Faculty Bibliography

By revealing a community in radical transition, constitutional crises expose money’s relationship to the market. That essential dynamic is more easily disregarded in routine times. Modern commentators deflect analysis further by imputing a basic divide between real and monetary activity. This essay retheorizes that relationship using the Civil War experience as a setting. The exercise illuminates money as a practice that constructs the market architecture across crises and calms. First, contriving a public unit of account creates commensurability in value and makes possible prices. That accomplishment is, at the same time, an arresting act of constitutional reorganization. To create a money, communities literally transmute political obligation into a unit and enable that entity to circulate: modern money is a sovereign liability that can offset individual indebtedness. Consonant with that faculty, the initiative expands public capacity and realigns private relations. Second, enabling money as a medium structures its operation. Money issues from public and private market actors who are advantaged by their ability to create it and it attracts users into its measurement system through their demand for that medium. Those features – discrete issue and particularized demand – are inherent to the phenomenon of circulation and, in turn, affect production. Third, a government curates exchange by enforcing those transactions in money that it approves. As it defines “commodities,” shapes contract, and develops property, the polity dredges the monetary channels of exchange. In the face of money’s sweeping effects as a unit of account, medium of exchange, and mode of payment, its disregard in modern economic theory is a major default. Analyzing money creation exposes it as the structure that configures economic activity.

Neoclassical and credit approaches to money represent dramatically different theories of value. Within the neoclassical tradition, the market exists as a conceptual prior, a place where independent agents compare real goods, exchanging them afterwards to accord with their preferences. That theory identifies value as a pre-existing quality ranked by individual choice. To operate, the theory relies on an approach to money that is oddly self-contradictory: money as a unit of account antedates exchange while money as a medium follows from exchange. By contrast, credit approaches suggest that markets only emerge once commensurability in value exists. To create a unit of account that enables comparison, groups restructure their internal relationships to create money. Members then use money for exchange, producing what is understood as monetary value. Credit theories of money thus imply a dramatically different “market,” one that turns on disparities within an exchanging group rather than the autonomy of individuals to produce “value.”

Financial crises, twice in so many decades, have exposed our monetary hardwiring as a critical issue of governance. That circuitry starts with a public unit – the dollar – created and backed by the federal government, but it appoints commercial banks to amplify and spread that money at the retail level. The design does more than delegate distribution to banks. By privileging banks as money creators, it also enables them to determine distribution. Operating according to criteria that are privately determined, banks decide which recipients will benefit from the expansion of a medium that is public. The process is clearly discriminatory.The hybrid state at the monetary core of the market has never been justified according to democratic criteria. Retail banks prevailed in their partnership with the state because they had strategic advantages in creating credit money, not because they were experts in allocating that medium fairly or most efficiently. That history, recovered here, was lost to an economic narrative that located banks as intermediaries vetted by the competitive marketplace. Public spending does not dilute the problem; all such spending occurs through the same banked conduits. By contrast, the federal government could follow historical examples and directly issue dollars. Direct-issue dollars would alleviate recessionary conditions without adding to the national debt. They could be targeted directly to populations most in need, enhancing distributive equity, and policed by the Federal Reserve, dividing public authority over money creation in a new way. Most importantly, the strategy would begin to democratize money’s design.

Across the ages, moneys exhibit a recurring set of design elements: they are made of debt; that debt is specifically fashioned to create liquidity; and the debt medium that results comes with a pledge of value (commonly collateral, convertibility, a commitment of public faith, and/or insurance) to enhance its credibility. While those design elements appear again and again, they vary greatly in form. Debt, for example, can be structured as a straightforward liability or issued by agents (e.g., a central bank acting for a government). Every difference in design changes the dynamics of the medium and the way people treat it. Every difference in design thus affects exchange, its societal context, and how value travels. Like the law of payments, the legal design of money shapes the economy itself. [This essay is written as part of a festschrift for Professor Benjamin Geva.]

The Enlightenment was a time of monetary turmoil and transformation in Europe. Change began with a riot of experimentation, including novel ideas about human agency and capacity to promote economic progress, efforts to reframe divinity in terms (like the providential) compatible with market exchange, new instruments of credit, and innovative institutions such as national banks and capital markets. Europeans, including the settler societies in North America, improvised frantically: people faced the task of everyday exchange in changing media; governments took up the project of creating currencies that supported their political power; artists and writers raced to represent new forms of wealth and interpret the issues they raised; and intellectuals struggled to conceptualize, and tame, patterns of monetary transformation. The result was a rich debate, still unsettled, about the sources of value, the morality of the market, and the very nature of money. Drawing upon a wealth of visual and textual sources, A Cultural History of Money in the Age of Enlightenment presents essays that examine key cultural case studies of the period on the themes of technologies, ideas, ritual and religion, the everyday, art and representation, interpretation, and the issues of the age.

The Enlightenment was a time of monetary turmoil and transformation in Europe. Change began with a riot of experimentation, including novel ideas about human ag…

The COVID-19 financial response brought a seismic shift in the allocation of authority between Congress, the Treasury, and the Federal Reserve. According to the classic division of labor, Congress claims the “power of the purse” or the constitutional authority to appropriate public funds; the Treasury holds responsibility over the spending and taxing that puts those orders into effect; and the Federal Reserve engages in money creation as part of its role making monetary policy and acting as lender of last resort. Drawing on that theory of separated powers, the essay reconstructs the traditional ways of thinking that distinguished money creation by the Fed from the congressional power of the purse. Most notably, approaches to the Fed have downplayed the distributive implications of its money creation powers by casting them as merely a stabilizing force, either backstopping private lending in times of panic or maintaining the health of credit markets more generally. We then analyze the COVID-19 liquidity facilities at the heart of the Federal government’s response to the current crisis. Established by the Fed, these facilities are shaped in non-transparent ways by the Treasury’s authority to protect the Fed from losses. With only $450 billion in congressional appropriations, the facilities are anticipated to lend $4.5 trillion, an amount the size of the 2019 federal budget. In our view, the facilities collapse the traditional narrative that distinguished Fed money creation from congressional appropriations. We conclude that that traditional narrative was problematic from the start. Congress’s inability to take responsibility over Fed credit support calls for a more structural reform in our financial system- one compatible with democratic governance and distributive justice.

Neoclassical and credit approaches to money represent dramatically different theories of value. For many within the neoclassical tradition, the market exists as a conceptual enterprise – a place where independent agents compare and rank real goods, exchanging them afterwards to in accord with their preferences. That theory reflects a particular approach to value, identifying it as a pre-existing quality ranked by individual choice. The theory also generates a particular approach to money, assuming that a term of measurement naturally imports commensurability into evaluation. By contrast, public credit approaches suggest that creating commensurability in a world heterogeneous in so many aspects is a profound challenge. Modern political communities have responded by substantiating value in a unit that is cognizable to all: they issue credit tokens that can be set off against widely shared public obligations. That means, first, that value cognizable in money follows rather than pre-exists market activity: it is produced as individuals use credit money as a medium. Second, because value is produced as people use money, the character of that money matters: its nature as credit carries with it an allocative bias. Both governments and private lenders (banks) advance credit in order to spend selectively: they create a credit medium by providing credit to some people relative to others. According to the way money is created, definitionally we might say, individuals will not be equally situated in the process that generates prices. Decisions about value are made in the wake of that fact. The essay closes by contrasting the democratic visions at stake in neoclassical and public credit approaches to value. That exercises suggests that, if the public credit approach better describes money and market, their potential can only be realized by promoting rather than assuming equality.

Eine mächtige Ideologie unserer Zeit besagt," schrieb Viviana Zelizer 1994, "dass Geld das eine tauschbare und absolut unpersönliche Mittel ist." Dieser Anschauung zufolge hat der Charakter des Geldes das moderne Leben verändert. Georg Simmel behauptete in seiner erstmals im Jahr 1900 veröffentlichten Philosophie des Geldes : "Sie [die Geldwirtschaft, Ch. D.] bewirkt von sich aus die Notwendigkeit fortwährender mathematischer Operationen im täglichen Verkehr." Dieses Charakteristikum wirkt sich prägend auf das Leben der Menschen aus--sie verbringen ihre Zeit mit "Bestimmen, Abwägen, Rechnen, Reduzieren qualitativer Werte auf quantitative.

Across Europe and the Americas, the Enlightenment brought intellectual and institutional tumult over that most basic attribute of the political economy – its medium. By the time the age was over, money operated according to a new design. It enabled a set of financial practices that were unprecedented: modern money worked synergistically with circulating public debt, capital markets, and commercial banking. Together, that quartet of innovations transformed the political economies of the West. The essay considers the themes of that change, including the depth of conceptual innovation on money and finance, the range of institutional experimentation, and the contentious nature of the debate. The essay takes a short tour of the Enlightenment quartet to suggest how interdependent was (and is) the development of those institutions.

The United States has long epitomized capitalism. From its enterprising shopkeepers, wildcat banks, violent slave plantations, and raucous commodities trade to its world-spanning multinationals, its massive factories, and the centripetal power of New York in the world of finance, America has shaped political economy for two centuries and more. But an understanding of "capitalism" is as elusive as it is urgent. What does it mean to make capitalism a subject of historical inquiry? What is its potential across multiple disciplines, alongside different methodologies, and in a range of geographic and chronological settings? And how does a focus on capitalism change our understanding of American history?American Capitalism collects cutting-edge research from prominent scholars, sampling the latest work in the field. Rather than a monolithic perspective, these broad-minded and rigorous essays venture new angles on finance and debt, women's rights, slavery and political economy, labor, and regulation, among other topics. Together, the essays suggest emerging themes in the field: a fascination with capitalism as it is made by public authority, how it is experienced in the detail of daily life, how it spreads across the globe, and how it can be reconceptualized as a discrete and quantified object. A major statement for a wide-open field, this book demonstrates the breadth and scope of the work the history of capitalism can provoke.

This chapter summarizes the case for considering money as a legal institution. The Western liberal tradition, represented here by John Locke’s iconic account of money, describes money as an item that emerged from barter before the state existed. Considered as an historical practice, money is instead a method of representing and moving resources within a group. It is a way of entailing or fixing material value in a standard that gains currency because of the unique cash services it provides. The evidence to that end comes from coin itself, the practice of free-minting, judicial commentary, and academic theorizing. As the second half of the chapter details, the relationships that make money work are matters of governance carried out in law. Thus law defines public debt, allocates authority to create money, and determines what counts as a ‘commodity’. Comparing medieval, early American, and modern money law on money demonstrates the dramatic importance of that legal engineering.

We often imagine that money is a simple stand-in for value. In fact, money has an internal design; it is collectively engineered by the societies that use it. Decoding money’s design reveals that money holds value based on its use for public obligations and the premium it carries in private exchange. Decoding money’s design also exposes moments of radical change in its collective engineering. Christine Desan compares the design of commodity money with the design of money produced by modern banks of issue. The modern method shares the monopoly traditionally held by the public with private actors, pays them for money creation, and institutionalises self-interest at the heart of the political economy.

A myth about the origins of money has long organized modern approaches to the medium. According to that creation story, money is the natural product of human exchange. It can be analogized to a commodity like silver that comes to hand out of the decentralized activity of trading or a convention like language that arises out of a consensus about the value of an item. But if we consider clues about money’s origins and extrapolate from its continuing practice, another story comes into focus. It suggests that money is a constitutional project, a mode of governance for a material world. Money is a means of mobilizing resources across a collective, one created when people advance in-kind value to a stakeholder in return for a unit that represents that advance. The process both entails material value – the advance to the stakeholder is real – and converts it into a form that everyone else recognizes – the advance holds independent value because it offers a countable measure that can be transferred to make final payments. Money creation tied to a fiscal backbone can be expanded in response to the demand for cash: that practice accords both with modern economic theory and the English medieval history that furnishes the setting here. In contrast to the dominating myths about money, the “stakeholder” creation story explains how each of money’s functions is institutionalized and how that activity shapes “the market” that is made by money.

Medieval coin plays an essential role in the imagined history of money: it figures as the primal "commodity money" — a natural medium, spontaneously adopted by parties in exchange who converge upon a metal like silver to represent the value of other goods. As a natural medium with a price objectively established through trade, commodity money appears to offer an independent means of measure in the market. But as the history offered here reveals, medieval money was nothing like its imagined alternative. England’s early coin became a medium when the government began to spend and tax in that unit of account, took coin as a mode of payment, and allowed it to be transferred between people in the meantime. Individuals participated in the arrangement, paying for coin in exchange for the unique quality — liquidity — that set money apart from a commodity. That quality was orchestrated by the very channels that brought public and private together in the project of making a medium. In fact, insofar as the English equated money with the commodity it contained, they engineered instability into the heart of their medium. Depreciating coin — diluting its commodity content — offered a cure. It also confirmed that coin had never been the "commodity money" imagined in later accounts. Coin was, instead, a constitutional medium, one that related the government to its participants and thus helped to configure the world it appeared merely to measure.

Modern capitalism, argued Mort Horwitz in the Transformation of American Law, 1780-1860, arrived with a new approach to contract. The claim was one of the most controversial that Horwitz made-and he made quite a few. I want to pick it up and push it from an angle that Horwitz never intended, although I like to think that he might endorse it. In honor of Horwitz, I will suggest that capitalism, so commonly identified with "commodification," came about precisely when society moved beyond commodification and into a world made possible by new forms of liquidity. Those forms of liquidity, the social relationships that they engendered, and the distribution of wealth that they supported were distinctively governed by a new approach to contract-an approach to contract that, with its sanctification of the ex ante terms of a promise for value, was very like the one that Horwitz flagged as the modern turn in his book.

The Oxford International Encyclopedia of Legal History is a comprehensive, international, interdisciplinary reference work that includes approximately 1,000 articles on all aspects of legal history throughout the world.

Presented as part of the Special Issue: Money. Acting out of a world still organized around the tenets of mercantilism, colonial Americans invented another approach to value.

The U.S. Constitution left it notoriously ambiguous whether individuals could sue sovereign states for breach of contract in federal court. Within a few years, the issue had produced a constitutional crisis, famously acted out in the Supreme Court’s determination that states were subject to suit, Chisholm v. Georgia, 2 U.S. 419 (1793), and the political reversal of that permission, the Eleventh Amendment. The essay reconstructs the context that gave rise to the suit, its determination, and its political reversal. Colonial Americans had created a constitutional order that located legislative authority over the economy as the essential channel to self-determination, popular sovereignty, and calibrated justice over shared resources. But both political economic practices and conceptions about sovereignty were changing. The Supreme Court’s jurisdictional assertion was part of the movement towards an order that elevated judicial authority, locating it as the critical instrumentality in a liberal state where rights were supposed to exist independent of social and economic circumstance. The strategies adopted by the Chisholm claimant to define the obligations of contract and obtain a remedy showcase that transition. From Robert Farquhar’s 1784 death at sea on his way to obtain relief to the state of Georgia’s 1889 claim to reimbursement from the United States in the U.S. Court of Claims, the effort spanned more than a century. It took both individual and state claimants from executive officials and legislative committees to the increasingly ascendant courts.

History is a strange medium: it carries the most contemporary debates onto the most distant terrain. Both Bruce Mann and David Konig focus on the notions of change and context that undergird the forum essays. Those issues, more than any moment in early New York, link the articles and the comments. By exploring the way we defined “constitutions,” “constitutionalism,” and “constitutional history,” the commentators open up a large and current question. They invite a discussion about approaches to constitutional change.

Americans in early New York, and likely in many of its sister provinces, created a distinctive constitutional tradition - they gave their political representatives the authority to interpret public law by making the legislature the forum that resolved claims against the government for money. That constitutional commitment to legislative adjudication profoundly affected the experience of government. The assembly became the center of everyday provincial administration in practice, and claimed a corresponding stature in theory, as the institution that protected the people's property in a newly literal sense. Legislative adjudication connected constituents directly to their representatives over matters of right; the interaction produced a novel kind of legality. Participants regarded the process of determining claims as one that involved law and legal obligation. At the same time, representatives treated the act of defining public debts as an important political matter. The tension created by a regime in which rights were both binding on the government and yet dependent on balancing public and private ends was mediated by the "public faith." The constitutional order of the community depended on whether, and how far, legislators could keep that faith.

Presents a biography of every Supreme Court justice from John Jay to Elena Kagan, profiling the main realm of each judge's jurisprudence, the major cases in his or her tenure, and relationships developed with other members of the Court.

Imagine a strange and common experience—you reach for something concrete, immediately in front of you—only to find that the solid has evaporated. Accelerate towards a pool of water on the road, outline a column of light, cup your hand around smoke or fog. The reflection waits on the pavement before you, the column stands endlessly beside you. When you open your hand, it is empty. Only a residue, carbonate or cool, attests to the reality that was smoke or cloud. Thus we create a curious category of realities undeniable but impossible to grasp. Older now, but still determined, we continue to fill the category: it grows more sophisticated, stranger and more various with our experience. It is fed each time we try to capture, this time in words or memory, a scent, a face, a motion that defies definition. It is fed by all the realities language cannot describe and by all that is known in the way of an old routine, with familiar and fading certainty. It is fed by everything eminently sensible and constantly elusive. Power perhaps.