E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Conflict between
debtors and creditors exists to some extent at all times and everywhere, but
under some conditions important shifts in the relationship occur. This book
seeks to explain what led to some of those shifts in American debtor-creditor relations.
Three issues stand out in the analysis: constitutional federalism; business
cycle downturns; and debtor social movements.
The privileged
position of property, bolstered by contract, gave creditors the undisputed
upper hand in the original English colonies. Federalism was a potential threat
to this relationship, in case the newly constituted states tilted the balance
more to debtors and away from the creditors, especially creditors located in
other states. The constitutional reservation of bankruptcy to the federal
government was intended to forestall this development. As the early chapters of
this book document, throughout the eighteenth century some state legislatures
did indeed respond to their constituents with forbearances, moratoria, and even
outright nullification of Supreme Court decisions.
These
legislators’ innovations were a response to business downturns that affected
their constituents. In the agrarian Midwest, agricultural producers relied
heavily on debt to finance the crop cycle and then were at the mercy of the
weather to produce the crop and at the mercy of the markets to recoup their
expenditures. The value of their crops could decline but the size of their
debts could not. State legislators understood that the creditors were likely to
be New York banks.
The Civil War
was a special case in terms of economic dislocation, in that nearly the entire southern
population was transformed into debtors, with white property owners indebted to
keep their land productive without their former enforced labor supply and the
former slaves indebted through the share-cropping system. Southern legislatures
responded with sweeping relief for the white planter class but also with laws
that all but criminalized debt for the sharecroppers.
Congress,
meanwhile, was able to act only sporadically in response to the recurrent
financial panics of the eighteenth century, and the measures were soon
repealed. By the time something like the current bankruptcy regime was
established, it incorporated many of the features from the states’
experimentation, such as state exemptions.
The creation of
whole communities in which indebtedness was a common experience spurred on the
organization of debtors, some organized to disrupt foreclosures and others
organized to influence the state legislature to pass favored relief measures. These
social movements resulted because, in the terms of sociologist C. Wright Mills,
individual troubles became understood as social problems. The inability to pay
one’s debt was reconceptualized from the creditors’ favorite narrative of
character defects to a sense of a structural defect in the economy.
An example comes
from a twentieth-century dislocation, the Great Depression, which left
one-third of the work force unemployed. It was irrational to assume that
suddenly so many workers had become lazy. The idea that such widespread
unemployment had systemic causes led to varied types of social activism and
demands that the government take steps to alleviate poverty and shore up the
economy.
More recently,
in the 2008-09 recession and in the 2020-2022 pandemic, organized pressure arose
for relief from eviction, foreclosure, and student debt, and there were again
short-lived responses to provide some types of relief. The authors note that “the
new [debtor] organizations have worked deliberately to reframe the experience
of overindebtedness from an individual experience associated with personal
shame and/or moral failing, to a collective and morally neutral problem (pp.
152-153).”
I would add a
few glosses to the analysis. I agree with the authors’ argument that European
historical precedent shaped the way that the new nation conceptualized the
balance between the interests of debtors and those of creditors. I would,
however, look beyond the East Coast. There is an interesting Spanish heritage in
a number of the states that joined the Union after the original thirteen. Just
as the significance of property and contract was a strong inheritance from
English common law, Spanish civil law incorporated from late medieval times an
emphasis on compassion and concern for the poor. This emphasis, derived from
the strong Catholic influence on Spain, carried over to Spanish colonies just
as common law carried over to the English colonies.
The Spanish
history of debtor-creditor relations was kinder to debtors, including a
prohibition against leaving the debtor without means to support a family or make
a living. This heritage persists in states such as Texas, where the state
exemption includes the homestead and tools of the trade, provisions that would
allow debtors to support their families. New Mexico is similar, although with
lower dollar limits. A comparison with Mexico’s Ley de Concursos Mercantiles
is instructive.
The relative
weakness of twentieth-century debtor organizations also needs further
consideration. The creditors employ sophisticated lobbying and deploy campaign
contributions to elected officials; they also convey, through their
advertising, that credit cards let the consumer pursue Caribbean vacations and
designer clothes. The credit card holders may in fact barely be making ends
meet by using their credit cards, but the creditors’ advertising itself allows
the lobbyists to insinuate that consumer debt represents undisciplined spending
and should not be rewarded. Debtor organizations are hard pressed to compete
with the creditor lobby.
Eighteenth-century
debtors usually secured debts by offering their land, homes, and equipment as
collateral. The fact that they were property owners meant that they had a high standing
in their communities and thus probably a greater sense of agency. Their
organization as debtors helped stabilize their communities, and they were
likely to be well integrated into local and state political networks.
In the twentieth
century, although secured debt is still important for homeowners and car
owners, unsecured debt has become much more important. Credit cards are the
leading example. Moreover, at some point in the monthly credit card billing
cycle, nearly every American is a debtor. Many Americans pay their bills in
full at the end of the cycle, and these people do not think of themselves as
debtors and are unlikely to organize. Moreover, during the COVID-19 pandemic so
many retail outlets became cashless that credit cards became routine for all daily
expenditures. Credit has become normalized -- the dangers of debt, not so much.
The Political
Development of American Debt Relief integrates several disciplinary
perspectives into a readable, engaging narrative. Besides finding a place on
the bookshelves of law professors, this book would be an interesting addition
to reading lists in economic history and in sociology courses on social
movements. The tensions depicted in this book are durable and unresolved, and
this volume is valuable for illuminating them in the American context.
Teresa A.
Sullivan is President Emerita and University Professor Emerita at the
University of Virginia. She can be reached at tas6n@virginia.edu.