Fifteen Questions: Bruce H. Mann on Legal History, Studying Debt, and Owning Golden Retrievers

Bruce H. Mann is the Carl F. Schipper, Jr. Professor of Law at Harvard Law School. He studies legal history, with a focus on the intersections among legal, economic, and social change in the 17th and 18th centuries. This interview has been edited for length and clarity.

FM: How did you initially become interested in legal history?

BHM: I started in law school, had an allergic reaction, and always loved history. One of my undergraduate professors had made the side comment that legal history was a wide open field, so I walked over to the graduate school, introduced myself to the historian I would want to work with, and said, “I would like to study legal history and work out a joint program, and I’d like you to direct my dissertation.”

At the time, most legal historians were interested just in doctrine and institutional structures. What was current in early American history at the time was more social history, history from the bottom up, and I thought it would be fun to see if I could blend those two.

FM: You’ve taught at many, many schools including Harvard and received a bunch of awards for your teaching. What draws you to the classroom?

BHM: Oh, it’s such fun.

In the law school classroom, particularly since I teach first years, I get to be the one who has the first crack at showing them an entirely new world, the first crack at rewiring their brains, and teaching them how to read in a way they’ve never read before.

Teaching socratically, it’s very empowering. It’s like a bodybuilding course for the mind, and it teaches people how to continue to teach themselves.

A lot of students come into law school from a whole variety of backgrounds, not necessarily sure if they belong, not really accustomed to putting themselves forward, and I get to show them what they are capable of.

FM: What has been one of the most memorable moments in your teaching career?

BHM: Back when I was at Penn, there was one class that had a number of students who were several years older than the others. There was a woman in the class who had been a high level city official in New York City in the Budget Office and came to law school in her 30s. Very capable, very smart, but didn’t quite have the confidence in coming back and competing with folks who were much younger.

And I remember, as I was questioning her, she started to crumble, and I just kind of reached out and said, “Come on, play with me. You can do this.” And she did great. And she came up after class and said, “That was an important moment.” And I said, “I know. You can do this.” She’s gone on to an incredible career in the Manhattan District Attorney’s Office.

It would have been very easy just to go on to someone else or to let her crumble. But that’s not what teaching is.

FM: You published “Republic of Debtors” a couple decades ago now, and it’s one of your most famous books. Why do you think it is important to study the way American society responded to debt back in that time?

BHM: I’m interested in the relationship among legal change, social change, and economic change, primarily in the 18th century. One of the things that was appealing about studying debt is that debt is pervasive.

Today we go into debt on a daily basis: You buy a slice of pizza using a credit card — you have incurred debt. The fact that we use the credit card payment system for everything means that there’s probably never a moment during the day in which we’re not in debt, which is all fine because debt has many facets, and it’s incredibly important to the functioning of a commercial economy. But it also can represent an incredible burden.

So by studying debt, you’re studying a topic that touches everyone’s life. Even in the 18th century, it would touch the lives of servants and enslaved persons who might not themselves be in debt, but who are dependent upon masters and owners who work. When debts go bad, it’s a point of contact with the legal system that touches most people, whereas criminal law, for example, doesn’t. So you really can have a window into the very fabric of society by focusing on debt.

FM: I’m curious if you see any parallels or differences between how debt is treated today versus back in the 18th century?

BHM: There are a lot of parallels.

In the 18th century, to the extent that there was debt relief, it was for merchants — people in commerce. The notion was only merchants incur risk, and they therefore have a claim to protection. And the notion was, for everyone else, debt was not a necessity, but a choice. And as a choice, it was a moral choice, and therefore they didn’t deserve any relief at all.

That distinction between business debt and individual debt — what we would now call consumer debt — is very deeply rooted. That shows up in the 21st century.

Back in the 1990s, credit card companies put pressure on Congress through intensive lobbying to reform the bankruptcy laws to make it harder for consumers to take bankruptcy and discharge their debts. The claim was that, “Everyone’s losing all this money because of all these deadbeats.”

Empirical work showed that the vast majority of folks who wound up in bankruptcy did so for one of three reasons: uninsured medical expense, job loss, and divorce or death of a partner. Those aren’t those irresponsible people, but the credit card industry was determined to squeeze out the last bit of profit it could from those folks. It really succeeded in perverting the bankruptcy system by the time of the so-called Bankruptcy Abuse and Consumer Protection Act of 2005, which is one of these Orwellian titles. So a lot of the same conflicts, the same assumptions that business should get preferential treatment over individuals. They have been pretty much constant throughout American history.

FM: Practically, what kinds of policies could alleviate or combat these very complicated and systemic problems?

BHM: You’re right to describe it as systemic. From 1935 to 1980, gross domestic product was going up, economy’s on the rise. 90 cents of every new dollar of income basically went to folks who were in the bottom 90 percent of the population.

1980 hits, and all of a sudden we go into deregulation, big time. Over the next 30 years, the GDP is going up, but the proportion of every new dollar that went to the folks in the bottom 90 percent? Zero. All of that new income, all of that new wealth was being sucked up by the top small percentage of the population.

This is the same time in which unions are weakening. States responding to business interests are cutting protections for workers.

At the same time, we’re not building new housing anywhere near enough to keep up with demand. So today, there’s a housing crisis.

We need to build more housing to bring the supply to the point that it matches demand, so rents and housing prices can be brought down to levels of affordability.

One of the products of taxpayer disinvestment in higher education is massive student loan indebtedness — that has to be dealt with. And how do we redress income and wealth inequality? That really requires taxation.

FM: What do you enjoy about teaching property law?

BHM: Property was first assigned to me by my very first dean.

But I really fell in love with it. I could teach all of Western civilization through property, because for centuries, it was the principal object of value.

In the United States in particular, you have an ideological conflict that has played out over generations between the people who regard property rights as natural rights that are superior to anything else, and others who believe that property rights exist in a social context — they are creations of the state, and they can be subject to government regulation.

That conflict is one that has a powerful shaping effect on the world that we live in. Zoning regulations, for example, or coastal rights or beach rights. It’s a key problem to be solved in climate change.

Property rights are so thoroughly constitutive of modern American society, that you can start pushing on it, and it can lead you in so many different directions.

FM: A lot of your work has focused on the time before and surrounding the American Revolution. Is there something about that area that you find particularly fascinating?

BHM: The American Revolution has been treated as a pivotal point in American history for many, many years.

It was a moment in history in which everything was up for grabs. Everything was on the table, and the choices that people made — or that they backed into — had a powerful shaping effect on what went after. So studying a period of time in which people had an opportunity to rethink politics, economics, social relations, and the extent that they did or didn’t, is just fascinating.

FM: You’re married to Senator Elizabeth Warren. How did you two meet?

BHM: We were both pretty new law professors. I had finished my first two years of teaching at University of Connecticut. She had finished her first year at the University of Houston.

We were both attending an intensive three-week course in economics for law professors. Just purely by chance.

FM: What was it like being there as she was running for president back in 2020?

BHM: We’ve been married a long time, and it’s always been an adventure. The campaign provided just an extraordinary opportunity for her to talk about the issues that she’d studied for decades as a law professor and her understanding of the family economy.

And no, it didn’t turn out as I had hoped. It was a long shot anyway, but she moved the needle. She brought into public conversation lots of issues that simply hadn’t been there before and have been the focus of federal policy since. That doesn’t happen very often.

We also met lots and lots of people who gave up huge amounts of time to volunteer because they believed in something. I’ve always been a political junkie, but it was always top-down, which breeds a certain cynicism. But over the years now, I’ve spent lots of time down at the precinct level, the ward level, with volunteers, people who give up evenings, weekends, to knock on doors, to hold signs, all because they believe that they can make a difference. It would be the betrayal of their optimism to hold onto the cynicism.

FM: She’s now running for reelection in the Senate. Have you been doing similar work, still interacting with volunteers?

BHM: Yeah, it’s still early. There are many good things about Massachusetts, one of which is that you don’t need a plane to get from one end of the state to the other. It’s good to travel

around.

FM: When did you guys first adopt Bailey?

BHM: We’ve always had golden retrievers. Our previous one, Otis, we lost him just a few days before her first election in 2012. Even though I commuted for eight years by plane, when she was first elected, our lives just changed completely. We were both flying, so there was just no way we could think of getting another dog.

Finally, after a few years of that, I said, “This is just ridiculous. We’re dog people.” I figured out an opening in the calendar when there would be enough time to get a puppy.

We just went back to the same breeder — our previous dog was actually Bailey’s great uncle. So we got Bailey because we couldn’t bear not having a dog any longer.

FM: Last fall I took the undergraduate constitutional law course with professor Richard Fallon. I remember he reiterated several times that we’re actively witnessing some big changes in the Court and the way the law is interpreted. As a legal historian, what do you make of the events of the past few years, from the appointing of three conservative justices under former president Donald Trump to the decisions they have made?

BHM: In all courts, federal courts as well, there has always been various levels of ideological bias. The Supreme Court, for most of its existence, was really quite corporate.

The Court for a very long time, from the 1890s up to the 1930s, stood in the way of labor protections, for example, and a whole host of other things that would have improved the lives of Americans.

It wasn’t until the 1950s that the Court embraced the expansion of rights. And then because of the happenstance of who gets to appoint judges, that window closed.

As a result, in the last couple of years in particular, we have seen the curtailing of rights in a way that we hadn’t experienced — not in my lifetime. The gutting of the Voting Rights Act of 1965 in Shelby County v. Holder in 2013, and Dobbs, of course, is the big one. The Second Amendment cases, starting with District of Columbia v. Heller in 2008, based on an interpretation of history that is just wrong and made even more wrong in Bruen.

We’re in the position of having a Court now that makes up history as it goes along, because it can. They’re out of step with probably a majority of the American people at this point. Even though judges have been ideological in the past, I think it has reached a level that has gone well beyond that at this point. There’s a difference between being ideological and political, and I think now they’re much more intensely political.

FM: What role do you think understanding legal history plays in understanding current events?

BHM: It’s absolutely essential. Not because it predicts anything, but because history helps explain our world.

It is important to understand how the world we live in emerged from what went before, recognizing how those changes were the results of human agency. Because once you understand that, you recognize that there is nothing about this current world that is written in stone.

History teaches us how we can move forward.

— Magazine Chair Kaitlyn Tsai can be reached at kaitlyn.tsai@thecrimson.com. Follow her on Twitter @kaitlyntsaiii.