Historians' ethics and the search for salt and pepper

My dissertation topic--antitrust policy as it may or may not have applied to coal dealers in Toronto and Chicago from 1880 through 1940--is about as dull as it gets for the hapless non-specialist who, for some inexplicable reason, might decide to read my dissertation. So it's always nice to find an amusing anecdote to spice things up a bit. I have found one, but using it presents some ethical problems.

The anecdote--actually a series of anecdotes--is the doings, mostly correspondence, of a coal dealer in Toronto. This dealer is unusual first because she's a woman. Among the better established coal dealers, women were exceedingly rare, and this woman was quite well-established in the city's coal trade even if she wasn't one of the major overall players. She is unusual, second, because she made her voice heard. A lot. She corresponded frequently with government officials, and the records of the Ontario Fuel Controller, the legislative assembly of Ontario, and the Toronto City Council, have copies of her actual letters and multiple references to other "communications" that I haven't yet been able to find.

So far, so good. But she is also unusual because of what and how she wrote and the things she did. In fact, and I say this with respect, she appears to have suffered from some form of mental illness. There is a record of her complaining to a Toronto governing body that oversaw the regulation of telephone lines about how Nazis were using the phone lines in her office to pump in natural gas and asphixiate her. (This was in the late 1930s.) Many of her letters, at least the ones I have uncovered, are rambling and suggest she perhaps wasn't thinking clearly when she wrote them. It is not so much that she may have lacked education in proper business letter writing etiquette; it's more that what she writes borders on nonsense.

What good would come of using her letters in my dissertation? Well, there is one thing she did in the winter of 1922-1923 that made life very difficult for Ontario's Fuel Controller. The controller had been appointed as an emergency measure to deal with a severe shortage of coal that winter (a huge strike in the United States drastically reduced most of Ontario's coal supply), and the controller had to do all he could to convince the US government not to embargo all coal from the US. Some in the US, especially New York and New England, protested that Ontario already had more coal than it needed, and they were clamoring for just such an embargo. Well, in this context, the coal dealer in question put an inquiry into the Boston market for coal, offering to sell her supply at a very high price, which added grist to these protesters' mill when it came to their claim that Ontario had more than enough coal. (This is all relevant to my dissertation because it shows the ways in which Ontario and Canada tried to manage competition in a period of a coal shortage: the short answer is that in Canada, government officials were more likely to work with the coal dealers while in the US they were more likely to prosecute them for "profiteering" or for "restraint of trade."

Here are the problems with using this coal dealers' letters as a source:

• The actual letters are not necessary to discovering the controversy. There is enough evidence from the government documents for me to say "one Toronto-based coal dealer's tender to sell coal in Boston fed the outcry in the US for an embargo on coal to Canada" without mentioning even this coal dealer's name. My footnote would refer to the letter of the Fuel Controller where he complains about this coal dealer.
• There is the "middle way" of citing this coal dealer's letter but redacting her name. But if I did this, it would pique the curiosity of the reader, and every instance I include references to her would be one more invitation for the reader to go to the Ontario Archives and find out for herself. [See update #2 below]
  
• Our society has a lot of ways of approaching the issue of mental illness: avoidance, institutionalization, out-patient treatment. One of these ways is humor, often caustic humor, that treats those with mental illnesses as someone to be made fun of, to be "othered." My inclusion of any more information beyond the fact of the coal tender, mentioned above, could only plausibly serve to put her in a bad light, to make fun of her, for her difficulties.
• Aside from the controversy over her Boston tender, She was not Charles Guiteau; she did not kill anybody or do anything so horrible that her her mental health is legitimately an issue for a historian to ruminate on [see update #1 below]. All she ever did that was "bad" was violate a few coal ordinances and face prosecution as a "public nuisance." It would be arrogant of me, a non-specialist (to put it mildly) when it comes to diagnosing others' mental health. Even if I were a specialist, it would be further arrogant and irresponsible of me to make such a diagnosis from what amounts to, at most, 20 pages of typewritten documents (and that includes the references to this coal dealer that do not come from her letters). Maybe she had no mental illness, or had only rare episodes.
• My including her correspondence still puts her in a bad light personally. I doubt she would want to be remembered, or her family would want to remember her, as a crank who wrote embarrassing letters to government officials.
  

I should say that this question does not appear to be a legal issue. All the sources from which I have found her letters or other references to her are public, probably on the assumption that the governments of Ontario and Toronto have decided that anyone sending such letters to them had to expect that they would be made available to the public. I will shortly consult some "restricted" documents from Toronto in the 1930s--assuming I can get clearance--and if any of her letters are in those--and if they are not redacted--the issue of whether to use those would, presumably, be of legal import.

Update #1 5-15-11: I suppose there could be legitimate reasons to study this coal dealer in such a way that would have to deal with her eccentric behavior. A biography of her, for instance, could be interesting for a lot of reasons: she was one of only a few women in a male-dominated trade in which membership in male-dominated trade associations was an invaluable form of social capital. Someone doing research, for example, on how eccentricity or "mental illness" was handled in the public sphere might find this coal dealer's situation enlightening: she was brought up on charges of being a "public nuisance" (although I do not know the disposition of the case), but before then and afterward, she continued to show up to city council meetings and write letters, and as far as I know she wasn't ever civilly committed. These exceptions prove my rule: a biography of her, if thoughtfully written in accordance with what is considered the elements of the historian's craft, would be sensitive to all the nuances, problems, challenges, and contradictions of this coal dealer's life. A historian studying the history of how mental health ought to be aware of the ethical issues involved in protecting others' privacy. The topic of my dissertation, however, really doesn't require me to touch on most of what she did, outside of the 1922-1923 stunt and, maybe, an incident that happened during World War I.

Update #2 5-15-11: Even if the reader of my dissertation isn't interested in finding out who this coal dealer is, my inclusion of sufficiently redacted information does not answer one of the other objections to including this evidence: it feeds the notion that mental illness is something to be made fun of or something to be dismissed with eye-rolling glances and quite chuckles.

What's sympathy got to do with it?

The people I am studying for my dissertation are, mostly, coal dealers, and they are not especially a sympathetic bunch. The key word is "especially." They were not evil or vicious (most of them), but like almost everyone else on this planet, they have not sacrificed their lives for the well-being of others without asking for anything in return.

They enjoyed more privilege than not relative to most of their neighbors and to other workaday Americans and Canadians. (I should point out that I am studying the "established" coal dealers and not the more marginal coal peddlers, whom the established dealers derided as "snowbirds" but who probably provided a service to many a consumer.) Some, of course, like Elias Rogers and his son, Alfred Rogers, in Canada and Francis Peabody in the U.S., enjoyed vast wealth (and even owned their own mines) and undoubtedly own their share of the blame for the sometimes violent labor disputes in the mines they owned and profited from.* Others, like the less famous small coal retailers, were more like the modern day convenience store owners who find themselves competing with grocery store chains and Walmarts, while still others fell somewhere in between.

A recurring theme in what I am studying are the ways in which these coal dealers engage in practices to limit competition and the ways in which the state exercises "competition policy"--with a focus on antitrust (U.S.) or anti-combines (Canada) policy, although I am also looking at licensing regimes and older policies such as laws against "forestalling the market"--to punish them for these attempts or to regulate the way in which they make these attempts. Here are the types of practices most of these coal dealers engage in:

• Monopolizing local markets by cornering the market on coal within a very few hands under the command of a single firm. (Here I use "monopolize" to mean "gain control of all or most of the commodity in a given market," and not "to secure an exclusive right from the state to trade in the monopoly.")
  
• Collusion with wholesalers to limit bulk sales only to "legitimate" retailers, legitimate being defined as "membership in local coal associations predicated on abstaining from 'price cutting' and from other 'trade abuses.'"
• Setting prices, either outright through price-setting conferences (more common in the 1880s and 1890s), or through some form of what by the 1910s became known as "open prices associations," where information on prices and costs was pooled in some central publication that factors in the industry could then use to determine how to set their costs.
• Labor-management agreements that regulated coal prices indirectly by standardizing labor costs. These agreements ranged from industry-wide (or almost industry-wide....West Virginia was a major exception until the 1930s) contracts ("joint agreements") between operators and the United Mine Workers, to local-market specific contracts between coal dealers and the local teamster's union(s). These local contracts usually involved some sort of exclusivity: dealers pledged to use only union labor while the workers pledged to work only for "fair" coal dealers.
  

The first practice almost never happens. In the soft coal industry, it was almost impossible to attain anything like a monopoly and only in very rare, very exceptional circumstances, and then only in a single (and small) market, could anything like a local monopoly on soft coal exist. In the hard coal industry, "monopolies" (using my looser definition) were a bit more common. Even then, they usually depended on the cooperation of wholesalers and retailers who were not owned/licensed by the anthracite operators; and even then, there were some hard coal operators (the "independents") who were not part of the monopoly. More to the point, hard coal had to compete with soft coal, with fuel oil (after 1900, and especially after World War I), with natural gas, and with hydroelectric power. I should say that attempts to use antitrust policies against these "monopolies" usually failed to meaningfully end them; but such policies were not necessary anyway to this end: these "monopolies" usually fell apart within a year.

For the other two practices, which, as the antitrust laws evolved, became increasingly "per se" violations--actions that by definition were violations of the antitrust laws and not subject to what became known as the "rule of reason" jurisprudence--antitrust laws were used much more aggressively and much more "successfully," if success is measured by conviction rates, having those convictions upheld in higher courts, and preventing at least the most flagrant violations.

The fourth practice--labor agreements--were sometimes subject to antitrust and other actions, and sometimes not, but they were more durable and enjoyed, sometimes, more state support.

(The New Deal is an interesting exception to all these points. The National Industrial Recovery Act not only legalized many cartel agreements, but made them legally enforceable. And even after the Supreme Court declared the NIRA unconstitutional (and the Judicial Committee of the Privy Council in England, which had jurisdiction over Canadian laws, declared a similar program, proposed by Prime Minister Robert Bennett, "ultra vires," or beyond the lawmaking powers of the Canadian government), new laws in the U.S., like the first and second Guffey Acts, as well as labor laws, like the Wagner Act and Ontario's Industrial Standards Act, had the effect, sometimes, of tolerating, if not imposing, cartel-like behavior.)

Now, back to my original point. The dealers involved are not especially sympathetic people. The workers--the coal handlers/teamsters who delivered the coal and the miners who extracted it--traditionally evoke more sympathy, probably because their circumstances were presumably more marginal and because their livelihood depended on a boss and on the vicissitudes of a labor market. (Some of this has been challenged. Fishback's Soft Coal, Hard Choices explores some of the options of geographic mobility that at least some workers enjoyed. My point is that traditionally, the workers have evokee more sympathy.)

One of the many criticisms of antitrust laws, at least the criticisms that rely on sympathy for the targets of the laws, focuses on the apparent unfairness of how these laws affect the most marginal peoples. In the case of the coal industry, this would be the miners and the drivers, and their unions' subjection to the laws. One thinks of the incarceration of labor leader Eugene Debs in part under authority of the Sherman Act** and of the Danbury Hatters' Case, in which the Supreme Court held each individual member of the hatters' union individually liable for all the damages caused by the union boycott, held to have been an action "in restraint of interstate commerce." Sometimes, small business owners and farmers are also viewed sympathetically as hapless--and presumably unintended--"victims" of the laws. But outside of the coal trade journals, hardly anyone seems to have had much sympathy for the coal dealers and coal operators, even though some of at least the smaller retail coal dealers were the sorts of proprietary capitalists people sometimes have in mind when they talk about "small business owners."

Now, I'm not trying to uplift the coal dealers from the coal dust bin of history and say yes, they, too, need sympathy. But I am bothered by the apparent arbitrariness of antitrust policy. It's not just that the policy outlaws things not normally considered crimes, at least not if we take a step back and think about them for a while.*** It's that many business transactions people might consider legitimate could be a violation of antitrust policy, and violators are often prosecuted only when they do something that offends people's moral sensibilities.

These "moral sensibilities" are offended usually in one of the following circumstances: when people believe the price of coal is too high; when people believe the supply of coal is inexplicably low; when people believe the employees of the coal operators and coal dealers are getting a raw deal and need to be paid more (but not so much more as to raise prices too much). Added to the "moral sensibility" was the fact that coal was such a necessity, especially in colder climes. It seems to me, albeit only on impressionistic evidence (because I have not studied it systematically), that only eggs, bread, and especially milk--their prices, supply, and quality--evoked more emotion than coal. Newspapers recounted sufferings of especially poorer people during times of coal shortages of high prices, and these accounts, while probably sensationalized, were also probably true.

But here's my question, something I'm trying to wrap my head around: is it "just" to have a law predicated on the notion that someone could be prosecuted at any time for its violation without any showing of intent or mens rea? This question is, of course, a question-begging question (what my college logic teacher might have called a "complex question"). It assumes that my characterization of the law (that it outlaws what people out of necessity are always going to do anyway and therefore is enforced only when people's sensibilities are implicated and an "example" is to be made of someone) is accurate. My also assumes that my characterization is exceptionally accurate [see update below]: all human-made laws, to some degree, have a certain amount of vagueness and arbitrariness to them: if lines are to be drawn, they have to be drawn somewhere; if offenses have to be defined there are always going to be cases that don't clearly fit within the definitions; if laws have to be enforced, limited resources dictate that they will be enforced with at least some degree of selectivity: is the case of antitrust laws just a problem inherent in all human-made laws, or are these laws exceptionally bad, even taking into account the weakness of our fallen nature?

I hope to write, in another post, on the justness of such a law, assuming, of course, that my characterization of it is accurate. In particular, I will want to write, if/when I have the time, on what circumstances would be necessary to prevail in order for such a law to be just.

Update 4-29-11: Ugh! I wrote that the question was partially whether my "characterization" of the law was "exceptionally accurate," when I meant and should've wrote something more like: if the law is as I describe it, to what extent are its faults unique to it, or to laws in general? Of course, if any characterization I make is indeed accurate, such an accuracy would, with my convoluted writing, be indeed exceptional.

*I am not trying to deny the culpability of miners who killed or injured strikebreakers in such depressing debacles as the "Herrin massacre," but I am saying that the mine operators share some non-trivial responsibility for putting people (strikers and strikebreakers) in such desperate circumstances.

**The appeals court upheld Debs's incarceration partly on the ground of violating the Sherman Law. The Supreme Court, in upholding the appeals court decision, declined to opine (nice rhyme, mine and not thine!) on the Sherman Act, preferring to rest its decision on Debs's purported interference with interstate commerce and the federal mails.

*** Price-setting seems pernicious, with a whiff of conspiracy and backroom deals among portly, cigar-smoking, mustachioed men in suits about to down some brandy to celebrate foreclosing on an orphanage. But if one accepts that a business owner may set his or her own prices, then it is at least a bit challenging to decide why, in principle, two or more people may not agree to set the same price. I'm not saying such behavior necessarily ought to be legal, but only that the case for the oughtness of its illegality is not necessarily so clear cut as it might seem at first.

Why is World War I so difficult?

I'm in a what seems to be interminable process of writing a chapter on World War I, and specifically coal and competition policy during the war. I started writing this chapter in August 2009, and it's still not done.

For some reason, I just can't get excited about it. All I can really say is that people didn't have enough coal, and they sometimes blamed coal dealers and operators for the shortage, but they also sometimes blamed the government and the fact that the county was at war. That's it. That's all. I mean, the war sort of served as a prologue to what came after, but my chapter on the 1920s will actually begin by looking at the antitrust reforms in Canada and the US that began around 1909 and ended (more or less) in 1914, which is the year the war started. [*****warning*****RETROACTIVE SPOILER ALERT****warning]

Experiments in Entertainment

I have an idea for a new TV drama that uses as its template the old Law & Order show. I'd call it "Original Order." The show's lead in would include a faceless voice saying:

In the library research system, historians are serviced by two separate but equally important groups, the graduate students who process the collections and the reading room staff who page the materials for patrons. These are their stories.

The five more minutes syndrome

When I was a freshman in college, I took a "world history" class (actually, it was a history of the "20th century world"), and when the professor talked about Winston Churchill's disastrous Gallipoli Campaign--in which the British army, during WWI, tried to take control of the Dardenelles from the Ottoman Empire--I chimed in that I had read something, somewhere, to the effect that later evidence showed that if Churchill had held out for a few more days, the Turks would've surrendered. That professor chided me for what he called the "five more minutes syndrome," the notion that a failed policy will work if only it's given more time.

Well, I don't know if it's a failed project, but I just finished the rough draft of a chapter for my dissertation (it's rough indeed: it has no conclusion and is still 95 pages), and it took at least two weeks longer than I had anticipated. One reason was that I stumbled upon an interesting tidbit in the local papers that cover one of my case studies, and I took a 1 to 2 weed digression in researching the item. It was a true case of serendipity, and actually helped make whatever point it is I'm trying to make in my chapter (I'm not sure what that is.....when it comes to this project, I'm working rather inductively and am trying to draw conclusions as I go). Anyway, I might have spent even more time researching this tangent that turned out not to be a tangent but integral to what I wanted to do.

In my case, the "five more minutes" plea played out.

"Forum culture" in academic journals

I don't read academic journals as much as I, a grad student in history, should. Journals are important because they acquaint scholars with the state of the field, often in a more comprehensive way than simply reading monographs. (In the historical profession, monographs are emphasized more than I understand them to be in, say, political science or legal scholarship, where journal articles are even more important than in history for tenure decisions, etc. Of course, I stand to be corrected.)

One characteristic thing about journals is the occasional "forum" issues, where several--usually three--scholars opine about a work--usually a monograph, but possibly a previous journal article--of another author. These forums (fora?) give readers exposure to a variety of viewpoints, and in that respect are quite useful and important.

But they also follow a vexingly predicable format. Consider a forum about the work of author A in which scholars X, Y, and Z participate. Here is the format that is usually, almost always, followed:

• X writes a long, often 20+ page, thought piece on author A's work.
• Y writes a shorter, about 5 to 10 page, piece.
• Z writes an even shorter piece, usually only 2 or 3 pages.
• A writes a "response" that usually runs like this: "X, Y, and Z bring up many good points, but in general I'm right and they're wrong, and here's why....."
  

Just once, I'd like to read a forum where author A says "I enjoyed reading the commentary of X, Y, and Z. Although I think my original work had made many valid points that need consideration, it appears I will have to fundamentally rethink what I wrote before."

Perhaps this does happen occasionally. As I've said, I don't read journals nearly enough. Still, it would be nice to actually see it happen.

Eau Canada!

I shall be leaving in a few days for a research trip to Canada (Ottawa, to be precise). The national archives in Ottawa has much of the material I need for my historical research, in particular, it has numerous newspapers published throughout Canada.

I have already made two trips to Ottawa and one to Toronto for research, and I have to confess how fun it is. There's something about traveling to a different country with a reason other than just merely tourism and vacationing (I'll be doing some of that, too. My girlfriend and I are taking the time as a small vacation as well as a research trip). I don't know why, but it's nice to tell the customs official "business" when he or she asks "business or pleasure?" (it's also amusing to see their eyes glaze over as I try to explain that I'm writing a dissertation on "antitrust policy in Chicago and Toronto as it may or may not have applied to coal dealers"). I've been to Montreal and Vancouver as a tourist, and it was fun, but after a day or two, I was just some slack-jawed person who walked around wearing a backpack and who haunted coffee shops and other picturesque places where I could write my poetry....all stuff I could do pretty much in any city in North America.

Anyone who reads my blog knows that I complain a lot about academia, and most people who know me well know that I have a lot of qualms about history as a profession and even as an undertaking. In short, I'm not quite sure how to justify studying history, and I'm even less sure how to justify requiring people to study it, beyond some vague sense that "we need to understand our past to be good citizens" or that "a knowledge of history gives people the cultural capital they need to succeed."

But I must say that research is, to put it bluntly, fun. I feel like a detective, uncovering about which few know or (especially for my topic) care. There's something about spending a week in an archive that is exciting.

It's also fun to practice my French.

The "equally valid viewpoints" straw man

I am working my way through a book about the (political) life and times of Ronald Reagan. In the introduction, the author--whose name I won't disclose but whose last name rhymes roughly with the capitalized part of the sentence "WHY LEND Scott the money?"--states

I reject, however, the now fashionable claim that objectivity involves reporting all views or interpretations as equally valid.

This type of statement is common in my experience in academia, and I submit that it is a straw man. I know of very few people, even at the level of the "popular" trade-book audience to which Mr. Wilentz's this author's book is directed, who really believe that "all views or interpretations are equally valid." At least, I have not encountered any personally, and I have not read any who make such an extreme claim.

It's MY topic

One of the more disconcerting things about academia is the strong incentive to develop exclusive proprietorship over one's specific object of study. PhD students--and to a lesser extent, MA students who write a thesis--are strongly encouraged to do "original" work as part of their contribution to the profession. By "original" is meant "new," and strongly implied in this injunction is that "new" means "something that has never been done before."

On one level this makes sense. Why do something that's already been done? Why, for example, would the world need yet one more study of a given topic that has already been done?

Yet on another level, this attitude stifles academic inquiry. When I was an MA student and decided to write my thesis addressing the labor movement in Denver, some of my fellow students pointed out that "the Denver labor movement has already been done" (by David Brundage, The Making of Western Labor Radicalism). As it turns out, the topic of my thesis was so much more specific than Brundage's (I focused on two strikes that he discussed only in passing) that my project still had the originalist bonae fides.

Yet, I find in some of my fellow PhD students, the same concern exists that they be the first to finish with their project. One person, who received her doctorate a year or two ago, was racing to finish her dissertation because another graduate student, somewhere, studied almost the same topic and my friend wanted to be first. Another person, who received his doctorate last year, had many concerns about submitting papers or discussing his project with others who studied the same general topic. His reason for concern: he was consulting archival sources that to anyone's knowledge had not really been used before and he feared tipping his hand to other would-be researchers.

These concerns are rational. One's standing as a contributor to one's profession rests on newness. And especially if one wants a job at a university that prioritizes research, it is important to be innovative in one's research.

Still, I think this is a sad state of affairs for three reasons.

First, it probably over-exaggerates the importance of "newness" to a topic. The first friend I mentioned above has a job at an open-enrollment school that focuses on teaching, and her dissertation's importance lay more in the fact that it is completed than that it is new or even well-done. (For what it's worth, I haven't read the dissertation, but it was probably very well done.) In other words, grad students choose to buy into an inaccurate picture of what is expected of them. (My other friend, however, has a job now at a research-oriented university; so the newness of his topic presumably serves him well.)

Second, this state of affairs probably encourages the writing and over-publication of poor or superfluous scholarship. Everyone is looking for his or her angle on a topic, or is trying to "redefine the paradigm," or is arguing that such-and-such a topic has been excluded and needs to be addressed or that such-and-such a source has been neglected and needs to be used, or might be read differently.

Third, this state of affairs hinders academic inquiry. Under the current regime, we (grad students) are well-advised to keep our topics, interpretations, and especially source-bases (somewhat) to ourselves. Or once a topic is done, it is off-limits, and it must be at least tweaked before it can be done again. So, for example, take my masters thesis. If I had decided to do substantially the same project that Mr. Brundage did, I would have been well-advised to choose another city, say, Colorado Springs instead of Denver (unless a similar study has already been done about Colorado Springs).

This might seem to encourage academic inquiry. After all, more and more is being done about different localities, or with different and/or new sources. But it takes away some of the joy that in my opinion should come with intellectual investigation.

The topic of my PhD dissertation (get ready, it's a long one....) is "antitrust policy in Chicago and Toronto as it may or may not have applied to coal dealers from c. 1880 to 1940." This topic is esoteric enough and boring enough that I probably don't have to worry about someone filching it. But I can't help but thinking how exciting it would be to find someone who has the exact same topic and who uses more or less the exact same sources. How would he or she interpret, for example, Chicago's and Toronto's reaction to the coal shortage of the 1902-1903 winter? Or how about the state of Illinois's attempt to exempt labor unions from its own antitrust law? Or the Canadian fuel administration co-operation with the American fuel administration during World War I? If we looked at the same sources, we could give each other our own insights. Would the other person have suggestions about other sources I might look at? Would I have suggestions to offer?

Similarly with my masters thesis: if I found someone who studied those two strikes in Denver, what would his or her interpretation be?

Now, I understand that this is the way the system works and that most graduate students have every incentive to be wary of over-sharing what they do. Who knows?....if I actually met someone who did my precise topic, maybe I would suddenly become ultra-proprietary of it.

I suspect there is probably some game theoretic used by political scientists or economists that would explain better than I why this state of affairs exists in academia given the current incentives. I just think it's unfortunate.