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Balkinization Symposiums: A Continuing List                                                                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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Ideas and Interest: or Why the Have-Nots Used to Come Out Ahead
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Thursday, August 22, 2024
Ideas and Interest: or Why the Have-Nots Used to Come Out Ahead
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Stephan Stohler
In his agenda-setting book Age of Reform, Richard
Hofstadter claimed that an ethical code had evolved alongside the yeoman
farmers of the nineteenth century. That code made a promise. If farmers worked
hard and conducted themselves honestly and frugally in their economic affairs,
they could largely expect to live a life where their needs were met. The
interesting part of Hofstadter’s story occurred in the latter half of the
nineteenth century when industrialization ruptured the relationship between
economic behavior and individual ethics. That rupture was driven in no small
part by mechanical innovations and volatile market prices. To overcome slight downturns in agricultural
prices, farmers often transformed their farms into industrial projects, investing
in land and machinery to increase their overall yield. The problem, however, was that although their
calculations were individually rational, the absence of coordination only
exacerbated price declines as farmers collectively tended to overproduce, often
leaving farmers in a position where they could not make good on their debts. The interesting piece of Hofstadter's work is not the
economic story but rather the knock-on effects of such failures for a more
general understanding of the relationship between economic behavior and
collective morality. Industrialization,
especially agricultural industrialization, radically transformed an ethical
system for which many Americans were unprepared. And Hofstadter's implicit
thesis was that the politics of the Age of Reform could not be understood
unless historians appreciated reformers’ dual efforts to shore up not just the
economy but also to reimpose a moral order on American life. While Hofstadter’s argument is interesting
for understanding the politics of the era, the book never provided the kind of
systematic defense of this argument. Enter Zackin and Thurston. Their book examines the same
economic and moral universe over a longer time horizon while simultaneously constraining
their focus only to periods of legal reform surrounding debt. They portray a world shaped by structural
factors, while also paying attention to a discrete set of interrelated ideas
about debt, race, and worthiness that not only have the potential to
significantly alter the prospects for legal reform, but also help us understand
how debtors made sense of their economic interests, and how they wished others
to understand them. Zackin and Thurston share Hofstadter's conjecture that this
story is more convincingly told not by rehearsing statistical evidence about
the magnitude of debt, whether white, Black, farmer, or consumer. And, like
Hofstadter, they focus on the interaction between structural factors and ideas that
caused debtors, creditors, and others to understand their material interests in
substantially different ways. But Zackin and Thurston go beyond Hofstadter by
focusing in far greater detail on how political actors deploy these ideas in
service of legal reform and for larger cultural understandings about who should
be entitled to debt relief and who should not.
Zackin and Thurston test their ideas against the varied success that
debtors had in seeking government relief: debtors prevailed sometimes, but not
always, during periods of legal reform related to debt, first in the states and
subsequently at the federal level. Zackin and Thurston largely, though not
exclusively, attribute the changing fates of these groups to structural
causes---in particularly a volatile nineteenth-century economy---and, in part,
on ideas---about farmers' identities as debtors, whether individuals are
themselves to blame for their insolvency, and whether their insolvency should
more fairly be understood as the product of forces beyond their control. There is one story, however, which does not follow this
pattern. Zackin and Thurston make the
compelling case that these 1978 pro-debtor congressional reforms were the
product of an endogenous administrative state-building process, as
quasi-judicial bankruptcy administrators, whose positions were created during
earlier periods of legal reform, persuaded lawmakers to adopt pro-debtor regulations
even though debtor organizations were themselves largely absent. Their assessment is largely in line with
other studies of debt reform, which conclude that the 1978 reforms flew “below
the political horizon” (122). But Zackin
and Thurston add to this story by explaining why pro-debtor organizations
failed to organize and mobilize for the occasion. The only detail missing from this story,
however, is an explanation as to why these administrators came down on the side
of debtors. Indeed, one of the
compelling lessons of the book is that—at least since Shay’s rebellion—ideas
had the potential to make insolvency appear to be the product of either
individual or structural failures, with implications for debtor relief. Why did
the administrators driving the 1978 reforms break in favor of debtors? I think
the answer to that question would go a long way toward integrating the 1978
reforms into the larger thesis of the book. Although I am not an expert on the American history of
debt, the brief review of existing literature suggests that Zackin and Thurston
make a novel contribution here when they encourage us to think of nineteenth-century
white farmers as adding a collective debtor identity to their repertoire. Once they
understood themselves as debtors, these white nineteenth-century farmers
understood credit to be as much a part of farming as plowing or harvesting,
allowing them to overcome more traditional---and demobilizing---narratives of
debtors' responsibilities. The most persuasive evidence that Zackin and
Thurston provide on this front is a series of stories and quotations
illustrating how white farmers organized and mobilized as debtors, articulating
their political demands in those terms. Their Black contemporaneous
counterparts, by contrast, failed to develop a debtor identity in part because
they often failed to have the collateral necessary to borrow against, or in the
relatively few circumstances when they did, Black farmers (and others)
frequently found it in their interests not to highlight their status as
debtors, instead emphasizing their responsible, frugal, and trustworthy
individualized traits. Neither was
conducive to collective political organization and mobilization, interfering
with collective identity formation. Although Zackin and Thurston do not make the concept of
identity formation a core theoretical concern of the book, I will note that their
argument about identity formation shares notable similarities with some of the
scholarship on legal mobilization, and especially Stuart Scheingold's claims
about how legal rights sometimes serve as powerful cultural symbols outside the
courtroom. These cultural symbols,
Scheingold claimed, sometimes help political movements overcome the
demobilizing rhetoric of individual responsibility and instead organize and
mobilize in response to state failures according to a common identity. In that sense, Zackin and Thurston are in
good company. What is interesting,
however, is that Zackin and Thurston do not provide a single quotation of
debtors making political demands in the language of legal rights, even in the
twentieth and twenty-first centuries. What this means for Scheingold’s thesis
is not wholly clear. Likely, it may simply mean that there are other ways than
“rights talk” that legal reformers can use to overcome the effects of
demobilizing rhetoric. As I have tried to suggest here, Zackin and Thurston’s
book contributes to the study of American political development because it
takes ideas seriously, treating them as crucial explanatory factors that have
the potential to alter how people understand material interests. In that regard, the book fundamentally
challenges our tendency to contrast ideas with material interests. Zackin and Thurston show that money does not
speak for itself. Rather, it is steeped in an array of cultural understandings
and subject to change as those understandings change. Of course, the quotations
marshaled in this book do not always allow us to conclude whether those ideas
are deployed merely for strategic purposes, whether they are constitutive of
identities, or whether they persuade lawmakers who participated in debt reform
to behave in ways they would not have otherwise. Given the state of the
discipline, that is too tall of an order.
That said, this book encourages us to take up this task and to think
through more carefully how we might demonstrate the ways that ideas act as
mediators in the political world. In my view, this line of inquiry is the most
exciting of the many contributions that Zackin and Thurston make. And I suspect
that we will be arguing about its implications for some time to come. Stephan Stohler is an Associate Professor of Political Science at Syracuse University. You can reach him by e-mail at sstohler@syr.edu.
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