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In Memoriam: Anne C. Fleming, 1979-2020

Anne C. Fleming, 1979-2020

The historical profession in the United States is mourning the tragic passing of Anne Fleming, Professor at the Georgetown Law Center.  Anne died far too young at the age of 40, just a decade or so into what was shaping up to be an extraordinarily productive career of scholarship, teaching, and intellectual leadership.  The Legal History Blog has already posted a compelling overview of her life and career, with a focus on her contributions to legal history. This remembrance offers a complementary reflection on the significance of Anne’s historical research and writing within the fields of business history and the history of political economy.

Any assessment of Fleming as a scholar should begin with appreciation for the path that led her to embrace the historian’s craft. That route ran through not just the training that she received at Harvard Law School, but extensive experience with the legal situations confronted by Americans in less well-off economic circumstances, and especially those individuals who faced crippling consumer debt. During her time as a law student, she worked for both the Harvard Legal Aid Bureau and the District of Columbia’s Public Defender Service.  After stints serving as a clerk for a federal district judge and then a federal appeals court judge, she spent two years working in Brooklyn for the Foreclosure Prevention Project at the height of the last financial crisis. Thus as Anne entered the PhD program in history at the University of Pennsylvania, she had learned quite a bit about the pressures faced by consumer debtors.

This background shaped Fleming’s choice of research topics, as she developed a dissertation on the legal and policy history of what she came to call “fringe finance,” the provision of credit to Americans who arguably needed it most precisely because they lacked wealth and often struggled to sustain income. Her experiences fostered a bedrock empathy for the subjects of her research.

Although Fleming wrote several excellent journal articles and essays, her primary scholarly achievement was her first book, City of Debtors: A History of Fringe Finance, published by Harvard University Press in 2018, which won the BHC’s Ralph Gomory Prize. City of Debtors explores the roots and evolution of subprime lending through a case study of consumer debt markets and regulation in New York state, and especially New York City, from the 1890s into the 21st century.  It incisively conveys:

the enduring challenges of finding effective regulatory answers to the problems posed by fringe lending, with federalism always mediating state-level regulatory instruments/tools (sometimes driving policy innovation/emulation; sometimes facilitating regulatory arbitrage);

the repeated inclination of many innovative and more successful fringe lenders to seek legitimation and stability through legislation/administrative action that would provide a regulatory basis for their business models, and their frequent success in such efforts;

the recurring concerns over deceptive and abusive practices associated with fringe lending, which drove recurring efforts to clamp down on those practices, especially at the state level, but also sometimes through national policy-making;

the inventiveness of attorneys from all sides, whether in challenging regulatory constraints, looking to find a payday through representation of debtors, seeking to invent causes of action, nudging legal thresholds, etc.

the core structural limitations on the fringe lending business, which required interest rate premiums to cover the fixed costs of making small denomination loans (this crucial point implicitly echoes the business historian’s Thomas McCraw’s crucial stress on the need to take account of sectoral structure in fashioning any regulatory scheme);

the remarkable ingenuity of fringe lenders in developing new business models/lines to sidestep regulatory rules, whether through jurisdictional arbitrage, or “ontological” arbitrage, redefining lending products to evade prevailing rules;

the significance of broader economic and political contexts in shaping the outcomes of regulatory debates over fringe lending – not just prevailing inclinations about the use of state power in structuring markets, but also the salience of specific advocacy coalitions; and 

the possibilities and limits of policy entrepreneurship (whether located within organs of the state, a foundation like Russell Sage, or the American Bar Association) in developing ideas for legal/administrative change, marshaling coalitions to support them, and then actually implementing reforms (the latter often proving more challenging than policy adoption).

These are all important arguments, and they have a bigger collective impact than the mere sum of the individual contributions. Like the very best historians, Fleming knew her way around archives, and was able to pull together a vast array of public and private sources to inform her narrative. Like the most intellectually ambitious historians, she built that analytical account over a significant expanse of time, showing readers the dialectical process by which economic forces generated new problems, which prompted reform ideas, and eventually new regulatory ecologies that stabilized markets for a time, while also opening up new opportunities that undermined that stability. Like the very best legal historians, she had a sophisticated grasp of “law in action” – how economic actors and lawyers respond to legal rules and institutional arrangements.

Far more than most historians of American political economy, Fleming directly and consistently engaged with insights and conceptual frameworks from other social sciences like political science (the dynamics of advocacy coalitions; the significance of agenda setting; the nature of institutional leadership). She similarly never lost sight of the profound policy trade-offs posed by subject matter of fringe lending – most obviously that rules and regulations to constrain interest rates and fees imposed some constraints on access to credit. (Far too many historians presume that policy-makers don’t have to grapple with such difficult trade-offs.)  

Like the very best business historians, Fleming reconstructed the role of entrepreneurs in shaping markets, a process that frequently entailed efforts to bend the contours of law, policy, and regulation. She also took care to analyze the business landscape in its full complexity, distinguishing truly predatory firms from those that sought to establish a profitable business model by providing much needed credit to underserved populations.  

By skillfully connecting these multi-faceted dimensions of modern American capitalism, Fleming produced a beautifully written book that has attracted attention from multiple scholarly audiences, as well as protagonists in the policy-making and implementing processes, whether at the Consumer Financial Protection Bureau, among state and local officials, in consumer NGOs, or the consumer finance industry.

Over the past couple of years, Fleming had embarked on major research into the racial dynamics of American consumer bankruptcy during the first half of the twentieth century. This new project drew on all of the skills that brought City of Debtors to life, as well as newly developed capacity with ArcGIS and digital mapping. Despite the extraordinarily rich evidence that bankruptcy records offer about the social experience of economic misfortune, historians have largely ignored them. Fleming developed a sophisticated research plan to analyze consumer bankruptcy across several American cities -- Birmingham, New York, Atlanta, Memphis, and Chicago. She was comparing the experiences of indebted white, black, and brown workers, while also investigating key institutional innovations such as debt adjustment bureaus and the Debtors’ Court in Birmingham that served as the inspiration for the 1938 creation of Chapter 13 in the federal bankruptcy code (establishing a formal mechanism for stretching out repayment of consumer debt).  As a measure of her creativity and versatility, she had planned to develop companion digital resources, including geographic visualizations of the incidence of indebtedness and insolvency.

This foray into twentieth-century consumer bankruptcy promised crucial insights into how Americans coped with the growth of a wage-based, and increasingly debt-based consumer society, in which most adults, of all races and ethnicities, black, and brown, would remain wage or salaried workers for their entire working lives, subject to the downward drafts of the business cycle. It would have furnished new perspective on the growing reach of the national government (through the expansion of bankruptcy courts), on distinctive local experimentation about how to handle the waxing socio-economic problem of consumer indebtedness, such as through mediation services, and on the racial discrimination that has structured consumer finance throughout our past. There are few senior scholars who could pull off this ambitious undertaking; Anne would have done so with aplomb, reaching not only legal, policy, and business historians, but other social scientists, policy-makers, and the broader public.  

As BHC President Neil Rollings noted in a recent message to the society’s membership, the quality of Fleming’s scholarship had already netted her a slew of awards in business history – the Kerr Prize for the best first paper at a BHC annual meeting; the Krooss Prize for the best dissertation in business history, and then the Gomory Prize.  In addition, Anne had demonstrated a knack for effective professional service. Elected to the BHC Board of Trustees in 2018, she stepped forward to join several important committees, including the Electronic Media Oversight Committee and an ad hoc group to finalize revision of the BHC bylaws.  Anne brought careful thought, maturity, and insight to every leadership role that she took on, and in the past few weeks characteristically concluded successful searches for two critical positions related to the BHC’s online endeavors.  

As the business history community joins legal historians, the law school world, and the wider discipline in grieving, we should all pause and reflect on the many dimensions of what we have lost: 

the several thousand students who will now not encounter Anne’s clarity of expression and insistence on wrestling with the hardest analytical questions; 

the many fellow historians who will not have additional access to her meticulous research, trenchant analysis of how legal and policy institutions have mediated economic life, and great talent for marshalling scholars to collective purpose; and 

the myriad friends and family members who will cherish her always calm presence, fundamental decency, and straightforward warmth.

Anne Fleming will be sorely missed.

Edward J. Balleisen, Duke University, Aug. 31, 2020 

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