Tag Archives: legal history

The Rise of the Model Law as a Mode of Governance

This post originally appeared at the Legislation Law Prof Blog

A while back, we noted a forthcoming article by Alexander Hertel-Fernandez, which asked who passes business’s model laws. We’ve been keeping our eyes out for other writing on model laws, and later this week we’ll share a few recent articles.

First, though, it’s worth remembering that despite the recent wave of media and scholarly interest, the model law is hardly a new tool of governance. The graph below shows appearances of “model law” and some variations of the term, in books published since 1820 (and subsequently scanned by Google).

Screen Shot 2015-05-04 at 11.33.51 AM


The meaning of “model law” during its first blip, around 1860, is generally different than current usage. Back then, “model law” referred to everything from a law that set the model for the Catholic church to a law seen as exemplary, but not intended to be replicated.

The rise of the model law as a mode of governance appears to have come in the Progressive Era, around 1910. In that year, the Russell Sage Foundation published a model tenement house law, and by 1912 the annual meeting of the Association of Life Insurance Presidents included a report on progress of a model law on the registration of vital statistics.

What isn’t reflected in the graph is that these social reformers and business associations were picking up on a movement for uniformity that got rolling a couple decades earlier. According to the official history of the Uniform Law Commission, the founding meeting of the American Bar Association in 1878 called for greater uniformity of state laws. By 1892, the Commission had been founded as a special committee of the ABA, and in that year, the Commission recommended its first three acts, one on the topic of acknowledgements, and two on wills and estates.

Uniformity was a hit, and the fever for model laws soon spread well beyond the ABA. By 1920 associations and reformers were circulating model laws for civil service, morbidity reports, weights and measures, and juvenile courts – and calling for more, to regulate everything from corporations to indoor ventilation. It was off to the races.

Later this week, we’ll highlight a few recent articles that give a sense of where the American passion for the model law has come, and how they are now being used to govern everything from abortion to farming, consumer protection to the right to counsel.

On Right to Work, Part 2: Envisioning a *real* right to work, from a French revolutionary to Frank Underwood, via FDR.

This post originally appeared at the Legislation Law Prof Blog

Yesterday’s post sought to understand why Scott Walker might have rebranded “right to work” as “freedom to work.” Among other things, his move makes one wonder if conservatives might be concerned that some Americans could (mis)understand “right to work” to actually mean what it says. What if people believed they should have a real right to work?

It isn’t entirely inconceivable. The notion that people should have a right to work has a long history, and has emerged from time to time in policy proposals. Once in a long while, politicians have even sought to act on the proposals. Today, the idea remains very much alive, and could even have a natural constituency.

One early proposal for a right to work came in France, in 1839. Louis Blanc, a Parisian journalist, wrote a series of articles that would be collected and published in 1840 as The Organization of Labor (l’Organisation du Travail). Blanc was a critic of social conditions, and believed that the market would never provide jobs sufficient to meet the needs of the poor. His vision? As he wrote, ASSURE the poor man work.”


Louis Blanc


Blanc proposed to do this by having the state set up a system of “social workshops” in various branches of industry. The government would begin by regulating these closely, including the scale of employment; but after a few years, Blanc believed, the workshops would become self-sustaining voluntary associations.

In the wake of the Revolution of 1848, Blanc became a member of the provisional government. This provided a chance to realize his vision. The government published a decree announcing it would bind itself “to guarantee the existence of the workman by labor,” and to “guarantee labor to all citizens.”

The workshop system began to be set up, and workers were recruited to help build public infrastructure. Yet ultimately the system neither received the full support of the government, nor delivered on the promises of guaranteeing work to all citizens. Blanc fell out of favor both with the poor and the National Assembly, and was forced into exile.

Although his experiment had failed, Blanc’s ideas lived on, and spread. By 1911, an English version of his proposal had been published in the United States.

During the Great Depression, President Franklin Delano Roosevelt began to develop the ideas that would lead him to suggest Americans have a right to work. In his 1944 state of the union address, he argued that during the course of the Depression and the Second World War, Americans “have accepted, so to speak, a second Bill of Rights.”  He put two rights at the top of the list:

  • The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
  • The right to earn enough to provide adequate food and clothing and recreation

Roosevelt died the following year; his bill of economic and social rights was never adopted as part of our written constitution. The work relief programs of the New Deal were neither imagined as, nor converted into, ongoing social workshops. And although the Humphrey-Hawkins Full Employment Act authorized the creation of a “reservoir of public employment” as a response to high unemployment during the 1970s, such a reservoir has never been established.

Nevertheless, FDR’s vision remains alive in contemporary political debates, and the American policy imagination. In a 2004 book, Cass Sunstein described the Second Bill of Rights as “FDR’s Unfinished Revolution,” and argued that we need it now more than ever. When Sunstein was nominated by President Obama as a top advisor, conservatives seized on this as a reason to oppose his confirmation. Glenn Beck, master of the paranoid style, even cited the Second Bill of Rights when he named Sunstein “the most dangerous man in America.”

So the idea of a real right to work is still with us. In fact, just a few weeks ago it was proposed by none other than the President of the United States.

[Spoiler alert: if you haven’t yet binged your way through the first two seasons of House of Cards, consider doing so before reading on. Or you can just catch up on the plot here.]

The president in question, of course, is Frank Underwood, not Barack Obama. In the latest season of House of Cards, Underwood confronts an unemployment crisis by proposing a radical work-guarantee program. (This isn’t the first time the policy has played a leading role: Kevin Kline created such a program when he played POTUS in the 1993 film Dave.)


The fictional political world imagined by House of Cards is incredibly cynical, and some reviewers have found its policy-focused plotlines to be tedious. But its creators have tried to imagine how a real right to work policy might play out, and are effectively screen-testing the idea in front of millions of Americans. They have prompted commentators to debate whether it could happen. Does the political deals the show depicts defy political logic? In any case, would the policy be legal? Is it doable in the real world? Is it just plain bonkers?

Meanwhile, out in the real world, scholars have laid out proposals for how a job guarantee program might work. Bill Quigley, a professor at Loyola Law School in New Orleans, has proposed a constitutional right to a job at a living wage. Pavlina Tcherneva, a professor of economics at Bard College, has argued (here and here, and in this video) for creating jobs in the social enterprise sector, rather than through direct public employment. Her proposal is informed by prior research finding that after the 2001 economic crisis in Argentina, poor women far preferred the government’s guaranteed jobs program to the cash transfer policy that replaced it.

What might Americans think of a right to work law that lived up to its name? You might find potential supporters in unexpected places. In his book, Sunstein notes that a 1998 poll found 64% of Texans agreed that “the government should see to it that everyone who wants to work can find a job.” Even a majority of self-described conservatives agreed with the statement. (The complete polling data are here.)

Millennials could be a natural constituency for a real right to work law. The effective unemployment rate among Millennials (18-29 years old) hit 16% as recently as 2013. Since then the situation has gotten a bit better, but the unemployment rate for younger Millennials (16-24 years old) is still more than double the overall national rate.

A Pew study has found that Millennials are more likely than older generations to say they support an activist government. But the parents of Millennials might also see the value of a jobs program, since currently they are the ones doling out financial support to their kids, a pattern that is cutting into their retirement savings.

Whether or not politicians will propose a real right to work, and whether it could gain public support, remains to be seen. For the time being, “right to work” still refers to policies that dismantle the membership and collective bargaining models that labor unions and employers have relied on for decades. In Part 3, we’ll look at policy ideas that unions and legislators might pursue now that “right to work” is law in half of the states.

Jefferson on property, on his birthday

Today is Thomas Jefferson’s birthday; he would be turning 271 years old.  It feels like a good day to mention how one of Jefferson’s writings on property has influenced my thinking about urban farming.  In the fall of 1785, when he was 42, Jefferson was living in France.  In late October, he traveled to Fontainbleau, a village outside of Paris where the king had a palace, and went every year to go hunting.

Pierre-Denis Martin, Vue du Château de Fontainbleau (1718-1723). Click for source and higher resolution image.

Pierre-Denis Martin, Vue du Château de Fontainbleau (1718-1723). Click for source and higher resolution image.

This was Jefferson’s first visit to Fontainbleau, so he decided to take a walk to the top a nearby hill and get a view of the countryside.  In a letter to James Madison, he wrote that

As soon as I had got clear of the town I fell in with a poor woman walking at the same rate with myself and going the same course. Wishing to know the condition of the labouring poor I entered into conversation with her, which I began by enquiries for the path which would lead me into the mountain: and thence proceeded to enquiries into her vocation, condition and circumstance. She told me she was a day labourer, at 8. sous or 4 d. sterling the day; that she had two children to maintain, and to pay a rent of 30 livres for her house (which would consume the hire of 75 days), that often she could get no emploiment, and of course was without bread. As we had walked together near a mile and she had so far served me as a guide, I gave her, on parting 24 sous. She burst into tears of a gratitude which I could perceive was unfeigned, because she was unable to utter a word. She had probably never before received so great an aid.

Jefferson wrote that “This little attendrissement, with the solitude of my walk led me into a train of reflections on that unequal division of property which occasions the numberless instances of wretchedness which I had observed in this country and is to be observed all over Europe.”

The property around Fontainbleau, he observed, was concentrated into the hands of just a few owners.  These landowners employed some of the villagers, but these were ultimately fewer than “the most numerous of all the classes, that is, the poor who cannot find work.” Jefferson asked himself, “what could be the reason that so many should be permitted to beg who are willing to work, in a country where there is a very considerable proportion of uncultivated lands?”

Most obvious, of course, was that much of the land was reserved for hunting.  But Jefferson reasoned that it was the enormous wealth of the landowners that allowed them to ignore the additional revenue they might generate by allowing people to cultivate their land.  An equal division of property, Jefferson observed, was “impracticable.” “But the consequences of this enormous inequality producing so much misery to the bulk of mankind,” he argued, mean that “legislators cannot invent too many devices for subdividing property.”

Jefferson went on to consider some of these devices. All children could be allowed to inherit property, rather than just eldest sons.  Or property could be taxed progressively, above a certain threshold.

But then comes the most interesting part.  Jefferson concluded that:

Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labour and live on. If, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be furnished to those excluded from the appropriation. If we do not the fundamental right to labour the earth returns to the unemployed. It is too soon yet in our country to say that every man who cannot find employment but who can find uncultivated land, shall be at liberty to cultivate it, paying a moderate rent. But it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.

Jefferson’s reasoning seems to flow straight out of Locke’s thinking on the distributive consequences of converting common land into private property — what has come to be known as the “Lockean proviso.” If we understand land to be a common resource, then the conversion of some of that land into private property, Jefferson argues, triggers a responsibility to ensure that people who don’t have access to property have some way of earning a living. During periods of economic crisis, “the fundamental right to labour the earth” returns to the unemployed. Jefferson even suggested how that might be coordinated: unemployed people who can’t find work, but who can find unused land, should be able to cultivate it for a moderate rent.

Writing in 1785, Jefferson didn’t think the economic situation in the United States merited such a response. At the time, uncultivated land seemed to be abundant — although native Americans might have disagreed with the assumption that it was in fact unused — and a policy of ensuring widespread smallholding seemed sufficient to Jefferson.


How are Jeffersons’ ramblings relevant to urban farming in the U.S.?  Admittedly, we have no king, and land in and around American cities is not reserved for the royal hunt.  But there have been periods in U.S. history — perhaps including the current period — when people have tried to figure out ways of granting unemployed people access to unused land, so that they might grow some food.  This, despite the fact that Jefferson’s “fundamental right to labour the earth” never made it into the Constitution or Bill of Rights.  How might the lingering notion of such a right motivate the ways that people have thought about and organized around urban land use?  And what would Jefferson think if he were to see certain parts of Detroit, Cleveland, Chicago, or other post-industrial cities in the United States?  Would he feel discomforted by the sight of “uncultivated lands and unemployed poor”?  Would he approve of efforts to put land into use as farms and gardens?