JULY 18, 2019
ELIZABETH WARREN SOMETIMES JOKES about how low a profile her husband has kept during her political career. In her 2014 memoir, A Fighting Chance, Warren writes that when she first considered running for the Senate, people flocked to her with advice: “Buy new glasses!” they said, “Change your hair!” And more confusingly: “Get married!” Warren muses: “[A]gain? I was pretty crazy about my current husband.” Then there was the time, months later, when The Daily Beast reported that Warren was not, in fact, a lesbian. She writes: “I’d been happily married to the same man for thirty-one years; why would anyone be talking about whether or not I’m a lesbian?”
A full answer to this question probably would have more to do with the current state of political discourse, and especially with misogyny and homophobia, than with the details of Warren’s life or campaign. Still, the relative invisibility of Warren’s husband — the Harvard Law professor Bruce Mann, one of the country’s leading legal historians — is not merely a matter of what the public and the press choose to see. During her political career, Warren — who rose to national prominence while also a law professor at Harvard, particularly of bankruptcy law — has tended to cast Mann in a specific sort of role, one in which he is very supportive but rarely visible.
On this casting, Mann is the calming and level-headed spouse, holder of the couple’s golden retriever, and more Warren’s personal bedrock than her academic or political interlocutor. He is, in a sense, just her husband — not her fellow-Harvard-Law-professor husband. Mann, it seems, is perfectly satisfied with being perhaps the most prominent thinker in the 2020 campaign nobody has heard of. Since Warren entered politics, Mann has given few interviews — he declined one, as well, for this story. And as Mann’s appearances at campaign events and in promotional videos readily attest, he is a private man occupying one of the most public roles in American politics. At Harvard Law faculty workshops when I was a lecturer there, he was always a still and gentle presence — soft-spoken and at times bemused as the more vociferous members of the faculty did battle with the day’s presenter over lunch.
Although the Mann-as-just-a-spouse casting seems to suit him and Warren, it obscures affinities between their work that bring both of them — and Warren’s campaign — more fully into view. Far from being “just” Warren’s husband, or even “just” her fellow-Harvard-Law-professor husband, Mann is a scholar whose work explores the same set of issues at the center of Warren’s work both in academia and in politics. Indeed, Mann’s work helps to deepen the urgency of Warren’s, connecting the difficulty of the present moment with historical strands that go back to colonial America, and to the foundations of human nature.
Warren has described her attraction to Mann, at least upon their first meeting, as having nothing to do with common academic interests. She writes in her memoir: “A lot of people might think that two young law professors would be drawn together because they wanted to talk about law all the time. Nope: I fell in love with Bruce because he had great legs.” And her descriptions of their life together, aside from references to the logistical matter of finding teaching jobs in close-enough geographic proximity, rarely address the details of their academic life. “It didn’t take me long,” she writes, “to figure out that we were very different people. If I was a hard-charging, go-to-the-mat-for-whatever-you-believe kind of professor, he was more of a scholarly, camping-out-in-the-archives-poring-over-an-old-legal-manuscript kind.”
These different styles, of course, need not preclude intellectual engagement concerning the fruits of Mann’s work in the archives, or the beliefs Warren found worth fighting for on the mat. But Warren’s writings and speeches are mum on such things. Instead, her public comments about Mann tend to highlight his sweetness, his willingness to commute long distances during extended periods when they worked at different universities, and his steadfast love and support for his wife. In Warren’s memoir, we hear repeatedly about Mann’s devotion to the family’s dogs, about how he would take Warren for fried clams and light beer after a trying week, about how, when political attacks against Warren started escalating, he would go through the morning papers and, on good days, shout, “Clear!” before asking Warren if she wanted oatmeal.
Mann’s extensive legal expertise, meanwhile, is almost never mentioned — aside from an anecdote in Warren’s memoir about a time Mann was out canvassing for Warren alongside former Massachusetts governor and 1988 presidential candidate Michael Dukakis. Hearing no answer at the front door of a house, Dukakis apparently tried going around to the back. “While Bruce was thinking about the laws of trespass,” Warren reports, noting that Mann is “a professor of property law and takes this sort of thing pretty seriously,” Dukakis opened a gate and faced a large dog “barking wildly, slobber flying everywhere.” Dukakis, “[a]fter jumping onto a small side porch,” “called back over his shoulder to Bruce with the first lesson of political door knocking: ‘Ignore the dog. You won’t change his mind anyway.’” No one, it seems, brought suit for trespass to land.
Mann may teach property law, but his books touch on many of the same issues around debt, bankruptcy, and inequality Warren has been writing about — and campaigning about — for years. His first book, the 1987 Neighbors and Strangers, an outgrowth of the dissertation he completed for a PhD in history from Yale, has much to do with the development of inequality within legal institutions, particularly around debt and debtors.
Warren built her formidable academic reputation as a scholar of debt and bankruptcy, especially by exploring the practical consequences of bankruptcy law for American families. Digging into the data, she sought to counteract an old sort of morality about debt and bankruptcy — the notion that economic failure, at least for individuals and families, is a form of moral failure, and the notion that those who fall into debt are cheaters and deadbeats.
This sort of morality, Warren has long argued, obscures a much more complex and unsettling reality, one in which bankruptcy does not strike only cheaters and deadbeats, but also (and more frequently) people who made understandable choices under the circumstances. The risk and frequency of bankruptcy, as Warren highlighted in her work, has exploded over the last several decades, a dynamic she attributes in large part to financial institutions wielding moralistic narratives about debt (along with lots of lobbying dollars) in order to defeat common sense reforms. These were the issues that propelled Warren from Harvard into the political sphere, first by way of targeted attempts to combat this non-virtuous cycle, and then through broader efforts to reshape the political pattern it reflects, namely an economic and political system Warren has argued is “rigged” in favor of the powerful.
Mann’s scholarship does not join this battle, at least not head-on. On the surface, his book Neighbors and Strangers, subtitled “Law and Community in Early Connecticut,” concerns perhaps as dry an academic topic as one can imagine: the evolution of legal procedure in 17th- and 18th-century Connecticut. And, although Mann notes that “[m]ost of the cases” he studies in the book “are debt actions of various kinds,” he says that focus is “simply a function of the overwhelming predominance of debt cases in civil litigation generally.” Mann suggests that his real topic is not debt, but rather the emergence of formal legal norms in colonial America from more informal communal norms. That may sound far away from the present moment, but it is not. It’s the same conversation, just playing out in the historical archives rather than the union hall or the public square.
At its core, Neighbors and Strangers is a meditation on the nature of legal and political community, and particularly a cautionary tale about how to conceive of social change. Are we better off with a legal system that treats neighbors and strangers alike, i.e., the system that emerged as formal legal norms displaced more communal modes of dispute resolution? Might things have gone another way, a way that would have done a better job of binding us together in a common enterprise? There is an echo, in these questions, of the question animating Rousseau’s famous discourse on the origin of inequality: what is gained (and lost) when humans come together and begin to forge social institutions?
Perhaps more than Rousseau, who mourns a lost world, Mann warns against mythologizing the past. The notion of premodern community, he writes,
conjures images of a simpler time when relations were close and familial, when people mattered more than things, when neighbors truly did love one another as they loved themselves. We may not know quite what community means, but we are certain that our ancestors had it and that we do not.
This “veil of romanticism,” Mann adds, “lends special peril to the historical study of community.”
Mann’s caution prepares us for the crux of his argument: the rise of legal institutions in colonial Connecticut was not so much a story of the decline of community as a story of its redefinition. Community became more complex, more diffuse, more interconnected. People no longer lived in tiny and homogeneous commonwealths, where conflict could be handled individually, but rather came to inhabit systems that depended on “technical rules that homogenized disputes.” There is a clear flavor of inevitability here, as in Rousseau’s discourse on inequality: we cannot go back. The past, for Mann, may be lost in this sense, but it was not so much regrettably abandoned as moved on from, a passing stage within a necessary progression. It thus makes little sense, per Mann, to ask if law is somehow “inimical to community.” Better, he suggests, to ask how the relationship between law and community evolves with broader shifts in human relations.
Better yet, perhaps, would be to ask how the relationship between law and community should evolve. This is of special interest to Warren, of course, whose initial appearances in the public sphere came amid her efforts, in The Two-Income Trap (2004), to at once describe a set of important shifts in human relations — shifts emerging from the proliferation of two-earner households — and to offer prescriptions for how the law might most reasonably and justly keep up with those changes. It is also the stuff of her presidential campaign, which has arguably been more concerned with the substance of policy, and more creative in advancing concrete proposals to address social and legal problems, than the campaigns of any of her competitors.
One of the central questions of the 2020 campaign, though, is whether this conversation can really be had. Should Warren secure the nomination, she would face a sitting president much preoccupied with a mythical past, one centered on the perceived loss of a particular kind of community. Warren’s competitors in the Democratic field, meanwhile, have been more wary than she about engaging on specifics about what kind of community we want to have, not just in the vague, feel-good sense, but in the concrete sense of how we want to address the societal shifts that have been building since Warren first became a law professor in the late 1970s. Warren has not been immune from this sort of avoidance: at times it can sound like she is nostalgic for the 1950s labor market, at least the one for men. But mainly she seems to be trying to have an honest, if at times unsettling, conversation about community — a conversation attuned to the perils of the sort of romanticism Mann decries.
Warren has explained her interest in bankruptcy as the product of concerns of being poor — “really poor” — during her childhood. Her father shared these concerns, she writes in her memoir, and his response “was never to talk about money or what might happen if it ran out.” When Warren was 12, her father had a heart attack and lost his job as a carpet salesman. The family struggled to stay afloat, lost the family station wagon, and faced losing the family home when Warren’s mother got a minimum-wage job answering phones at Sears. Warren’s response to this was the opposite of her father’s: she resolved to study “contracts, finance, and most of all, economic failure,” as if by talking about this kind of failure she could rule it out for herself.
Mann’s second book — Republic of Debtors (2002) — fits within that same general project. Where Neighbors and Strangers is about the dangers of mythologizing a lost past, Republic of Debtors is about the dangers of mythologizing debt and wealth, particularly by way of loose talk about the morality of economic success and failure. In early America, Mann writes, “inability to pay was a moral failure, not a business risk” and, “[l]ike other moral failures, such as fornication or drunkenness, it called forth sanctions that to modern eyes were disturbingly punitive.” But Mann explains that during the colonial period these views, rooted in the notion that to take on debt was a sin in the eyes of God, began to soften as debt came to be seen as a natural part of economic exchange within what was becoming an increasingly commercial society.
To illustrate this shift, Mann traces how usage of paper money, itself nothing more than a debtor’s note, “called into question ideas and beliefs that once had been certain, such as the meaning of value.” He points, too, to how the rise of credit instruments enabled impersonal relations between creditors and debtors — and how these instruments helped fuel the expansion of economic activity and helped make more visible “the power and caprice of the market.” People, Mann says,
began to see that there were honest bankrupts as well as dishonest ones, that insolvency could result from economic misfortune rather than idle profligacy, and that creditors could oppress debtors as readily as debtors could defraud creditors. Some even argued that a certain level of business failures was a healthy measure of entrepreneurial expansion.
What is of special interest to Mann — and telling for Warren’s view of the world — is the cognitive dissonance that emerged amid these shifts in thinking. Insofar as economic failure affected the wealthy and the powerful — commercial debtors such as financiers and merchants — it became seen as a necessary risk of doing business, rather than a moral stain. Accordingly, legal protections arose, affording such people ways to discharge their debts. But to the extent that economic failure affected those with less power — artisans, farmers, and the like — narratives about the sinfulness of debt remained. The artisan or farmer, of course, was subject to the whims of the market just like the merchant. And, as Mann writes, artisans and farmers could be “every bit as entrepreneurial as their mercantile betters and at least as important to the developing economy.” Yet they were left without the same legal protections, and with old views that debt merited punishment.
Mann is not shy about drawing the connection to our present age, though like any good historian he leaves doing so for the last pages of his book, couching the connection as merely extensional, not the primary import of the work. Republic of Debtors concludes with a discussion of the passage of the country’s first federal bankruptcy law in 1800 and its repeal just three years later. Mann points to the overwhelming dissatisfaction with that law — repealed by a House vote of 99 to 13 — as yet another instance of dissonance around debt: the imprecision of the aims of bankruptcy helped yield a law that pleased few, and this dissatisfaction drew on familiar moralizing about the sinfulness of debt. As Mann writes, the continued influence of a moralistic view of debt “assured that insolvency could never be simply an economic issue but rather one with religious, moral, social, political, legal, and ideological dimensions as well.”
The same, Mann suggests, is true today. When individuals fail there is much talk about “the ethic of personal responsibility.” But this sort of talk is largely absent when it comes to corporate economic failure. Here, once more, is the divide between the commercial debtor and the mere artisan or farmer. Meanwhile, Mann writes,
we rarely question the economic and political structures that undermined [the individual’s] independence by creating a world in which mere subsistence often requires husbands and wives to work, leaving families vulnerable when they lose a wage-earner to death, illness, injury, divorce, or unemployment. An almost religious belief in the moral neutrality of the market deflects such questions by making failure individual rather than structural.
And that belief in moral neutrality reinforces the old moralism about debt: it is not a matter of economic risk, or a matter informed by law and by politics, but rather purely a matter of depravity.
If there were a single strand to Warren’s campaign, it might be to vanquish the simplistic view of economic failure Mann here critiques, and to face the underlying economic, social, legal, and political issues head-on. In her memoir, Warren writes that when she first began studying economic failure in the 1970s, she “clung to the idea that the people in bankruptcy were different” — that they were “cheaters and deadbeats” — and that “everyone else would be safe.” But she found the opposite: people who were so familiar, who easily could have been her. Going to bankruptcy court hearings, she wrote, was like “staring at a car crash, a car crash involving people you knew.” Narratives about debt and bankruptcy as purely personal failures, as akin to sin, reinforce the illusion Warren first sought to maintain. As Mann helps to show, it is an illusion with a long history, one that is neither easily rooted out nor easily discussed.
What does it mean that Mann, the person who wrote these books, is Warren’s personal bedrock? Warren’s campaign, of course, is ultimately about Warren, not Mann. And yet there is a sense in which Mann’s work helps bridge Warren’s academic work and the much larger project on which she has embarked, one that goes beyond debt and bankruptcy and to the very essence of human relations — to the nature of community, the conception of exchange that binds us together, and the difficult task of reshaping these things in real time.
Neither Mann nor Warren cite the other frequently in their work. It is a rare moment, in the Two-Income Trap, when Warren alludes to Mann: “It seems that the Golden Age of Bill Paying was always in the past,” she writes, “and that previous generations always had higher standards and greater integrity.” “Thorough histories of the early republic, such as Bruce Mann’s,” Warren continues in a footnote, “are replete with stories of the battles between debtors and creditors, and the canny ways in which each side tried to outmaneuver the other.”
Perhaps a clear-eyed view of the structural dynamics Mann identifies can help us rise above the constant efforts at outmaneuvering — and the mythologization and moralization of the past — toward something more honest, something truer. Or perhaps the best way to reach something more honest is by way of really knowing how the game is played, so as to do the best kind of maneuvering possible and vanquish the opposition. These questions are not ones Mann has sought to answer. They are, instead, for Warren. And for us.