Hot Takes on the Comeau Case

19 04 2018

The Supreme Court of Canada today published its ruling in the case of Her Majesty the Queen v. Gerard Comeau. For press coverage, please see here, here, and here. I was the historical expert witness at the 2015 court case that was the subject of the appeal decided today.  Here is my initial reaction (keep in mind I am a non-lawyer).

Although Mr. Comeau lost, the court accepted much of my historical interpretation (see paragraphs 55 to 66 of their decision). In paragraph 67, the Court expands the meaning of section 121, perhaps not as much as the lawyers I was working with might have wanted, but certainly enough to prohibit all interprovincial trade barriers that are protectionist in intent.


In paragraph 67, the Court wrote:

We conclude that the historical context supports the view that, at a minimum, s. 121 prohibits the imposition of charges on goods crossing provincial boundaries — tariffs and tariff-like measures. At the same time, the historical evidence nowhere suggests that provinces, for example, would lose their power to legislate under s. 92  of the Constitution Act, 1867  for the benefit of their constituents even if that might have impacts on interprovincial trade. The historical evidence, at best, provides only limited support for the view that “admitted free” in s. 121  was meant as an absolute guarantee of trade free of all barriers.

In paragraph 106, the Court wrote:

We conclude that a purposive approach to s. 121  leads to the following conclusion: s. 121 prohibits laws that in essence and purpose restrict trade across provincial boundaries. Laws that only have the incidental effect of restricting trade across provincial boundaries because they are part of broader schemes not aimed at impeding trade do not offend s. 121  because the purpose of such laws is to support the relevant scheme, not to restrict interprovincial trade.

It seems to me that this interpretation of s.121 is very similar to the High Court of Australia’s ruling in the 1988 case of Cole v. Whitfield, which revolved around the interpretation of Section 92 of the Australian constitution, which provides for free trade between Australia’s states. (For a comparison of these parts of the Canadian and Australian constitutions, see here). That case involved a fisherman who broke a state environmental law when he imported crabs from another Australian state. The crabs in question were of legal size in the originating state but illegal in size in his home state. The fisherman’s lawyers argued that the state law, which had been intended to protect the crab population, was a protectionist and unconstitutional trade barrier. In this decision, the court ruled that the Australian constitution prohibited only those barriers to interstate commerce that had either a protectionist purpose or effect. Australian courts now apply the so-called “Cole v. Whitfield test” in judging section 92 cases. As in today’s Supreme Court ruling, the Australian court decided that purpose of the law restricting internal trade was crucial in deciding its constitutionality.


Turning back to today’s SCC decision, I was pleased that the Court accepted the view that research on historical context similar to that I provided in my 2015 expert testimony is helpful in interpreting the meaning of the constitution. The Court made an interesting and important point about the role of historical research in constitutional interpretation: it ruled that while historical information of the type I shared was not, by itself, enough to overturn an existing SCC decision, it does matter. In a sense, this part of the ruling was a victory for advocates of some variant of the interpretative doctrine called originalism.

I must say that it was an honour to have worked in the case with a fantastic group of lawyers.



The Impress of the Past on Entrepreneurial Cognition

17 04 2018

Image Source: By JimmyGuano – Newcastle-upon-Tyne-bridges-and-skyline.jpg, CC BY-SA 4.0,

Come hear me present in Newcastle!

I’ll be presenting about my research on how entrepreneurs use history at Newcastle Business School (CCE1, Room 223A), on Wednesday 25th April 2018
17:00 – 18:00

The title of my paper is The Impress of the Past on Entrepreneurial Cognition by Andrew Smith (University of Liverpool) and Jennifer Johns (University of Bristol).



The existing literature gives us only a limited understanding of how entrepreneurs use analogical reasoning. This paper explores how entrepreneurs use historical analogy to recognize opportunities and to evaluate how to exploit them. We document this use of historical analogy through interview research with the users of a set of novel production technologies. The empirical basis of the paper is a FabLab, a digital makerspace. We integrate Paul Ricœur’s insights into the use of historical knowledge into existing scholarly debates about the place of analogical reasoning in entrepreneurial cognition. We find that the entrepreneurs use historical analogy to discuss entrepreneurial opportunities and their use of historical analogy differs according to their technical capabilities. We identify implications for entrepreneurship researchers and for practitioners.

Comeau Case Decision

16 04 2018

On 19 April, the Supreme Court of Canada will announce its decision in the constitutional case of the Queen v. Comeau, which deals with the legitimacy of interprovincial trade barriers in Canada. As long time readers of this blog will know, I was the expert witness who testified at the 2015 lower court case that was the basis of the appeal now being considered by the Supreme Court.

Here is a backgrounder for people outside of Canada.

Canada’s subnational governments, the provinces, impose many restrictions on interprovincial trade that are protectionist in intent and effect. (Canada isn’t the only country to have such internal trade barrier—see here for a gateway into the academic literature on this subject).  Canada’s internal trade barriers appear to conflict with section 121 of the 1867 Canadian constitution, which explicitly provides for free trade between Canadian provinces. This constitution is the British North America Act, 1867 (UK), which was retroactively renamed the Constitution Act, 1867 by the Constitution Act, 1982 . [Most academic historians continue to refer to the text by its historical name]. Since I wrote a PhD thesis and book on the political economy of the 1867 constitution, I am considered to be well qualified to speak about the motivations of the creators of section 121. You can read the expert witness report I wrote for the Comeau case here.

I believe that section 121 was included in the Canadian constitution because the framers of this document wanted the new Dominion of Canada to be a single market without fetters on interprovincial trade. These framers included the Fathers of Confederation- a group of British North American politicians- as well some senior British politicians (especially the Earl of Carnarvon but also Adderley, Watkin, and others), and a handful of very accomplished civil servants and lawyers in London.

150 years later, trade barriers are still in place. For those who don’t wish to read my entire expert witness report, this 2015 CBC article gives a summary of the views I presented in “The Historical Origins of Section 121 of the British North America Act: a Study of Confederation’s Political, Social, and Economic Context



Moving Towards Open Data in Business History

13 04 2018

I have long been an advocate of Open Data and of the adoption of an Open Data norm in the field of business history. I recently published a paper in the journal Business History that outlines why our field needs to adopt Open Data and a system called Active Citation. What Open Data would mean in practice is that whenever a business historian cites a primary source (e.g., a letter in an archive or an article in a historic newspaper), the footnote must include a hyperlink to a scanned image of the document. This system would have a number of advantages. First, it would accelerate the digitization of primary sources and once a primary source has been put online for one purpose, it can be re-used by another researcher. Moreover, the creation of an Open Data rule in business history would be yet another victory for the research transparency movement. In the last half decade, a variety of academic disciplines have embraced research transparency and Open Data is a big part of the research transparency movement.  The requirement that raw data be published alongside the article based on that data is designed to counteract the impression that researchers sometimes use data selectively or in an otherwise unprincipled way.


Although the impetus for research transparency and Open Data has come largely from academics concerned about data mis-representation, the movement has been able to make so much progress in recent years because it has had a backer with deep pockets, the philanthropist John Arnold. Arnold was recently profiled in Wired magazine. I would encourage anyone interested in Open Data and Research Transparency to check out this article.

In view of the importance of Open Data to the future of the field of business history, it is exciting to see that an increasing number of business-historical data sources are being made freely available online.

I see from The Exchange, the blog of the Business History Conference, that The Newberry Library in Chicago has announced a major revision to its policy regarding the re-use of collection images: “images derived from collection items are now available to anyone for any lawful purpose, whether commercial or non-commercial, without licensing or permission fees to the library.”

This reform to the Newberry Library’s rule would certainly help to make it easier for researchers who based papers on materials in their collection to use Open Data in their papers. I would like to congratulate the Newberry Library on their wise decision and would like to encourage other repositories of business historical materials to follow this example whenever they are legally allowed to do so.

Stanford Applied History Conference

31 03 2018


The academic internet was recently ablaze with controversy about a conference on “Applied History” that took place at Stanford (see here, here, and here). The point of this conference was to showcase historical research that can inform policymaking, particularly the making of (US) geo-political strategy.

The conference organizers were criticized for a list of speakers that was almost exclusively male and exclusively white. Journalists at the New York Times picked up on the story and asked the main organizer, Niall Ferguson, about the lack of racial and gender diversity at the conference.

The concerns about the lack of gender and racial diversity are important and suggest that there is a need to encourage more female grad students to do historical research in areas that are relevant to the making of grand strategy. The fact that the academics at the conference are overwhelmingly based at US universities, which is even more problematic than the lack of gender and racial diversity, went un-discussed by the US academics and journalists who covered the story. However, my main problem with the Applied History is that all but one of the sessions was prescriptive and involved academics dispensing advice to policymakers rather than discussing how policymakers use history. I see from the programme that there was a lunch-time discussion with Philip Zelikow and Robert Zoellick on the subject of “Applied History in Washington since c. 2000”. Now that session would be really interesting to me, because it would involve people who are embedded within the Beltway sharing their observations about how history is being used and perhaps misused by policymakers.


So much important research has been done on how policymakers use (and misuse) historical analogy and historical knowledge. I’m thinking of the work of Khong, Jervis, and many other political scientists. There is also the historian Alix Green in this country, who has studied how historical knowledge is used in Whitehall. It is such a shame that none of these researchers were at the conference.

I am sharing the conference programme below

Day One—Friday, March 2, 2018


Breakfast and registration
Welcome and opening remarks
Niall Ferguson
Session 1: Undead Rome: the Decline, Fall and Afterlives of the Roman Empire?

Presenter: Tom Holland
Commentator: Peter Frankopan
Chair: Niall Ferguson
Session 2:Is Trumpism Merely Populism revisited?

Presenter: Eric Rauchway
Commentator: Daniel Sargent
Chair: Niall Ferguson
Session 3: The China Story

Presenter: Frank Dikötter
Commentator: Arne Westad
Chair: Robert Zoellick
Discussion with Aaron O’Connell and Fredrik Logevall: Déjà Vu All Over Again? Vietnam, Afghanistan and the Search for Lessons in History

Chair: Graham Allison
Session 4: The Ecological Origins of Economic and Political Systems

Presenter: Stephen Haber
Commentator: Ian Morris
Chair: Peter Frankopan
Session 5: Kicking Away the Ladder? Cryptocurrencies in Historical Perspective

Presenter: Tyler Goodspeed
Commentator: Barry Eichengreen
Chair: Michael Bordo
Tour of Hoover Archives
Eric Wakin
Session 6: Is Putin’s Russia a Potemkin Power? Leadership, Succession and Russian Foreign Policy

Presenter: Christopher Miller
Commentator: Stephen Kotkin
Chair: Amir Weiner


Day Two—Saturday, March 3, 2018


Session 7: The History of the Future

Presenter: Matthew Connelly
Commentator: Christopher Clark
Chair: Mary Sarotte
Session 8: Thinking Historically: A Cold War Historian’s Reflection on Policy

Presenter: Francis Gavin
Commentator: Marc Trachtenberg
Chair: Arne Westad
Session 9: How Might 21st-Century Deglobalization Unfold?

Presenter: Stefan Link
Commentator: Norman Naimark
Chair: Marc Trachtenberg
Session 10: Same As It Ever Was: The History of Inequality and Mobility

Presenter: Gregory Clark
Commentator: Glen O’Hara
Chair: Harold James
Discussion with Philip Zelikow and Robert Zoellick: Applied History in Washington since c. 2000
Session 11: Wine and Winning: From Muhammad to the Islamic State, a Tangled Relationship

Presenter: David Cook
Commentator: Emile Simpson
Chair: Sean McMeekin
Session 12: Defeating an Idea: What the Cold War Can Teach Us About How States Fight Ideologies

Presenter: Jeremy Friedman
Commentator: John Bew
Chair: Philip Zelikow


Countering Political Risk in Colonial India: German Multinationals and the Challenge of Internment (1914-1947)

27 03 2018

I’m sharing the details of a new HBS working paper that draws on business history to understand the perennial issue of the management of political risk by multinational firms.



Internment in so-called “enemy countries” was a frequent occurrence in the twentieth century and created significant obstacles for multinational enterprises (MNEs). This article focuses on German MNEs in India and shows how they addressed the formidable challenge of the internment of their employees in British camps during both WWI and WWII. We find that internment impacted business relationships in India well beyond its endpoint and that the WWI internment shaped the subsequent perception of and strategic response to the WWII experience. We show that internment aggravated existing staffing challenges, impacted the perception of racial lines of distinctions and re-casted the category “European business.” While internment was perceived and managed as a political risk, the case also shows that it created unexpected networking opportunities, generating a tight community of German businesspeople in India.


The authors are: Christina Lubinski, Valeria Giacomin, and Klara Schnitzer


Prospects for a transparency revolution in the field of business history

27 02 2018


The last five years have seen is an increasing emphasis on research transparency in many disciplines. Unfortunately, the field of business history is being bypassed by the movement for the creation of research transparency institutions. The article begins by showing why it is important for the business history community to engage with the research transparency movement by embracing the principle of Open Data. The article then argues that Active Citation is the right variant of Open Data for the business–history community and that the widespread adoption of Active Citation in the field of business history would be promoted by the creation of a specialised repository for business–historical research data. The challenges involved in establishing such a repository are discussed. The article concludes by arguing that business historical journals and monograph publishers should not require authors to use Active Citation; rather, contributors should merely be required to state whether they have made the data underlying their article available online.


The full paper is available here, in open access.