have been thinking for the last day how am I going to say something about all for these papers let's see if I have succeeded I think all of the papers represent law as a site of contestation that's not a big deal rather even this phrasing law as a site of contestation reminds me of the Rip Van Winkle experience of my intellectual life and that is if I had it is as if sometimes I had gone to sleep the year I got my PhD in 1964 where I studied political theory and woke up almost 50 years later to hear people talk about narrative structures boundaries categories etc so what I thought I should first do for myself is provide something of an intellectual history of how did we get to discourse and narrative as a way of talking not an easy way of talking for me Bob Gordon and I yesterday were remarking that sometimes we don't understand the stuff anymore so here is my effort to tell you how we got from then to now I think one way to illustrate it a way out is through art history art history was from the renaissance till the impressionists the idea of the masis the best art was the one that was the most real the one that most captured reality in Vasari's history of the artists he constantly compliments the best pictures as looking real so impressionism is an example of descent from a 400 year view that art is supposed to be in the masis and the impressionists constantly emphasized that now maybe it was the development of the photograph in the interim that forced painters to say you better do something else we're never going to beat the photograph in the masis but of course the same thing happened then with the photograph so that's one way of seeing it but now to see the same point I hope in the intellectual realm we can talk about it in terms of what Peter Novick calls the rise of cognitive relativism in the 20s and 30s you get the sociology of knowledge people start talking about conceptual frameworks frames of reference eventually in our own time the social construction of categories categories are not natural imitations of the world a la art as the masis but categories are socially constructed for convenience of understanding phenomena so it's out of this development of cognitive relativism and of the idea that we can't really know anything without first looking at the conceptual frameworks the paradigms the frames of reference that the concern with categories, boundaries borders emerges so when you talk about the boundary between law and society and whether it's fixed or whether it's permeable, it's christened you're talking about the permeability socially constructed category of the categories law and society now let me interrupt once more and say since most of you are younger than me I may be telling you stuff that is going to send you into yawning so I'm doing this more for myself than for you and if you want to come along for the ride I'd be delighted and so we get to the idea of discourse which is almost part of today's paper and the question is why do we want to talk about discourse or as Barbara did narrative structures instead of talking about reality and so once again reality is not as obtained immediately it's mediated by the categories with which you understand the world and so the effort has been to talk about how the boundaries and why the boundaries are constructed or changed and deconstructed and how those changes in the frames of reference make people understand the world differently from how they did before then there comes to be an emphasis on the instability of boundaries the ambiguity of boundaries the law society public private state market general particular base superstructure background foreground are all ways of conceptualizing the world emphasizing one of the two in the dichotomy or collapsing both together so that's sort of the background with which I will try now to talk about some of the issues in the papers since I didn't remember when I started I'm going to take stuff out of order because it will perhaps be better for the discourse so let's start with the Roy Crite News emphasis on discourse in the monetary question now this is very very different from the traditional historiography of the money question which is as he chose entirely discussed as a question of interest so if there's one sort of interest group thesis that's left in American history it's creditors and debtors and the monetary question and in 1896 is about farmers and industrialists and we have tried to show that more or less the interests line up on the money question the east is gold, the west is silver the east is hard money, the west is soft money and the west is soft money because farmers like soft money, farmers like inflation farmers are creditors and the question then is why doesn't that any longer stand as an adequate explanation for what happened Roy says the reason why we can show that this is not an adequate explanation is because of the abrupt end of the money question as political and so what he's trying to do there is to show the way in which the the political logic of the period in the 90s up to 1896 is almost immediately transformed into the economist language after depoliticizing the money question and rendering it a question of economics and so what he's immediately showing is that the discourse matters the categorization matters and if you think of it in the way in which as political you can have perhaps an interest group analysis but once you see that the terms of discourse change when you move into the economic you've seen that the change in the frame of reference the change in the paradigm has produced the change in the understanding of the money question and so in terms of money itself what he's showing and what many of the papers today and yesterday show is some form of shift from thinking of something as natural to thinking of something as socially constructed the denaturalization of money of money comes to be thought of as a question of social policy there's a whole more radical possibility of interpretation that Roy I don't mean politically radical intellectually radical interpretation that Roy I think doesn't touch and it may not be known to any of you but a long time ago Walter Ben Michaels anybody know that name published a very interesting essay on the gold standard and the problem of value now he was radically challenging the interest group theory of money and he went very far to attempt to explain it entirely in cultural slash religious terms and there was enough religious imagery up there for us to see that as a possibility to make a long story short he goes through he uses literature and especially a very important novel by Dreiser on money you read all the story you read this and and he concludes that it has nothing to do with interest it has to do with culture and what the issue is really about is value and what the issue is really about is whether as the old time religion would have it there's absolute unwavering value and the money question he says is the symbolic representation of the issue of the decline of absolute value and the emergence of modernism and religionism vis-a-vis the true value it's a very arresting argument and in terms of the form of the argument it is perhaps somewhere one might go I think it's the main problem I use it as illustrative of going further across the boundaries what I think the problem with it is that it would seem that those who are in favor of the old time religion and the unwavering nature of value should have been gold bars and not silver bars and so I don't think it works but as an illustrative dramatic effort to provide a cultural explanation it seems to me worth consulting even now alright now I will spend a short time though I could go on forever on Richard's excellent paper but I want to focus on just really one central theme which I think exists in at least three of the papers and that's let us focus on the idea of custom or convention and here I think is another aspect of the way in which the boundary issue becomes ambiguous custom as Rita shows is Janice based on one side custom is a representative of individual acts that accumulate into a custom and that amount to consent what could be more consents at James College Carter at the end of the 19th century then a custom we don't need any other kind of law if we just allow law to totally reflect society reflect custom we will have the ultimate in consent he even went so far as to say we don't need legislation at all when courts actually reflect custom we don't need elections all we need is custom so that's one side you see the way in which in the history of custom is very often invoked as a substitute for consent as a form in locking in terms of tacit consent in which custom in its consensual guise conceals organized coercion right on the other side of the ledger is prescription time immemorial unchanging custom there you see quite the opposite custom is the embedded eternal mores of society something more or less unchangeable very different from consent and these two ideas are constantly played back and forth and manipulated in order to produce either the idea that things are unchanging the prescription side or that things are capable of change because they're always based on individual acts of consent so from that issue the consent issue is how we get as Rita does to contracts eventually to social contract that the social contract is just another act of consent that legitimates social coercion now the social contract idea also reappears in I think it was Barbara's paper in this sense to the extent that you get all the way as she does to assumption of risk you're you're able to say that if people insured against that assumption of risk if which one of you is foresighted is yours or foresighted maybe you both did it in different ways if you actually can foresee the risk and insure against it it's fine likewise in social contract if you socially agree in the social contract to assume the risks then there's no injustice in enforcing anything against you so the idea of custom and convention is another example of unstable boundaries another example of why the discourse of custom and convention can go one way or the other because of the basic ambiguity of the social contract now Chris is the paper on law as as the site of contestation again he shows that the way in which the parties conceptualize the law society boundary and the content of the law and society boundary determine very much how they came out Martin Luther King and Bickle could have the same idea of the distinction between law and society though they saw the content of that of social custom as very different so I want to now say a few words about Barbara's paper first I want to share with enthusiasm for risk taking I know I wouldn't have had the courage to do it so bravo but the question you pose is what is the advantage of using drama versus history the history of products liability to explain if that's what she's explaining history of products liability so here we have another aspect of the it may be the most important aspect of the instability of categories that is the level of generality or abstraction that is engaged if you look at the papers we've had so far you'll see that practically everybody knows about abstraction as a move abstraction as having significance moving away from the particular in the concrete has real consequences and I think the realization that the level of generality at which you create a concept or arrange a narrative has critical consequences for how you think now this particularity generality issue will is illustrated in Barbara's choice of form in the same way as we often talk about whether social science or the novel can get closer to truth and reality than social science the proponents of the novel say social science is too abstract to reified independent of the human currents and passions that make up life so I think the choice of drama choice of the novel the feeling that if you discuss the history of products liability in terms of legal doctrine you're not going to be be able to capture the unbearable pain as well as the tragedy of the situation then I think there's another aspect to her choice of drama to resist commodification the way in which money substitutes for pain, suffering and death is a form of commodification in particular I was very struck as Barbara ended with the value of life issue because I had written it down already I was thinking of the pinto case so the pinto case products liability case remember they put the gas tank in the back not realizing how could they not realize that a rear collision was much more dangerous when the gas tank was in the back and so as with Jean Autry there were a lot of people who burned to death after rear collisions and in the pinto case the question was whether having done a cost benefit analysis after they knew about the issue Ford decided it was better to pay the damage judgments for death or burns rather than to fix the design we cost more to fix the design than to pay for the injuries there raised a real question about whether since much of toward law and products liability says that if you if you spend enough to prevent the accident and the accident occurs you're not liable so in the Ford pinto case the thing that was so striking and illustrative of this idea of abstraction and reification was it turned out the way in which Ford pinto measured damages for the purpose of doing the cost benefit analysis which would decide whether they had to change the designer and how did they measure the value of life they measured the value of life by the insurance cost of somebody's life assuming of course that he or she usually died in bed they didn't account for the pain and suffering of the burns they in short completely abstracted the idea of death from the circumstances of death which is exactly I think what Barbara was attempting was attempting to illustrate by this unbelievable attention to the painful details of what it means to burn and then to die so I could go on but my time is up thank you very much I'm inclined to open in for questions unless anyone has a burning desire yes I have microphones and we should turn we should turn on the microphones on the table here first empire's economy not directed to that when industrial capitalism replaces earlier trade or agrarian capitalism the locus of competition shifts from person to person to company to company or corporation versus corporation and now the finance capitalism has replaced industrial capitalism the competition is now to peoples or peoples versus peoples so part of empire or globalization as economy is the increasing abstraction of capital and what worries me a bit about turning too much to empire and the global is that interpersonal subordination control issues race, gender class, a lot of other things have now been in some way subsumed into subordination control issues of the imperial of the subaltern of peoples and interrogation of that subordination makes academics now very nervous because of cultural relativism so the move to the empire as economy seems to depend on these two different trajectories one the increase in abstraction of the economic and two the need for continued particularity or relativities in terms of issues of subordination and control so the empire question is how should the old historians deal with those twin trajectories the second production much of the papers treat law capital L or little L laws as product or products and as such as such products the law as move in order to impart ownership of more L and then raises issues of embeddedness this and then this but the but there's not much attention to the number of historians on the production of law by which they don't mean law of practice but rather the social forces, cultural forces, political forces economic forces and traditions upon which they depend which are necessary to the production of law third question very short to Roy Prykner I was struck in your narrative beginning with private bank notes that both the American Revolution and the French Revolution depended for success heavily on paper currency indeed I don't know of any revolutions which were successful or partially successful that didn't depend on paper currency and perhaps that's because of the disruption that revolutions cause in production of the labor I'm not sure you'll forgive me if I I'm not sure that I understood the framing of your question about empire and economy but let me see if I can unpack it from the way that in terms of what I think I understand first I appreciate your staging of capital from mercantile to industrial to finance capital one of the things I'm trying to do in my work is actually highlight that that staging, that developmentalist evolutionary staging is a particular staging of modernity that doesn't actually apply globally so in many global contexts mercantile or so-called gimmineshaft capitalism operates alongside industrial capitalism alongside the high technology of finance capital so I want to think about those different temporalities collapsed at once that's the terrain that I'm examining empirically that allows me to do that and I actually think it's not a question of a specific as I said exotic outside but in fact we need to think about the ways in which what Marx called extra economic coercion exists alongside economic coercion even in a place as glamorous and modern as Los Angeles so for me that's a gesture that's a non native as gesture that's about thinking the colonial as a way to think the modern so I'm not sure that your question about cultural relativism applies because I'm not assuming that there are different cultures with different values I'm actually interested in the ways in which the logic of capital produces culture itself name culture as an absolute value to cite Morton just now I'm not I'm not posing culture as an a priori absolute value I'm interested in the ways in which the Pandora's box of exchange values which in fact is not a Pandora's box because what exchange values do is in fact in the form of governance restrict negotiability and we saw this perfectly in Roy's paper the move from the you know a variety promissory and bearers to the note itself as property is about a restricted negotiability similarly the evidence I gave in the Indian negotiable instruments act of 1881 it's about a restricted negotiability that allows for a certain kind of governance so I don't actually think that what I'm posing is a particular study of an empirical project which is empire and economy I'm interested in the ways in which capitalist development globally produces different temporalities different forms of subordination different names for culture and it's up to us as historians in all of our different areas of expertise to actually elaborate those technologies I'm not sure if that's an answer for you we're going to move on we're going to keep going sorry you mean in globalization of peoples to peoples Roy did you want to respond or anyone else quickly the point about the revolution is really I think right on target interesting to the during the Civil War also and certainly during the revolution American paper money inflates that it loses its value it does so not immediately but over the course of time and it's experienced by certain people certainly people in the finance world as somewhat traumatic and they said look at this terrible experience that we had in the revolution well if you want to really look at the experience you know a bunch of people who had no chance won a war against the greatest empire right it's an incredible success the revolutionary story the fact that the money inflated is small beings completely and I'd say the same thing for the Civil War so the fact that people eventually experience this as you know in the rhetoric certainly finance its experience as Proma I think is a really telling and interesting moment rather than being the cause for this triumphalist discourse which you never see I'm sure I need a microphone but maybe I do okay thank you first of all let me say how much I enjoyed Professor Kreitner's explanation of our changing concept of money between two critical times in our history and and I'm going to try to see that I can properly complicate it for this august panel but let me be brief you talk much about and I've heard that also from Dr. Brueh about categorical imperatives or a priori imperatives being a little contiguous I'm wondering whether it's whether we should continue to search more for our a priori categories in law that can stand as a beacon or as something to measure our fast moving economy fast moving transfer of wealth wireless transfer of wealth and a whole new concept of transactions in that realm and from my perspective I think that concept should not be dismissed and then I would like to know if you Dr. Kreitner actually believe that we should be looking for those things for those categorical imperatives then what is academia's responsibility in it to elucidate and to explain those concepts in order to possibly avert economic disasters which we recently have experienced that's it right so my my sense is that categorical imperatives except one friend in the most general terms like seek justice are very difficult to deal with so I think we should all seek justice I think in terms of the role of academia in doing that I can tell you the way I seek thinking about money and the my goal in this is related to justice at least in my mind and it's related in this way I think of what I'm doing is trying to figure out how certain categories that we live with today that seem taken for granted got that way so how certain ways of thinking say about the money issue and I've done this in other places about different issues just part of the world rather than something that we can do something about and so it makes us quietest regarding all sorts of arrangements that that govern our lives where I think we would do better to actually be politically engaged about those arrangements now that sometimes goes against what a lot of people have in mind when they say that something should be a categorical imperative because they think that would mean that value would be absolute and in that sense maybe there's a tension I don't think it's deep down I keep thinking of Perry Goldwater's campaign slogan in your heart you know he's right so that's the terrible place that this can go but I don't think that those things are completely in tension I think they're my sense of what seek justice means always ends up in this open place which becomes a site of contention and at that point or a contestation and at that point we end up fighting I think fighting actually is a good thing for people who live together to do better than to sort of passively let things be controlled by others I have something to say about the categorical imperative since I still teach for the metaphysics of morals in my graduate seminar and that is first of all I don't think I want to take your call as a call to ethics before politics and so every time I read that text that's what it reminds me of it reminds me about instrumentality and if there's one thing that the academic study of law does is often reproduce law as I said yesterday's is simply an instrument and I think that your question is asking what are the instrumentalities of law that can create more justice and that's one way to ask the question but another way to ask the question is to go back to think about ethics and to think about law and ethics and a categorical imperative I don't actually think is a priori in fact Kant says it's the product of a great deal of deliberation it's the end of a long process of thinking and judging well so I would say that in order to supplement the instrumentalities of law we need to have some techniques and processes to think about ethics so all the discussions for example over the financial regulation today and you know credit card companies all the promises that have been made but have not actually been institutionalized to regulate the economy I'm the benefit since I teach in Canada we don't have a tanking economy because we actually have banking regulations so my salary hasn't tanked we actually have salary right so I appreciate these instrumentalities but what's interesting about the public discussion is that they are purely directed at the instrumentalities of how to sort of circumscribe the power of computer derivatives etc in the financial market but there hasn't been a public discussion about the sheer a collapse of ethics publicly in this country there's been no discussion about that and so I don't think we can think law and its instrumentalities in an efficient way unless we think the other side that would be the content point I think thank you very much John I have a question for Barbara taking up Morty's question we'd love to hear more about it so Morty asked what did you learn about the drama versions I've read the string version here so I want to know more about what the dramatic we're talking about two thoughts about the kinds of things that might happen and some things that might be difficult to tell for the dramatic the first is that the problem I'd be able to add that I saw in this version but one of the problems with what Morty called the commodification that happens in the dam in this case involving personal injury of some kind is the nothing on the cells of the many different meanings that the money can have actually it's in this way your paper might be in dialogue with Morty a little bit because of the social meanings of money and the things on the cells in wonderful detail about the way in which money can be many very different kinds of things it's very difficult to get at that through the usual sources of the history of injury of all acts of law but maybe the dramatic form could let you do that especially if you were to allow yourself to move away from the sources a little bit, to be imaginative to make stuff up but nobody you are we know you are now so it might be that you could more effectively tell the story about the many different meanings of money and keep looking at the meanings of money that the plaintiffs themselves on their lawyers themselves bring to the story because their agency is involved necessarily in their lawyers being in the courtroom on their behalf maybe a minimal agency but there's agency there and they bring meanings to it and ideas to it as well and it allows you to tell a better story a richer story than the straight scholarly approach might allow you to do and a downside though that the matter of structure you've adopted here might be limits of its capacity to describe big structural changes that are happening at the same time so here you're a 50 year split between the 40s and 2009 where we're left with this dreadful sense of inevitability and lack of change and the persistence of brutal and horrible and sad death there are all sorts of dramatic structural changes that have happened across exactly the same period that radically resituate these considerably horrible examples so for example there's no organized plaintiff's bar in the 1940s in the time of cases you're describing at the outset by 2009 there's probably an American Association of Justice trial in a box for the chenille robes there's going to be organized effort and constituency for identifying chenille robe cases and I don't know exactly how I would bring them so the institutional context is very different the other thing that strikes me is that we want to know a little bit about change over time in product injuries so if product injuries are anything like automobile accidents that I'm met and they are there's a dramatic decline in the incidence of product injuries over time that would change radically the meaning of chenille robe incident I would think it would be especially radical change if the decline of the injuries is related to the other structural changes like the robes and plaintiff's bar so this is an invitation to think about the virtues and the limits of the other well that's fantastic you know one thing in terms of one of the hazards can't go away from that word can you one of the it strikes me risks of the costs of the particular protein took is that it lends it flattens time which is what you're talking about it flattens and it renders something historical outside of time can you suggest an unchanging quality to this I think there is that risk and I have a couple of responses to