Citing Slavery

Stanford Law Review

Volume 72

anuary 2020

ARTICLE

Citing Slavery

Justin Simard*

Abstract. The law of slavery is still good law. In the twenty-first century, American

judges and lawyers continue to cite case law developed in disputes involving enslaved

people. These cases provide law for a wide variety of subject areas. Judges cite slavery to

explicate the law of contracts, property, evidence, civil procedure, criminal procedure,

statutory interpretation, torts, and many other fields. For the most part, judges cite these

cases without acknowledging that the cases grew out of American slavery and without

considering that a case’s slave origins might lessen its persuasive authority. Nor do they

examine the dignitary harms that the citation of slavery may impose. In citing slavery,

lawyers thus demonstrate a myopic historical perspective that creates legal harms and

reveals the ethical limitations of their profession. This Article illustrates the benefits a

broader historical perspective can bring to bear on contemporary doctrinal issues. At a

time when American groups and institutions from businesses to universities are coming to

grips with the legacy of slavery, the legal profession has an obligation to do the same.

* Justin Simard is a Visiting Assistant Professor at Willamette University College of Law

and will be an Assistant Professor at Michigan State University College of Law beginning

in 2020. Thanks to generous research support from the Baldy Center for Law and Social

Policy, the American Bar Foundation, and Northwestern University. I am grateful for the

useful feedback I have received on many drafts of this paper. Thanks especially to Greg

Ablavsky, Julia Bernier, Anya Bernstein, Chris Beauchamp, Guyora Binder, Todd Brown,

Smita Ghosh, Andrew Fede, Joanna Grisinger, Joe Gerken, Cassandra Good, Sally

Barringer Gordon, David Hausman, Amanda Kleintop, Sophia Lee, Jonathan Manes,

Errol Meidinger, Jeffrey Omari, Stephanie Phillips, Kumar Ramanathan, Caitlin

Rosenthal, Willa Sachs, Chris Schmidt, Mary Rumsey, Matt Steilen, Karen Tani, and

Adam Wolkoff. Also, thanks to the students in my “Law of Slavery” class, who helped me

think through these issues.

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72 STAN. L. REV. 79 (2020)

Table of Contents

Introduction .............................................................................................................................................................. 81

I. The Law of Slavery ..................................................................................................................................... 85

II. The Living Law of Slavery ..................................................................................................................... 94

A. Finding Slave Cases ........................................................................................................................... 97

B. Normalizing Slave Law .................................................................................................................. 99

C. Harms of Citing Slavery ............................................................................................................... 107

1. Legal problems ........................................................................................................................ 107

2. Dignitary harms ..................................................................................................................... 109

III. Repealing Slave Law ................................................................................................................................. 113

A. Judges Address Slave Law ........................................................................................................... 113

B. Others Address the Legacy of Slavery .................................................................................. 115

C. Addressing Slave Citation ........................................................................................................... 119

D. Objections ............................................................................................................................................. 122

Conclusion ................................................................................................................................................................ 124

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72 STAN. L. REV. 79 (2020)

Introduction

In 2015, Justice Thomas, writing in dissent, relied on an 1848 Kentucky

case for the uncontroversial proposition that “the judiciary [is] ‘the tribunal

appointed by the Constitution and the law, for the ascertainment of private

rights and the redress of private wrongs.’”

The private wrong which the Court

addressed in that case was the legislature’s deprivation of a widow’s rights to

her husband’s estate, which included a number of enslaved people.

Thus, the

Kentucky court appointed itself tribunal to enforce the right of a person to

inherit other people. Justice Thomas, however, did not acknowledge the case’s

distinctive subsequent history. Because it concerned the inheritance of

enslaved people, the Kentucky case had arguably been abrogated (on other

grounds) by the Thirteenth Amendment.

The failure to consider the effect of

the Thirteenth Amendment on slave cases is the rule rather than the exception:

Neither Westlaw nor LexisNexis flag cases involving the enslaved as

questionable precedent. Nor is it unusual for courts to rely on such cases

without addressing their relation to the law of slavery.

Slave cases, that is, cases involving human property, are still commonly

cited in the twenty-first century. Other scholars have provided extensive

analysis of the racial context and biases of American law, but this Article is the

first to recognize and consider the implications of courts’ continued reliance on

slave cases. My research reveals that courts routinely treat these cases as good

law in a wide variety of subject areas. The law of contracts, property, evidence,

civil procedure, criminal procedure, statutory interpretation, torts, and many

other fields still relies significantly on slave cases. I discovered this reliance by

using standard electronic legal research tools. Proceeding on a state-by-state

basis, I found hundreds of opinions over the last three decades in which judges

1. Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1966 n.4 (2015) (Thomas, J.,

dissenting) (quoting Gaines v. Gaines, 48 Ky. (9 B. Mon.) 295, 301 (1848)).

2. See Gaines, 48 Ky. (9 B. Mon.) at 295-98.

3. See U.S. CONST. amend. XIII (“Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have been duly convicted, shall exist

within the United States, or any place subject to their jurisdiction.”). Whether or not

Gaines has been abrogated by the Thirteenth Amendment depends on how its holding

is characterized. Cf. Joel Heller, Subsequent History Omitted, 5 C

ALIF. L. REV. CIR. 375, 375-

(2014) (discussing controversy over Westlaw’s classification of cases as abrogated).

For additional discussion of Westlaw and LexisNexis classification of cases,

see also

Brian J. Broughman & Deborah A. Widiss, After the Override: An Empirical Analysis of

Shadow Precedent, 46 J.

LEGAL STUD. 51, 52 (2017) (noting that Westlaw and LexisNexis

are faster at reflecting judicial than statutory overrides of decisions); Alan Wolf &

Lynn Wishart, A Tale of Legal Research—Shepard’s

and KeyCite

Are Flawed (or Maybe It’s

You), N.Y. S

T. B. ASS’N J., Sept. 2003, at 24, 25 (“For the citators, a case is bad law only if it

is reversed or named in an overruling opinion.”).

4. See infra Part II.A.

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72 STAN. L. REV. 79 (2020)

cited slave cases. Courts in Alabama, Alaska, Arizona, Arkansas, California,

Colorado, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana,

Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New

Hampshire, New Jersey, New York, North Carolina, Oklahoma, Oregon, South

Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming have all

cited slave-related cases in the last thirty-five years; I have also found citations

to slave cases by the U.S. Supreme Court and nearly every federal court of

appeals in the same period.

Courts routinely cite these cases without acknowledging that they may no

longer be, in a formal sense, good law. More important, courts rarely consider

the ways in which a case’s slave context makes it less persuasive authority. For

example, although most courts would agree that the judiciary is “the tribunal

appointed by the Constitution and the law, for the ascertainment of private

rights and the redress of private wrongs,” a case involving the judiciary’s

regulation of the buying and selling of human beings is a poor reason to justify

such legal authority.

Consider a few other examples. In 1994, the Supreme Court of Mississippi

relied on a case involving the inheritance of enslaved people for the

proposition that “[a] contract to devise or bequeath property by will is valid.”

In other words, the court relied on an example of a contract that would now be

invalid to explain why contracts are valid.

Similarly, in 2004, the Court of

Appeals of Maryland relied on an 1862 case involving “certain specific

advancements, in cash, notes and negroes”

as its chief authority for the “theory

of mutuality” in collateral estoppel.

It did not note any irony in the citation

of a case concerning the sale of humans to justify collateral estoppel on the

grounds of what “[j]ustice requires” and what “the public tranquility

demands.”

It is axiomatic that where an opinion’s holding is no longer valid,

courts may look to the opinion to the extent that it remains persuasive. But

5. See infra notes 74-108 and accompanying text. For more on my methodology, see

note 100 below.

6. But see, e.g., Wellness Int’l Network, 135 S. Ct. at 1966 n.4 (quoting Gaines, 48 Ky. (9 B.

Mon.) at 301).

7. Alvarez v. Coleman, 642 So. 2d 361, 372 (Miss. 1994) (citing Anding v. Davis, 38 Miss.

574 (1860)).

8. See Anding, 38 Miss. at 591-92, 594-95.

9. Cecil v. Cecil, 19 Md. 72, 81 (1862).

10. See Rourke v. Amchem Prods., Inc., 863 A.2d 926, 945 (Md. 2004) (“Justice requires that

every cause be once fairly and impartially tried; but the public tranquility demands

that having been once so tried, all litigation of that question, and between those parties,

should be closed forever. It is also a most obvious principle of justice, that no man

ought to be bound by proceedings to which he was a stranger.” (quoting Cecil, 19 Md. at

79)).

11. Id.

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72 STAN. L. REV. 79 (2020)

when it comes to slave cases, courts not only routinely fail to note that many of

the decisions on which they rely have been abrogated, but also—perhaps as a

result—rarely discuss or consider whether the slave context of the cases limits

their persuasiveness.

This legal failure is also a historical and ethical one. Judges who cite slave

cases demonstrate an interest in doctrinal history, while ignoring the broader

context within which this doctrinal history developed. The Supreme Court of

Arkansas, for example, cited a case about the inheritance of enslaved people for

the proposition that a fee simple was “the greatest estate or interest owned by a

person to convey.”

It even referred to the earlier court, which enforced a

bequest for the transfer of enslaved people, as “[w]e.”

In cases such as these,

courts draw connections between themselves and earlier jurists, but they

rarely acknowledge the role of nineteenth-century judges who facilitated and

maintained slavery, both in opinions directly upholding slavery and—equally

important—in opinions applying standard private law doctrines to slave

commerce. The judiciary’s myopic approach to history not only obscures the

complicity of lawyers in slave commerce but also presents a misleading

portrait of the development of American law.

Failing to engage slavery leads

12. It can be argued that some slave cases, such as those related to the rules of pleading,

have not been abrogated because the substance of these cases did not affect their

procedural holdings. The distinction between substance and procedure, however, is not

so simple. See Walter Wheeler Cook, “Substance” and “Procedure” in the Conflict of Laws,

42 Y

ALE L.J. 333, 335-41 (1933) (analyzing “confusion” in approaching the distinction

between substance and procedure); Thomas O. Main, The Procedural Foundation of

Substantive Law, 87 W

ASH. U. L. REV. 801, 815 & n.78 (2010) (collecting literature on the

difficulty of drawing neat lines between substance and procedure). Moreover, in nearly

every one of these cases, an enslaved person should have been party to the case, which

may have affected the case’s outcome. Even if not strictly abrogated, these cases might

still provide less persuasive precedent for the reasons I explain in more detail in

Part II.C below.

13. Barton Land Servs., Inc. v. SEECO, Inc., 428 S.W.3d 430, 436 (Ark. 2013) (citing

Moody v. Walker, 3 Ark. 147, 190-91 (1840)).

14. Id. Other courts have also used “we” when citing slave cases. See, e.g., Whiteacre P’ship v.

Biosignia, Inc., 591 S.E.2d 870, 879 (N.C. 2004) (“As we noted over 150 years ago,

[estoppel] is a principle which ‘lies at the foundation of all fair dealing between

[persons], and without which, it would be impossible to administer law as a system.’”

(second alteration in original) (quoting Armfield v. Moore, 44 N.C. (Busb.) 157, 161

(1852))); see also Armfield, 44 N.C. (Busb.) at 157 (deciding an action for replevin for the

return of enslaved persons).

15. For more on the role of judges in enforcing slave commerce, see Justin Simard, Slavery’s

Legalism: Lawyers and the Commercial Routine of Slavery, 37 L

AW & HIST. REV. 571, 574

(2019) (“[Commercial legal actors] supported slavery in subtle but important ways.”). See

also R

OBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 6

(1975) (describing a “collaboration” of judges in a “system of oppression”). See generally

Andrew Fede, Legal Protection for Slave Buyers in the U.S. South: A Caveat Concerning

Caveat Emptor, 31 A

M. J. LEGAL HIST. 322 (1987) (arguing for the importance of slave

context in understanding the doctrinal development of commercial law).

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72 STAN. L. REV. 79 (2020)

judges to provide inadequate histories, even on their own doctrinal terms.

Moreover, by refusing to recognize “slave cases” as a relevant category of legal

and historical analysis, judges also impose dignitary harms. Slavery was a

brutal system, and slave cases discuss that brutality, sometimes in excruciating

detail. Citing such cases without commentary ignores the humanity of those

subjected to legal subjugation and treats white supremacist judges as respected

authorities.

The legal profession must take these harms seriously. When led to slave

cases through research or citation, judges should reconsider their validity in

light of contemporary constitutional and legal principles. Where courts

determine that a slave case’s holding remains persuasive, they should

acknowledge and explain the case’s slave context and explicitly justify their

reliance on case law that has been abrogated by the Thirteenth Amendment. In

a few cases, courts have recognized that a case’s context in slavery ought to

affect their treatment of the case, but these limited attempts are too brief and

too scattered to seriously address a systemic problem.

The reconsideration of citation to slave cases will not remove slave cases

from reporters, overrule them, or remake a legal system that depends in part

on such cases.

The impossibility of erasing the legacy of slavery, however,

does not excuse judges from acknowledging that legacy. Only by confronting

slavery’s past can we learn from and attempt to address its costs. At a time

when other groups and institutions, from universities to businesses, are

confronting their links to slavery,

lawyers must do the same.

This Article proceeds in four parts. Part I provides an overview of the

nineteenth-century law of American slavery. American judges and lawyers

facilitated and maintained slavery through legal forms that outlived the

16. See infra Part III.A.

17. See, e.g., Guyora Binder, Paper, The Slavery of Emancipation, 17 CARDOZO L. REV. 2063,

2101 (1996) (arguing that the legacy of slavery is so extensive that it still persists in the

“institution of race”); cf. M

ICHELLE ALEXANDER, THE NEW JIM CROW: MASS

INCARCERATION IN THE AGE OF COLORBLINDNESS 2, 193 (2010) (“We have not ended

racial caste in America; we have merely redesigned it.”); Derrick Bell, Racial Realism, 24

ONN. L. REV. 363, 369 (1992) (highlighting the limits of civil rights jurisprudence); Neil

Gotanda, A Critique of “Our Constitution is Color-Blind,” 44 S

TAN. L. REV. 1, 2

(1991) (“[C]olor-blind constitutionalism . . . fosters white racial domination.”); Alex M.

Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails

African-Americans Again, 81 C

ALIF. L. REV. 1401, 1402 (1993) (“[T]he Supreme Court’s

decision in Fordice is wrong as a matter of social policy because it is built upon a

premise of integrationism, first articulated in Brown, that has failed our society.”);

Patricia J. Williams, Comment, Metro Broadcasting, Inc. v. FCC: Regrouping in Singular

Times, 104 H

ARV. L. REV. 525, 539 (1990) (“[C]ourts actually deal in and perpetuate not

merely individual property interests, but also property interests that govern, silence,

and empower significant groups of us as citizens.”).

18. See infra Part III.B.

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72 STAN. L. REV. 79 (2020)

institution of slavery. Part II examines the widespread contemporary citation

of slave cases by American judges. It argues that the opinions in slave cases are

generally neither good law nor persuasive on their own terms, and that their

citation is harmful to participants in the legal system. Part III analyzes other

responses to the legacy of slavery in American life and provides a preliminary

framework for judges considering the citation of slave cases. Finally, the

Article concludes by calling for lawyers to expand and deepen their ethical

perspective.

I. The Law of Slavery

Slavery has deep roots in American law. From commerce to criminal law

to inheritance, slave-related disputes composed a significant portion of

American dockets. Appellate case reporters for the fifteen slave states contain

almost 11,000 cases concerning enslaved people prior to Emancipation.

Appellate reporters in states that abolished slavery earlier also contain

hundreds of slave cases.

Involvement in slave commerce meant not only

ruling on cases involving the enslaved, but actively participating in the sale of

enslaved people. South Carolina’s judicial system, for example, dealt with so

many cases related to enslaved people that its courts “acted as the state’s

greatest slave auctioneering firm.”

American courts also provided the

apparatus to secure millions of dollars of loans backed by enslaved people.

Lawyers made such support for slave commerce possible by using legal

tools to fit slave cases into familiar categories. By integrating cases involving

enslaved people into mainstream legal institutions, lawyers made slave cases

part of the foundation of American jurisprudence. American institutions, even

Northern ones,

accommodated themselves to slaveholding. Legal institutions

continued to support slavery, even during the 1840s and 1850s, amid

19. Jenny B. Wahl, American Slavery and the Path of the Law, 20 SOC. SCI. HIST. 281, 281, 304

n.1 (1996).

20. For cases from states that abolished slavery prior to the Thirteenth Amendment, see 4

UDICIAL CASES CONCERNING AMERICAN SLAVERY AND THE NEGRO (Helen Tunnicliff

Catterall ed., 1936); and 5 J

UDICIAL CASES CONCERNING AMERICAN SLAVERY AND THE

NEGRO (Helen Tunnicliff Catterall ed., 1937).

21. Thomas D. Russell, South Carolina’s Largest Slave Auctioneering Firm, 68 CHI.-KENT L.

REV. 1241, 1241 (1993).

22. See generally Bonnie Martin, Slavery’s Invisible Engine: Mortgaging Human Property, 76 J.S.

HIST. 817 (2010) (illustrating through court records the importance of mortgages on

enslaved people to the Southern economy).

23. Jeffrey M. Schmidt, The Antislavery Judge Reconsidered, 29 LAW & HIST. REV. 797, 829-33

(2011) (“Although [Massachusetts Supreme Court Justice Lemuel] Shaw was an avowed

opponent of slavery, he consistently upheld the provisions of the fugitive slave acts

and returned fugitives to bondage.”).

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72 STAN. L. REV. 79 (2020)

heightening sectional tensions over slavery’s future.

The law of slavery was

so enmeshed in American law that neither the Reconstruction Amendments

nor the Civil Rights movement could dismantle it. Understanding slave law as

formative not only helps to explain its continued citation but also illustrates

how the law developed to help keep people enslaved. This Part provides an

overview of the nineteenth-century law of slavery, explaining how American

lawyers allowed ordinary commercial law to support the brutal slave regime

and brought slave precedent into the mainstream of American law.

Nineteenth-century lawyers distinguished commercial cases involving

enslaved people, which they classified alongside other commercial cases, from

the narrower category of the law of slavery, which included the basic ground

rules of slavery. From this perspective, the law of slavery encompassed the law

of maternal descent that governed the inheritance of slave status,

judicial

decisions that allowed for brutal punishment,

statutes that hindered

manumission,

fugitive slave laws,

and so on. This approach to

understanding the law of slavery, which has been adopted by some modern

scholars and lawyers, relegates the subject to an exception to broader American

legal thought and practice, treating commercial cases involving enslaved

people like other contracts and property cases. Such a perspective emphasizes

the differences between law in the North—where the fundamental law of

slavery did not apply—and law in the South, and helps to explain sectional

differences in American jurisprudence.

Some Northern lawyers, scholars

24. Simard, supra note 15, at 573-74; see also ANDREW FEDE, PEOPLE WITHOUT RIGHTS: AN

INTERPRETATION OF THE FUNDAMENTALS OF THE LAW OF SLAVERY IN THE U.S. SOUTH 17-

(1992) (noting the accommodation of slavery in common law).

25. See, e.g., Act XII, reprinted in 2 WILLIAM WALLER HENING, THE STATUTES AT LARGE:

BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE

LEGISLATURE IN THE YEAR 1619, at 170 (1823); see also KATHLEEN M. BROWN, GOOD

WIVES, NASTY WENCHES, AND ANXIOUS PATRIARCHS: GENDER, RACE, AND POWER IN

COLONIAL VIRGINIA 133 (1996) (analyzing Virginia law of maternal descent).

26. See, e.g., State v. Mann, 13 N.C. (2 Dev.) 264, 266 (1829) (per curiam) (“The power of the

master must be absolute, to render the submission of the slave perfect.”).

27. See, e.g., Act Prescribing the Mode of Manumitting Slaves in this State (1801), reprinted

in T

HOMAS R.R. COBB, A DIGEST OF THE STATUTE LAWS OF GEORGIA, IN FORCE PRIOR TO

THE SESSION OF THE GENERAL ASSEMBLY OF 1851, at 983 (1851) (prohibiting any person

from manumitting enslaved people); see also A

NDREW FEDE, ROADBLOCKS TO FREEDOM:

SLAVERY AND MANUMISSION IN THE UNITED STATES SOUTH 87-138 (2011) (describing

limitations on emancipation in Southern states); T

HOMAS D. MORRIS, SOUTHERN

SLAVERY AND THE LAW, 1619-1860, at 398-99 (1996) (same).

28. See Fugitive Slave Act of 1793, ch. 7, 1 Stat. 302 (providing for the seizure or arrest of

“fugitive[s] from labour”); Fugitive Slave Act of 1850, ch. 60, 9 Stat. 462 (expanding the

power to return allegedly fugitive slaves).

29. See PAUL FINKELMAN, AN IMPERFECT UNION: SLAVERY, FEDERALISM, AND COMITY 19

(1981) (“The decisions of the state judges and the statutes of the legislatures demonstrate

footnote continued on next page

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72 STAN. L. REV. 79 (2020)

have noted, helped oppose slavery by supporting free-labor ideology, bringing

freedom suits, and publicizing the brutality of slavery.

Southern legal actors,

by contrast, enforced fugitive slave laws and discouraged emancipation.

Disputes about these contentious issues were often couched in arguments based

in “higher law” rather than standard legal rules.

They seem far removed from

the common law cases that occupied most lawyers and judges. In this story, the

Reconstruction Amendments were the official repudiation of the U.S. slave

regime.

The aberration of slavery was abolished once the amendments

outlawing human bondage were enacted.

This approach understates the important role of law and lawyers in

supporting slavery. Although sectional conflicts appeared in cases and

legislation, for the most part lawyers readily accommodated the American

legal system to slavery. They did so with the cooperation of Northern lawyers

who shared a legal vision that emphasized technical rules and customs and

relied on learned citation.

This professional approach could be deployed for

many different purposes, and lawyers spent a significant portion of their time

how a nation of states was well on its way to dissolving its judicial and legal binds

when secession completed that process.”).

30. See, e.g., PAUL FINKELMAN, SLAVERY IN THE COURTROOM: AN ANNOTATED BIBLIOGRAPHY

OF AMERICAN CASES 11, 12-13 (1985) (describing the use of court cases as a publicity tool

of the antislavery movement); E

RIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE

IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 9 (2d ed. 1995) (describing

free labor ideology that “led northern Republicans to an extensive critique of Southern

society, which appeared both different from and inferior to their own”).

31. See ALFRED L. BROPHY, UNIVERSITY, COURT, AND SLAVE: PRO-SLAVERY THOUGHT IN

SOUTHERN COLLEGES AND COURTS AND THE COMING OF CIVIL WAR 217-26, 254-74 (2016)

(discussing judicial opposition to emancipation); S

TEVEN LUBET, FUGITIVE JUSTICE:

RUNAWAYS, RESCUERS, AND SLAVERY ON TRIAL 5-8 (2010) (describing tensions

surrounding fugitive slave cases in the North); M

ORRIS, supra note 27, at 398-99

(discussing state-imposed limitations on emancipation); M

ARK V. TUSHNET, THE

AMERICAN LAW OF SLAVERY, 1810-1860: CONSIDERATIONS OF HUMANITY AND INTEREST

228 (1981) (describing limitations on a “master’s power to emancipate”); John Phillip

Reid, Lessons of Lumpkin: A Review of Recent Literature on Law, Comity, and the Impending

Crisis, 23 W

M. & MARY L. REV. 571, 580-81 (1982) (discussing the refusal of a Georgia

judge to recognize a Maryland law permitting manumission).

32. See LUBET, supra note 31, at 8 (“Eventually the claims of the ‘higher law’ found their

way into courtrooms, as lawyers reflected the anger that was building in the North.”);

see also id. at 267-73, 294, 314, 325-26.

33. Cf. Kimberlé Crenshaw, The Court’s Denial of Racial Societal Debt, HUM. RTS., Dec. 2013, at

12, 13-14 (arguing that a race-neutral approach to discrimination allows judges to

“occupy[] the moral high ground of racial progress while relegating civil rights laws

and advocates to the ugly past”).

34. For more on the shared legal approach between Northern and Southern lawyers, see

AURA F. EDWARDS, THE PEOPLE AND THEIR PEACE: LEGAL CULTURE AND THE

TRANSFORMATION OF INEQUALITY IN THE POST-REVOLUTIONARY SOUTH 251-55 (2009).

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72 STAN. L. REV. 79 (2020)

adapting and applying these technical rules to the commercial and financial

matters of their clients.

Nineteenth-century lawyers learned the law in apprenticeships, from

treatises, and in law schools. A shared vision of law meant that Southern

lawyers could acquire the tools they needed to support slavery from

Northerners who opposed the institution. For example, even though teachers

at the Litchfield Law School, the most successful law school in early America,

opposed slavery, 30% of the school’s students came from the South, and most

returned to the South to work for slaveholders after they finished their

training.

Litchfield’s teachers devoted only a small fraction of their lectures

to what they called the law of slavery. In more than a thousand pages of notes,

a typical student notebook only contained a few pages under the heading of the

law of slavery.

This number paled in comparison to the hundreds of pages on

common law subjects from the rules of pleading to executors. Southern

students, however, found that lectures on writs of error, bills of exceptions,

evidence, chancery, apprentices, agents, sheriffs, and bailments could be readily

adapted for legal practice in a slave society.

Treatises, from which would-be lawyers who did not attend law school

learned the law, exhibited a similar focus on technical rules, treating slave cases

as part of venerable common law categories, rather than as part of the law of

slavery. Justice Story’s approach in his Commentaries on the Law of Bailments,

published in 1832, is typical. He analyzes bailment cases involving enslaved

people alongside those involving boats and other private property.

For a

35. See Simard, supra note 15, at 593-601 (describing the commercial work of a Georgia

lawyer); see also Justin Simard & Michael Halberstam, Lawyers as Trusted Agents in

Nineteenth-Century American Commerce: The Influence of Fiduciary Law and Norms on

Economic Development, 45 L

AW & SOC. INQ. (forthcoming 2020) (describing commercial

work of American lawyers).

36. See Simard, supra note 15, at 578-79. The school’s graduates made up nearly 5% of the

lawyers in the United States. See id. at 576

n.14.

37. Samuel Cheever’s two volumes of notes from 1812, for example, contain less than four

pages of notes related to the fundamental law of slavery. See 1 Samuel Cheever, Notes

on Lectures of Reeve and Gould 117-20 (1812) (on file with Harvard Law School); 2 id.

In contrast, he recorded extensive notes in other areas of the law. Other student

notebooks provide similar broad coverage. See, e.g., 1-4 William S. Andrews, Lectures

upon the Various Branches of Law by Reeves and Gould at the Law School in

Litchfield, Conn (1812-1813) (on file with Harvard Law School); 1-4 Caleb Stark,

Lectures of James Gould, Litchfield Law School (1824-1825) (on file with Harvard Law

School).

38. See Simard, supra note 15, at 578-82 (discussing Litchfield’s popularity among Southern

students).

39. JOSEPH STORY, COMMENTARIES ON THE LAW OF BAILMENTS WITH ILLUSTRATIONS FROM

THE CIVIL AND THE FOREIGN LAW (Cambridge, Hilliard & Brown 1832).

40. See id. §§ 214, 216-217.

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lawyer like Justice Story, these cases were about property, not slavery.

Because lawyers treated cases involving enslaved people as they did other cases,

treatises focused solely on the law of slavery were rare. The two most

prominent examples, George M. Stroud’s A Sketch of the Laws Relating to

Slavery

and Thomas R.R. Cobb’s An Inquiry into the Law of Negro Slavery in the

United States of America,

were designed not for use by lawyers but as political

tools. Although Stroud was a lawyer himself, he wrote his book to expose the

cruelties of slavery to a popular audience.

His treatise summarizes the law

that allowed people to be held in bondage, defined them as chattel, limited their

rights, defined acceptable punishments, and governed the social relations of

slavery.

Cobb, on the other hand, intended his book to be a pro-slavery

work.

It includes a lengthy discussion of the history of slavery as well as

analysis of legal justifications for slavery, fugitive slave law, the legal

disabilities of enslaved people, and the law of manumission.

41. At least in part, a focus on broader categories of law was probably motivated by

financial considerations. The nineteenth-century American bar was relatively small.

Schools like Litchfield and treatise writers like Justice Story needed to discuss national

rules if they wanted to attract enough students or sell enough books to make their

enterprise worthwhile. As the preface to one treatise put it, a treatise writer aimed to

“to render the book . . . equally valuable to all parts of our country.” T

APPING REEVE,

THE LAW OF BARON AND FEMME: OF PARENT AND CHILD, GUARDIAN AND WARD,

MASTER AND SERVANT, AND OF THE POWERS OF COURTS OF CHANCERY, at i (Burlington,

Chauncey Goodrich 2d ed. 1846). As Angela Fernandez has pointed out, Reeve was

criticized for failing to accurately depict the state of the common law. See Angela

Fernandez, Tapping Reeve, Coverture and America’s First Legal Treatise, in L

AW BOOKS IN

ACTION: ESSAYS ON THE ANGLO-AMERICAN LEGAL TREATISE 63, 66-67, 71-72 (Angela

Fernandez & Markus D. Dubber eds., 2012). Such criticisms demonstrate the practical

expectations of the readers of American treatises. For more on the national focus of

legal texts in America, see M.

H. HOEFLICH, LEGAL PUBLISHING IN ANTEBELLUM AMERICA

34, 177-78 (2010); E

RWIN C. SURRENCY, A HISTORY OF AMERICAN LAW PUBLISHING 30

(1990); and Daniel J. Hulsebosch, An Empire of Law: Chancellor Kent and the Revolution in

Books in the Early Republic, 60

ALA. L. REV. 377, 387 (2009).

42. GEORGE M. STROUD, A SKETCH OF THE LAWS RELATING TO SLAVERY IN THE SEVERAL

STATES OF THE UNITED STATES OF AMERICA (Philadelphia, Kimber & Sharpless 1827).

43. 1 THOMAS R.R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE UNITED

STATES OF AMERICA (Philadelphia, T. & J.W. Johnson & Co. 1858).

44. See, e.g., STROUD, supra note 42, at vii (“The very existence of slavery is calculated to

produce the worst effects on the tempers and morals of the master.”); see also 1 C

OBB,

supra note 39, at ix (“Stroud’s ‘Sketch of the Law of Slavery’ is and was intended only as

an Abolition pamphlet . . . .”).

45. See STROUD, supra note 42, at 179-80.

46. See BROPHY, supra note 31, at 227-53 (analyzing Cobb’s treatise as an example of pro-

slavery legal thought); Paul Finkelman, Thomas R.R. Cobb and the Law of Negro Slavery, 5

ROGER WILLIAMS U. L. REV. 75, 84-86 (1999) (same).

47. 1 COBB, supra note 43, at xi-xxii.

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72 STAN. L. REV. 79 (2020)

Lawyers did not need treatises or law school to teach them the law of

slavery because the general rules of private law could be easily adapted to

support slave commerce.

In practice, Southern lawyers adapted common law

forms and professional methods they learned as apprentices and law students

to an economy built on slavery. This is not to say that Southern judges

produced identical jurisprudence to their Northern counterparts. Historians

have noted that many Southern judges attempted to shape law to protect

slavery.

But more legal rules were the same, as lawyers turned slave cases into

common law questions. The dispute of whether an agent had authority to sell

and warrant an enslaved person became a matter of the law of principal and

agent.

The proper procedure for a sheriff seizing enslaved people became a

question of debt and commercial relations.

The “assertion of title” to enslaved

people became a “conversion” of property.

Cases like these relied on the same

kind of legal reasoning and legal categories—contracts, sheriff’s sales,

48. A third antebellum treatise was aimed at practitioners, and it adopted a broad

definition of slave law that reflected the way that slave-related questions seeped into

many Southern legal disputes. See generally J

ACOB D. WHEELER, A PRACTICAL TREATISE

ON THE LAW OF SLAVERY: BEING A COMPILATION OF ALL THE DECISIONS MADE ON THAT

SUBJECT, IN THE SEVERAL COURTS OF THE UNITED STATES AND STATE COURTS iii-iv

(Negro Univs. Press 1968) (1837) (covering cases related to the fundamental law of

slavery as well as those governing private law topics such as title, warranty, hiring,

mortgage, dower, division, remainder, and incapacity).

49. For example, Howard Schweber has charted Southern jurists’ reluctance to embrace

the movement toward modern negligence doctrine that eased the way for economic

innovation in the North. See H

OWARD SCHWEBER, THE CREATION OF AMERICAN

COMMON LAW, 1850-1860: TECHNOLOGY, POLITICS, AND THE CONSTRUCTION OF

CITIZENSHIP 2, 226-40, 260 (2004). Even the judges intent on promoting economic

development did so as a means to strengthen the Southern slave economy. See, e.g.,

IMOTHY S. HUEBNER, THE SOUTHERN JUDICIAL TRADITION: STATE JUDGES AND

SECTIONAL DISTINCTIVENESS, 1790-1890, at 81-87 (1999). Southern judges thus appear to

have demonstrated a commitment to “[s]ectional politics” and slavery that deeply

shaped their jurisprudence. See id. In short, Southern jurists “implemented the pro-

slavery ideas circulating in southern culture.” B

ROPHY, supra note 31, at xix.

50. See, e.g., Mosely v. Gordon, 16 Ga. 384, 396 (1854) (holding that the plaintiff’s agent had

the right to “sell and warrant the slave Daniel”).

51. See, e.g., Hopkins v. Burch, 3 Ga. 222, 224-25 (1847) (explaining the procedure for the

levy of “lands and negroes”).

52. See, e.g., Adams v. Mizell, 11 Ga. 106, 107-08 (1852) (holding a failure to return “negroes”

“constitute[d] conversion”); see also Murphy v. Wilkinson County, 11 Ga. 331, 334

(1852) (upholding an action by justices of an inferior court in collecting proceeds from

the sale of a runaway slave); Carter v. Buchannon, 3 Ga. 513, 520-21 (1847) (allowing

evidence of possession to establish the gift of an enslaved person); Broughton v.

Badgett, 1 Ga. 75, 76 (1846) (considering a warranty on an enslaved person who had

already been sold).

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72 STAN. L. REV. 79 (2020)

conversions—that Northern lawyers used in cases about nonhuman

property.

Translating slave commerce into common law supported the slave system.

Resolving basic questions of inheritance helped Southerners pass on the people

they owned to their heirs.

Mortgaging enslaved people allowed slaveholders

to capitalize on their human assets and created a market for collateralized slave

securities.

Regulating the practices of those who borrowed enslaved people

protected slaveowners who hired them out.

In addition to benefiting

slaveowners, such laws tragically harmed people held as slaves. In enforcing

the law of succession, courts forcibly subjected the enslaved to appraisal, sale,

and permanent separation from their family and friends.

The purchasing

power given to masters by slave mortgages increased their grip on political and

economic power and heightened the risks for familial separation through a

borrower’s purchase or a lender’s repossession.

Slave hiring forced enslaved

people into dangerous occupations and subjected them to abuse at the hands of

the people who hired them.

Northern cooperation with slave commerce

heightened the potential for harm. The common language adopted by

Southern lawyers allowed them to communicate with Northerners and to gain

financial support for slave commerce from the North.

Training and practice

prepared lawyers to collect debts for Northern clients who sold goods to the

53. See, e.g., Rollins v. Phelps, 5 Minn. 463, 466-68 (1861) (determining the liability of an

agent who sold logs); Lovejoy v. Jones, 30 N.H. 164, 169 (1855) (holding that the sale of

borrowed ox constituted conversion); Hale’s Appeal, 44 Pa. 438, 439 (1863) (outlining

the procedure for the proper sale of personal property in Pennsylvania).

54. See MORRIS, supra note 27, at 81-101 (discussing Southern inheritance law as applied to

slavery). But see B

ERNIE D. JONES, FATHERS OF CONSCIENCE: MIXED-RACE INHERITANCE IN

THE ANTEBELLUM SOUTH 1-20 (2009) (discussing the use of inheritance law to benefit

African Americans).

55. In a sampling of mortgages from 1812 through 1860, enslaved people accounted for 33%

of equity mortgage dollars in Virginia and 88% of equity mortgage dollars in Louisiana.

Martin, supra note 22, at 835, 838 graph set.2; see also R

ICHARD HOLCOMBE KILBOURNE,

JR., DEBT, INVESTMENT, SLAVES: CREDIT RELATIONS IN EAST FELICIANA PARISH,

LOUISIANA, 1825-1885, at 5 (1995) (“Slaves represented a huge store of highly liquid

wealth that ensured the financial stability and viability of planting operations even

after a succession of bad harvests, years of low prices, or both.”); Edward E. Baptist,

Toxic Debt, Liar Loans, Collateralized and Securitized Human Beings, and the Panic of 1837,

in C

APITALISM TAKES COMMAND: THE SOCIAL TRANSFORMATION OF NINETEENTH-

ENTURY AMERICA 69, 80-84 (Michael Zakim & Gary J. Kornblith eds., 2012) (discussing

the use of enslaved people as a source of credit).

56. MORRIS, supra note 27, at 140-43.

57. See id. at 82-83; see also FEDE, supra note 24, at 221-40.

58. See Martin, supra note 22, at 859-66.

59. See MORRIS, supra note 27, at 143-46.

60. See also COVER, supra note 15, at 199-200, for Robert Cover’s argument that a formal

approach to law discouraged judges from supporting the anti-slavery movement.

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72 STAN. L. REV. 79 (2020)

South on credit. Collection in turn facilitated lending that gave Southerners

access to desirable products from the North.

By selling these products,

Northerners who did not own enslaved people benefited from slavery and

linked themselves economically to its practice.

Even as sectional tensions

heightened in the 1850s, Northern judges cited Southern opinions as persuasive

authority.

Sectional tensions, however, eventually won out. The Civil War wrought

a revolutionary change, leading to the freedom of almost four million

American enslaved people.

Nonetheless, the commercial and legal

61. See Simard, supra note 15, at 597; see also, e.g., MAXWELL BLOOMFIELD, AMERICAN

LAWYERS IN A CHANGING SOCIETY, 1776-1876, at 276-79 (1976). For more on economic

links between Northerners and slavery, see Kathryn Boodry, August Belmont and the

World the Slaves Made, in S

LAVERY’S CAPITALISM: A NEW HISTORY OF AMERICAN

ECONOMIC DEVELOPMENT 163, 163-78 (Sven Beckert & Seth Rockman eds., 2016)

(arguing that the institution of slavery facilitated the development of investment

banking); and Seth Rockman, Negro Cloth: Mastering the Market for Slave Clothing in

Antebellum America, in A

MERICAN CAPITALISM: NEW HISTORIES 170, 170-94 (Sven Beckert

& Christine Desan eds., 2018) (describing the manufacture and marketing of textiles in

the North for sale to Southern planters).

62. See Rockman, supra note 61, at 170-94 (explaining the market for “negro cloth”

manufactured in the North); Simard, supra note 15, at 595-99 (detailing the role of

lawyers in debt collection on behalf of Northern creditors).

63. For example, Flint River Steamboat Co. v. Foster, 5 Ga. 194 (1848), a Georgia case about

trial by jury, was cited in an 1858 concurring opinion by a justice of the Supreme Court

of Michigan. Sears v. Cottrell, 5 Mich. 251, 259 (1858) (Christiancy, J., concurring)

(citing Flint River Steamboat, 5 Ga. 194). Similarly, the District Court for the District of

Wisconsin in 1850 cited Hightower v. Thornton, 8 Ga. 486 (1850), a Georgia case about the

equitable power of creditors to a corporation. Cleveland v. La Crosse & M.R. Co., 5 F.

Cas. 1030, 1031 (D. Wis. 1859) (No. 2887) (citing Hightower, 8 Ga. 493).

64. DAVID BRION DAVIS, INHUMAN BONDAGE: THE RISE AND FALL OF SLAVERY IN THE NEW

WORLD 298 (2006). For more on the revolutionary changes wrought by the Civil War,

the radical potential of Reconstruction, and its limitations, see id. at 297-322 (describing

the Civil War as a shocking “apocalyptic success”); W.E.B.

DU BOIS, BLACK

RECONSTRUCTION IN AMERICA: AN ESSAY TOWARD A HISTORY OF THE PART WHICH

BLACK FOLK PLAYED IN THE ATTEMPT TO RECONSTRUCT DEMOCRACY IN AMERICA, 1860-

1880, at 599-633 (Russell & Russell 1962) (1935) (analyzing white movement against

Reconstruction); E

RIC FONER, NOTHING BUT FREEDOM: EMANCIPATION AND ITS LEGACY

1, 39-40 (2007 prtg.) (defining Emancipation as “revolutionary”);

ERIC FONER,

RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION; 1863-1877, at 35-76, 564-601

(1988) [hereinafter F

ONER, RECONSTRUCTION] (discussing the meaning and

consequences of the Emancipation Proclamation and the failure of Reconstruction);

TEVEN HAHN, A NATION UNDER OUR FEET: BLACK POLITICAL STRUGGLES IN THE RURAL

SOUTH FROM SLAVERY TO THE GREAT MIGRATION, 62-264 (2003) (providing a history of

black politics during slavery and Reconstruction) [hereinafter H

AHN, A NATION];

STEVEN HAHN, THE POLITICAL WORLDS OF SLAVERY AND FREEDOM 55-97 (2009) (positing

that the “greatest slave rebellion” in modern history occurred during the Civil War);

and S

TEPHANIE MCCURRY, CONFEDERATE RECKONING: POWER AND POLITICS IN THE

CIVIL WAR SOUTH 9-10, 176-77, 214-17, 262, 308-09 (2010) (highlighting the role of

women and enslaved people in reshaping the Confederacy).

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72 STAN. L. REV. 79 (2020)

infrastructure that had supported slavery before its abolition continued to

operate. After the war, the same lawyers whose legal work had been critical to

maintaining slavery turned again to commercial work in a post-Emancipation

society.

American lawyers also continued to treat cases involving slave

commerce as if they had involved nonhuman property.

In 1871, in Osborn v.

Nicholson, the U.S. Supreme Court held that outstanding contracts for

payments for slave purchases were enforceable.

The Court reasoned that the

Constitution’s Contracts Clause prevented states from annulling agreements

for slaves and since contracts for slaves had been legal when entered into and

“enforced in the courts of every State of the Union,” they remained valid.

The

Court analogized the emancipation of a twenty-seven-year-old enslaved

person named Albert to “railroad scrip” that had been repudiated by its issuer.

The Court did address natural law arguments against slavery, but it dismissed

them: The “institution [of slavery] [had] existed largely under the authority of

the most enlightened nations of ancient and modern times,” and “the rights of

the owner have been regarded . . . as surrounded by the same sanctions and

covered by the same protection as other property.”

In any case, the Court

added, the rights of the plaintiff had vested before Emancipation.

The Court’s approach led it to categorize a case about a banned set of social

relations as a simple contracts case. By classifying the case as involving a

contract rather than a contract for the sale of a person, the Court avoided

confronting difficult questions about the meaning of the Civil War and

65. See Simard, supra note 15, at 601-02.

66. See Andrew Kull, The Enforceability After Emancipation of Debts Contracted for the Purchase

of Slaves, 70 C

HI.-KENT L. REV. 493, 493-95 (1994) (noting that courts continued to

enforce “debts for the purchase of slaves” after the Civil War).

67. 80 U.S. (13 Wall.) 654, 662-63 (1871). For extensive analysis of this case, see Diane J.

Klein, Paying Eliza: Comity, Contracts, and Critical Race Theory—19th Century Choice of

Law Doctrine and the Validation of Antebellum Contracts for the Purchase and Sale of Human

Beings, 20 N

AT’L BLACK L.J. 1, 30-41 (2006); and Kull, supra note 66, at 502-07. See also

Amanda Laury Kleintop, Life, Liberty, and Property in Slaves: White Mississippians Seek

“Just Compensation” for Their Freed Slaves in 1865, 39

SLAVERY & ABOLITION 383, 383-99

(2018) (detailing efforts by former slaveowners to obtain compensation for property

lost in Emancipation).

68. See Osborn, 80 U.S. (13 Wall.) at 656.

69. Id. at 655, 658-59. The Court also cited a case involving the freeing of “apprentice

laborers” by “the local governor and council” in British Guiana. Id. (citing

Mittelholzer v. Fullarton (1842) 115 Eng. Rep. 373). In that case, the Queen’s Bench had

analogized the freeing of the laborers to “goods destroyed by fire.” Mittelholzer, 115 Eng.

Rep. at 385 (opinion of Williams, J.); see also Osborn, 80 U.S. (13 Wall.) at 660

(analogizing the freeing of slaves to “leasehold premises . . . destroyed by fire” (citing

Holtzapffel v. Baker (1811) 34 Eng. Rep. 261)).

70. Osborn, 80 U.S. (13 Wall.) at 661.

71. Id. at 662.

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72 STAN. L. REV. 79 (2020)

Emancipation.

The Court did not seriously consider the possibility of

voiding the contract or involving its subject, the former enslaved person

Albert, in the disposition of a contract about him. Nor did the Court weigh the

broader social implications of its decision. By the 1870s, lawyers had

naturalized the law of slavery so completely that slavery’s place as a normal

part of the law was accepted even after more than 600,000 soldiers died in a war

over its future, and even after the U.S. government had ordered the

emancipation of enslaved people without compensation to their former

owners.

The world of slave commerce had been uprooted, but its legal legacy

remained part of U.S. law.

II. The Living Law of Slavery

Slavery’s legal legacy lives on today. A legal approach handed down from

their nineteenth-century predecessors has led most judges and litigants to

continue to treat slave cases as good law and to categorize such cases in

standard legal categories. Cases about hiring enslaved people remain bailments

cases. Cases about mortgages on human property remain mortgage cases. And

cases about inheriting enslaved people remain inheritance cases. In the past

thirty-five years judges have cited slave cases when reaching decisions related

to negligent damage to property,

adverse possession,

double jeopardy,

the

72. Cf. Klein, supra note 67, at 40 (“The judicial literary style often emphasizes the degree to

which prior cases and relevant doctrines ‘compel’ a certain outcome, in the face of

which the principled jurist cannot but comply.”).

73. Some prior emancipations had resulted in various forms of compensation to former

slaveowners. See, e.g., K

ATHLEEN MARY BUTLER, THE ECONOMICS OF EMANCIPATION:

JAMAICA & BARBADOS, 1823-1843, at xvi (1995) (“After prolonged negotiations the

British government officially eliminated slavery in 1834 and agreed to compensate all

owners of West Indian slaves.”). For a discussion on attempts by American slaveowners

to receive compensation after abolition, see generally Kleintop, supra note 67.

74. Tire Shredders, Inc. v. ERM-N. Cent., Inc., 15 S.W.3d 849, 853-54 (Tenn. Ct. App. 1999)

(citing Johnson v. Perry, 21 Tenn. (2 Hum.) 569, 571 (1841)). In Johnson, a slaveowner

sued for damages for injury to his personal property, an enslaved person. See 21 Tenn.

(2 Hum.) at 571.

75. Sherrill v. Souder, 325 S.W.3d 584, 600 (Tenn. 2010) (citing Porter v. Porter, 22 Tenn. (3

Hum.) 586, 589 (1842)). Porter involved a challenge to a bequest of “a negro boy named

Henry.” See 22 Tenn. (3 Hum.) at 586.

76. Grady v. Corbin, 495 U.S. 508, 534-35 (1990) (Scalia, J., dissenting) (citing State v.

Taylor, 18 S.C.L. (2 Bail.) 49, 50 (Ct. App. Law Eq. 1830)), overruled by United States v.

Dixon, 509 U.S. 688 (1993). In Taylor, the defendants, previously convicted for unlawful

trading with a slave, challenged their subsequent indictment for “receiving goods

stolen by a slave.” See 18 S.C.L. (2 Bail.) at 49-50.

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72 STAN. L. REV. 79 (2020)

conduct of executors,

contract interpretation,

jury discretion in forfeiture

cases,

dram-shop liability,

marriage,

estoppel,

capacity,

examination

of witnesses,

fraudulent conveyance,

statutory interpretation,

and many

other doctrines.

Because lawyers still rely on many of these same legal categories, slave

opinions easily supply case law for the twentieth and twenty-first centuries.

Take, for example, the 1863 Florida case Smith v. Hines.

Smith involved a

challenge by a widow to the actions of an administrator to a will. The

77. Madden v. Phelps, No. 1055-K, 1995 WL 606318, at *13 (Del. Ch. May 15 1995) (citing

Chase v. Lockerman, 11 G. & J. 185, 207 (Md. 1840)). Chase resulted from a challenge to a

will that devised enslaved persons. See 11 G. & J. at 190-91.

78. Bennett v. Inv’rs Title Ins. Co., 635 S.E.2d 660, 665 (S.C. Ct. App. 2006) (citing

Alexander v. Burnet, 39 S.C.L. (5 Rich.) 189, 196 (Ct. App. Law 1851)). Alexander

stemmed from a dispute about title to an enslaved person. See 39 S.C.L. (5 Rich) at 194-

96.

79. Medlock v. 1985 Ford F-150 Pick Up VIN 1FTDF15YGFNA22049, 417 S.E.2d 85, 86

(S.C. 1992) (citing State v. Simons, 29 S.C.L. (2 Speers) 761, 767-68 (Ct. Err. 1844)). In

Simons, the court held that forfeiture of enslaved people without a jury trial was a

violation of the South Carolina Constitution’s provision that “no free man . . . shall be

in any manner deprived of his life, liberty or property, but by the judgment of his

peers, or by the law of the land.” 29 S.C.L. (2 Speers) at 767-68 (quoting S.C.

CONST.

art. IX, § 2).

80. Warr v. JMGM Grp., LLC, 70 A.3d 347, 391 (Md. 2013) (Adkins, J., dissenting) (citing

Harrison v. Berkley, 32 S.C.L. (1 Strob.) 525, 550-51 (Ct. App. Law 1847)). Harrison

involved the death of an enslaved person after he consumed alcohol. See 32 S.C.L. (1

Strob.) at 546, 551.

81. Garrett v. Burris, 735 S.E.2d 414, 416 (N.C. Ct. App. 2012) (citing State v. Samuel, 19 N.C.

(2 Dev. & Bat.) 177 (1836)), aff’’d, 742 S.E.2d 803 (N.C. 2013). In Samuel, the Supreme

Court of North Carolina held that state law did not recognize marriages between

enslaved people. 19 N.C. (2 Dev. & Bat.) at 183.

82. Whitacre P’ship v. Biosignia, Inc., 591 S.E.2d 870, 891 (N.C. 2004) (citing Jones v. Sasser,

18 N.C. (1 Dev. & Bat.) 452 (1836)). In Jones, the court held that the plaintiff was not

estopped from bringing a challenge to the transfer of an enslaved person. Jones, 18 N.C.

(1 Dev. & Bat.) at 462-66.

83. State v. Hunt, 722 S.E.2d 484, 491 (N.C. 2012) (citing Clary’s Adm’rs v. Clary, 24 N.C. (2

Ired.) 78, 83-85 (1841)). Clary’s Administrators involved a bequest of enslaved people. 24

N.C. (2 Ired.) at 78.

84. State v. Woods, 723 S.W.2d 488, 510-11 (Mo. Ct. App. 1986) (citing Brown v. Burrus, 8

Mo. 26, 29-30 (1843)). In Brown, the defendants were alleged to have committed an act of

trespass “for seizing and taking away a negro girl slave, named Nancy.” 8 Mo. at 27.

85. Macon Bank & Tr. Co. v. Holland, 715 S.W.2d 347, 349 (Tenn. Ct. App. 1986) (citing

Floyd v. Goodwin, 16 Tenn. (8 Yer.) 484 (1835)). Floyd involved a dispute over “title . . .

to slaves.” 16 Tenn. (8 Yer.) at 485.

86. Harrison-Solomon v. State, 112 A.3d 408, 423-24 (Md. 2015) (citing Alexander v.

Worthington, 5 Md. 471, 485 (1854)). Alexander involved a devise of land and enslaved

people. 5 Md. at 494-96.

87. 10 Fla. 258 (1863).

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72 STAN. L. REV. 79 (2020)

administrator claimed to have purchased enslaved people from the decedent,

but the widow alleged that the sale was a ruse to deprive her of her dower.

The Supreme Court of Florida sided with the widow, finding that the enslaved

people had not been in the possession of the administrator until after her

husband’s death and that the sale was fraudulent.

A lawyer today would

likely classify this case, as LexisNexis does, into subject areas such as “Family

Law,” “Estate, Gift & Trust Law,” “Copyright Law,” and “Contracts Law.”

The

persistence of formalism in legal reasoning removes Smith from its slave

context, making it easier for lawyers to divorce its holding from slavery. The

Thirteenth Amendment, for example, does not appear in its subsequent history

on LexisNexis.

This approach helps to explain why the Florida District

Court of Appeal cited Smith v. Hines in 1990 for the proposition that “a husband

could dispose of his personal property during marriage.”

But this approach has cracks. Lexis’s abstract portrait of Smith necessarily

includes references to the slave context from which it arose. Two Lexis

Headnotes refer to the statute that governed inheritance when the case was

decided, which granted widows life estates in slaves.

And the first “Core

Term[]” listed for the case is “slaves.”

Moreover, the court’s analysis also

appears to have been influenced by the enslaved people on which the dispute

turned. Acknowledging the “contradictory and unsatisfactory” evidence

presented about two of the enslaved people, the Smith court attributed the

confusion to the “varied names so often given to negroes.”

Other cases, upon

further scrutiny, reveal similar limitations to treating slave cases as regular

precedent. The Court of Appeals of North Carolina, for example, cited an 1836

North Carolina case, State v. Samuel, for the proposition that “common law

marriages cannot be created in North Carolina.”

Samuel, however, involved

the question whether enslaved people, who were ineligible for marriage under

North Carolina law, could nonetheless avail themselves of the spousal

testimonial privilege by virtue of common law marriage.

Such a case was

88. See id. at 259-61.

89. Id. at 298-99.

90. Smith v. Hines, 1863 Fla. LEXIS 3, at HN1, HN7, HN19, HN21 (1863) (headnotes listed

by LexisNexis as of Jan. 4, 2020).

91. Id.

92. See Traub v. Zlatkiss, 559 So. 2d 443, 446 (Fla. Dist. Ct. App. 1990).

93. See Smith, 163 Fla. LEXIS at HN7, HN8.

94. Id. at Core Terms.

95. 10 Fla. 258, 298 (1863).

96. Garrett v. Burris, 735 S.E.2d 414, 416 (N.C. Ct. App. 2012) (citing State v. Samuel, 19 N.C.

(2 Dev. & Bat.) 177 (1836)).

97. See 19 N.C. (2 Dev. & Bat.) at 180.

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72 STAN. L. REV. 79 (2020)

deeply enmeshed in the context of a slave society. As part of its decision, the

Samuel court discussed the “incapacity of a slave to enter into . . . contracts” and

highlighted “the difficulty of giving legal validity to . . . marriage . . . without

curtailing the rights and powers of . . . masters.”

“[C]oncubinage,” the court

concluded, was “the relation, to which these people have ever been practically

restricted, and with which alone, perhaps, their condition is compatible.”

Isolating such cases from their slave context is therefore more difficult than

modern lawyers imagine.

When understood as a coherent category, the continued citation of slave

cases reveals the flaws of the myopic perspective of American lawyers. This

Part provides an overview of the modern citation of slave cases and examines

the cost of citing such cases.

A. Finding Slave Cases

Slave cases are frequently cited and can be found with normal legal

research tools.

100

My searches uncovered more than 300 examples of citations

to slave cases in the last thirty-five years. Roughly 80% of the cases I found that

cited slavery did not acknowledge a case’s slave context.

101

Slave cases appear

98. Id. at 182.

99. Id. at 183.

100. To capture the citation of slave cases in the past thirty-five years, I conducted extensive

electronic searches for judicial opinions that cited cases that involved chattel slavery.

Proceeding on a state-by-state basis, I first searched for explicit discussions of slavery

and slaves in opinions authored in the last thirty-five years. I excluded cases that used

slavery as an analogy or that discussed slavery outside of the context of American

chattel slavery. I therefore did not include cases dealing with “sex slavery,” “white

slavery,” and the like in my search. I also excluded cases in which litigants compared

their current status to that of a slave. Because extensive scholarship already exists on

the Reconstruction Amendments, and because lawyers tend to recognize these cases as

having a special relationship to civil rights, I also excluded cases interpreting or citing

the Thirteenth, Fourteenth, and Fifteenth Amendments from my analysis. After

finishing my search for modern cases that explicitly mentioned slavery, I searched for

cases that cited slave-related cases but that did not acknowledge or discuss the slave-

based context from which these cases grew. To find these cases, I searched first for

opinions that discussed slavery before the ratification of the Thirteenth Amendment. I

sorted these cases by the number of times they were cited and then found citations

from courts in the last thirty-five years. I reviewed these modern cases to understand

how and why judges decided to cite slave cases. Because my methodology relies on

direct citation, it only begins to illustrate the significant influence of slavery on

modern law. For every case that cites a slave-related case, there are many more that are

once removed; that is, they cite cases that cite slave cases. Moreover, there may be

many more unpublished opinions that cite slave cases and that are not accessible on

Westlaw or LexisNexis.

101. See Court Cases, CITING SLAVERY PROJECT, https://perma.cc/2V36-Q6XW (archived

Jan. 12, 2020).

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72 STAN. L. REV. 79 (2020)

as part of block quotations, string cites, footnotes, and every other form of

citation. In approximately 20% of cases I found that cited slavery, judges did

acknowledge the slave context of the holdings on which they relied, in forms

ranging from brief mentions in footnotes to multiparagraph discussions.

102

Discussion of a slave case is sometimes simple as that in In re Hockaday, a 1994

case from the Bankruptcy Court for the Middle District of Tennessee.

103

that case, which raised the question of whether a prepetition judgment lien had

been properly filed, the court used a slave case as part of a “see, e.g.,” string

citation that included four other cases from the nineteenth century.

104

The

description of the case was a simple parenthetical, “(levy of execution upon a

slave),” and there was no other discussion of the case or the significance of its

slave context.

105

A footnote in an Alabama Supreme Court case McCollum v.

Towns provides another example of a brief acknowledgment of slave

context.

106

In the footnote, the court described Wilson’s Heirs v. Wilson’s

Administrator, decided by the Alabama Supreme Court in 1857, as a case “where

the court refused to allow compensation to the fiduciary in the distribution of

slaves.”

107

More extensive engagement with slave cases is much less

102. See id.

103. 169 B.R. 640 (Bankr. M.D. Tenn. 1994).

104. Id. at 642.

105. Id. (citing Ethridge v. Edwards, 31 Tenn. (1 Swan) 426 (1852)). For other cases that cite

cases in a parenthetical, see, for example, Grady v. Corbin, 495 U.S. 508, 534-35 (1990)

(Scalia, J., dissenting) (citing State v. Taylor, 18 S.C.L. (2 Bail.) 49, 50 (Ct. App. Law Eq.

1830), and explaining in a parenthetical that “conviction of ‘trading with a slave’ does

not bar prosecution for receiving goods stolen by enslaved person ‘founded on the

same act’; ‘two distinct offences were committed’ because neither offense was

necessarily included within the other”), overruled by United States v. Dixon, 509 U.S. 688

(1993); McCall v. State, 501 So. 2d 496, 503 (Ala. Crim. App. 1986) (citing Spence v. State,

17 Ala. 192, 197-98 (1850), and explaining in a parenthetical that “evidence that master

had always been in the habit of tying his slaves when they were charged with any

matter, and whipping them till they confessed the truth, and that he had frequently

treated the defendant the same way was admissible without the ‘least doubt’ to show

that the defendant had reasonable ground to apprehend from his former treatment that

he was to be whipped and have confessions extorted from him, as the master was in the

habit of doing”); Hampton v. State, 455 So. 2d 149, 151 (Ala. Crim. App. 1984) (noting

that Alabama courts “have traditionally and consistently held that a single act resulting

in death or injury to multiple victims constitutes a single criminal offense” and citing

Ben v. State, 22 Ala. 9 (1853), with a parenthetical explanation that “[i]ndictment

charging defendant-slave with administering poison to white persons was not

duplicitous and charged only one offense”), abrogated by McKinney v. State, 511 So. 2d

220 (Ala. 1987).

106. 435 So. 2d 17, 19 n.1 (Ala. 1983).

107. Id. at 19 (citing Wilson’s Heirs v. Wilson’s Adm’r, 30 Ala. 670 (1857)). For other

examples of citation in footnotes, see, for example, Evanston Ins. Co. v. Premium

Assignment Corp., 935 F. Supp. 2d 1300, 1307 n.2 (M.D. Fla. 2013) (citing McGriff v.

Porter, 5 Fla. 373, 379 (1853), a case in which the Supreme Court of Florida held that the

footnote continued on next page

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common.

108

For the most part, American judges treat slave cases like other

precedent.

B. Normalizing Slave Law

Closer examination of citation to slave cases reveals the flaws of a legal

perspective that discourages judges from deeper analysis of their use of slave

precedent. Smith v. Peoples Bank, a 1992 case from Tennessee, provides a

powerful example of the problems inherent in citing slavery.

109

Smith is a

bailments case, brought by safety deposit holders against a bank that they

alleged had taken property they had stored in their safety deposit boxes.

110

The

bank argued that the plaintiffs’ suit was barred by an exculpatory provision on

the safe deposit cards they had signed.

111

The court ultimately sided in favor of

the plaintiffs, citing a number of cases that provide exceptions to the “general

rule . . . that exculpatory clauses are valid.”

112

One of these cases was Memphis &

Charleston Railroad v. Jones, which, as the Smith court characterized it, stood for

the proposition that “a railroad’s liability for willful or gross negligence in

running over a slave asleep on the track cannot be contracted away.”

113

Although the Smith court mentioned the slave context of the case it cited, its

use of Memphis suggests that the court saw the case no differently from other

precedent; from a legal perspective, Memphis appeared to provide ideal support

for the Smith court’s conclusion.

114

In broader context, however, relying on a case based in human bondage

proves more complicated than a narrow focus on the holding would suggest.

Memphis grew out of a contract by a slaveowner to hire, as the Memphis court

decedent had authority “to dispose of an interest and property in the slaves specified”);

Edwards v. Van De Rostyne, 245 S.W.3d 797, 802 n.6 (Ky. Ct. App. 2008) (citing

Graham’s Ex’r v. Sam, 46 Ky. (7 B. Mon.) 403, 405 (1847), as the “first appearance” of “in

forma pauperis” in Kentucky law).

108. See, e.g., Carr v. Int’l Ref. & Mfg. Co., 13 So. 3d 947, 962 n.8 (Ala. 2009) (Murdock, J.,

dissenting) (providing extensive analysis of Bell’s Administrator v. Troy, 35 Ala. 184, 202

(1859), and recognizing that Bell’s Administrator involved a “defendant’s slave”); Tire

Shredders, Inc. v. ERM-N. Cent., Inc., 15 S.W.3d 849, 853-54 (Tenn. Ct. App. 1999)

(presenting the holding of Johnson v. Perry, 21 Tenn. (2 Hum.) 569 (1841), and discussing

the recovery available for injury to the “plaintiff’s slave”).

109. Smith v. Peoples Bank of Elk Valley, No. 01A01-9111-CV-00421, 1992 WL 117061

(Tenn. Ct. App. June 3, 1992).

110. See id. at *1-2.

111. See id. at *3.

112. See id.

113. Id. (citing Memphis & Charleston R.R. v. Jones, 39 Tenn. (2 Head) 517 (1859)).

114. See Memphis & Charleston R.R., 39 Tenn. (2 Head) at 519 (concluding that the exculpatory

clause was invalid “against [the defendant’s] own wilful [sic] wrong, or culpable

negligence”).

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100

put it, “two negro boys” to the railroad for “twenty-three dollars per month,

for each.”

115

The contract signed by the slaveowner said that the railroad

“assum[ed] no responsibility for damages from accident, or any cause

whatever.”

116

In the course of his work on the railroad, one of the hired men

had been crushed to death when a fellow railroad worker failed to stop the

train because he mistook his body for “a carpet-sack, or an old bag of

clothes.”

117

When the slaveowner attempted to sue the railroad for the value of

the person he owned, the railroad argued that it could not be held accountable,

even for willful misconduct or gross negligence, because the contract

exempted it from liability.

118

Memphis was grounded in white supremacy. Not only was the enslaved

person treated like property, he was never named and was referred to as a

“boy.”

119

Moreover, despite its irrelevance to the case, the court also blamed

him for his own death, accusing him of being “intoxicated.”

120

The court’s

opinion reinforced racial stereotypes, even though they had no bearing on the

case.

121

For the Smith court to cite Memphis without considering its racist

language and reasoning is to suggest that such language and reasoning deserve

no explanation. The offensiveness of this language is reinforced by its official

origin in an opinion that apparently still has the force of law in some respects.

The Memphis court’s white supremacist reasoning may have also

influenced its legal holding. If the enslaved person who was killed by the train

had been considered an employee rather than a hired slave, he would have

likely been classified by the Tennessee court as a “fellow servant” and therefore

have been ineligible to receive compensation for injury caused by a fellow

worker’s conduct.

122

In this context, the railroad’s interpretation of the

exculpatory clause is not as outlandish as the court suggests; if workers were

regularly uncompensated for their injuries, it does not seem unreasonable for

115. Id. at 517-18.

116. Id. at 518.

117. Id.

118. Id. at 519.

119. Id. at 518-19.

120. See id. at 518.

121. See WALTER JOHNSON, SOUL BY SOUL: LIFE INSIDE THE ANTEBELLUM SLAVE MARKET 146

(1999) (“In southern courtrooms . . . slaves’ misbehavior was often attributed to an

inward disposition of character, which meant that there was something invariably,

inevitably, perhaps biologically ‘bad’ about the slave.”); see also I

BRAM X. KENDI,

STAMPED FROM THE BEGINNING: THE DEFINITIVE HISTORY OF RACIST IDEAS IN AMERICA

458 (2016) (tracing the roots of modern stereotypes about African Americans to

“[s]laveholders’ racist theory of African Americans as more dependent”).

122. See, e.g., Fox v. Sandford, 36 Tenn. (4 Sneed) 36, 47 (1856) (applying the fellow servant

rule).

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101

slaveholders to be treated similarly for the injuries to their human property.

Southern courts, however, refused to extend the fellow servant rule to

enslaved people hired out by slaveowners.

123

As historian Thomas Morris has

illustrated, treating enslaved people like property made it difficult for courts to

view “the thing as a potential coworker.”

124

Perhaps the court would have still

reached a similar holding if the case had involved a horse or piece of machinery

rather than a person, but its potentially motivated reasoning makes its

conclusion suspect. Memphis, in other words, provides poorer support for the

Smith court’s holding than its citation lets on.

The Alabama Supreme Court’s opinion in Spain v. Brown & Williamson

Tobacco Corp. provides another example of the issues inherent in citing slave

cases.

125

Spain relies on a quotation from McArthur v. Carrie’s Administrator to

explain the rationale behind Alabama’s rule of repose.

126

According to the

McArthur court, as quoted by the Alabama Supreme Court in 2003, “a prima-

facie presumption is raised, whenever there is satisfactory proof of twenty

years uninterrupted, adverse enjoyment and possession [of slaves].”

127

Although “use” and “enjoyment” are legal terms of art,

128

their application to

people is nevertheless striking, especially in the context of slavery. Historians

have detailed the manifold ways in which a slaveowner’s enjoyment and

possession manifested itself. Slaveholders bought, sold, overworked, beat,

raped, and killed enslaved people, often without legal consequence.

129

That the

123. See MORRIS, supra note 27, at 147-158; see also Paul Finkelman, Slaves as Fellow Servants:

Ideology, Law, and Industrialization, 31 A

M. J. LEGAL HIST. 269, 269-305 (1987).

124. See MORRIS, supra note 27, at 150.

125. 872 So. 2d 101 (Ala. 2003).

126. Id. at 129 n.5 (Johnston, J., concurring in part, concurring specially in part, and

dissenting in part) (quoting McArthur v. Carrie’s Adm’r, 32 Ala. 75, 88-89, 94 (1858)).

127. Id. (alteration in original) (quoting McArthur, 32 Ala. at 88-89, 94).

128. See Use, BLACK’S LAW DICTIONARY (11th ed. 2019); Enjoyment, BLACK’S LAW DICTIONARY

(11th ed. 2019).

129. For discussion of the treatment of enslaved people, see EDWARD E. BAPTIST, THE HALF

HAS NEVER BEEN TOLD: SLAVERY AND THE MAKING OF AMERICAN CAPITALISM 111-44

(2014) (discussing cruel tactics used to improve the productivity of enslaved people);

RA BERLIN, MANY THOUSANDS GONE: THE FIRST TWO CENTURIES OF SLAVERY IN NORTH

AMERICA 97-98 (1998) (explaining control exerted by masters); HAHN, A NATION, supra

note 64, at 16 (“Slavery, quite simply, was a system of extreme personal domination in

which a slave had no relationship that achieved legal sanction or recognition other

than with the master, or with someone specifically designated by the master.”); C

AITLIN

ROSENTHAL, ACCOUNTING FOR SLAVERY: MASTERS AND MANAGEMENT 2 (2018) (“The

portrait that emerges from plantation records is that of a society where precise

management and violence went hand in hand.”); K

ENNETH M. STAMPP, THE PECULIAR

INSTITUTION: SLAVERY IN THE ANTE-BELLUM SOUTH 156-91 (1967) (describing violence

in the institution of slavery).

For the lack of legal repercussions, see J

OHNSON, supra note 121, at 118-61 (describing

the conditions of slave markets); M

ORRIS, supra note 27, at 161-208 (observing that

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102

court relied on a case about human property for such a banal point emphasizes

the court system’s understanding of such cases as uncontroversial law.

130

The dignitary harms deepen when read in the context of McArthur, which

arose out of a dispute over an enslaved person named Fanny and her four

children.

131

Because their ownership was disputed, a local sheriff had seized

Fanny and her family and placed them in an Alabama county jail in 1853.

132

Fanny and her family had already faced difficulties. After Fanny’s owner died,

her owner’s widow sold Fanny in 1829 or 1830 to settle the decedent’s debts and

purchase cattle.

133

Such a sale subjected Fanny to the whims and desires of

another enslaver. He kept her in Hancock County, Mississippi, for twenty-

three years where she worked for him and raised four children.

134

In 1853, just

a few months before she and her family were put into jail, they were moved

more than 300 miles away to Tallapoosa County, Alabama, by her owner’s

son,

135

likely tearing them from familial and friendship ties in Mississippi.

136

Fanny’s part in this story was only tangentially relevant to the court’s holding

because she and her family were property, but citation to this case normalizes

the treatment she and her family endured as legally defined property.

137

These

“[a]lmost all homicides of slaves, from the colonial period to the end of slavery, ended

in acquittals” and concluding that “[l]ittle evidence exists that law . . . amounted to

much protection for slaves against the nonfatal abuse inflicted on them by their

masters”);

Peter W. Bardaglio, Rape and the Law in the Old South: “Calculated to Excite

Indignation in Every Heart,” 60 J.S.

HIST. 749, 757 (1994) (“When a master raped one of his

female slaves, the law did not hold him accountable for the attack.”).

130. Courts, in contrast, are careful to explain when cases have been vacated, even for

unrelated reasons. See, e.g., Cochran v. Ward, 935 So. 2d 1169, 1176 (Ala. 2006) (citing

Sperau v. Ford Motor Co., 674 So. 2d 24 (Ala. 1995), and noting in its citation that Sperau

was “vacated on other grounds” by the U.S. Supreme Court and then remanded to the

Supreme Court of Alabama).

131. See McArthur, 32 Ala. at 76.

132. Id. at 77-79.

133. Id. at 79-80.

134. Id. at 76, 79.

135. Id. at 79.

136. Being sold often involved a dehumanizing experience at a slave auction. See JOHNSON,

supra note 121, at 163 (“[S]laves in the market became accustomed to presenting

themselves as commodities.”). It also sometimes meant being torn away from a

network of friends and family who helped to ameliorate the harms of slavery. See

AHN, A NATION, supra note 64, at 17-19; DYLAN C. PENNINGROTH, THE CLAIMS OF

KINFOLK: AFRICAN AMERICAN PROPERTY AND COMMUNITY IN THE NINETEENTH-

ENTURY SOUTH 79-109 (2003) (describing the benefits of kinship networks).

137. The decision’s language emphasized Fanny and her family’s status as property,

repeatedly referring to them in such terms, and only using Fanny’s name when

describing her as “the slave Fanny.” See McArthur, 32 Ala. at 79-80, 86, 88. Fanny was also

excluded from participating in the trial because of rules that barred her testimony,

even though she was a witness to the sale. See 1833 Ala. Laws 391, § 4 (“No slave shall be

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103

brutal facts are deemed irrelevant to the court’s decision to cite such precedent

with approval.

Even if the dignitary harms of citing McArthur are discounted, the case

offers weak precedential support for cases not related to slavery. The McArthur

court carefully avoided making a broad statement of the law, limiting its

holding to “cases like the present,” and to “property situated substantially as

this is.”

138

It noted that “the property [i.e., Fanny and her children] remained in

the neighborhood,”

139

giving her former owner the opportunity to have

contested the transaction earlier. The opinion suggests that the possession of

enslaved people might have been more noticeable than that of other types of

property and therefore provides relatively weak precedential support for the

Spain court. By failing to fully address the context in which McArthur was

decided, the modern Alabama Supreme Court seems to have underestimated

the case’s legal limitations as precedent for non-slave cases.

Tire Shredders, Inc. v. ERM-North Central, Inc., a 1999 case decided by the

Court of Appeals of Tennessee, further illustrates the harms of citing slave

cases.

140

In discussing the damages allowed for the negligent destruction of a

tire shredding machine owned by the plaintiff, the court cited the “first”

Tennessee case “discussing the types of damages that are available when

negligent conduct results in injury to personal property.”

141

Unlike the tire

shredding machinery at issue in the case before it, Johnson v. Perry involved

human property.

142

In the 1999 recounting, the ruling on damages for personal

property arose out of “an altercation” between the defendants and “the

plaintiff’s slave,” in which “the slave fell and broke his leg” in attempt to

“escape from the defendants.”

143

For the Tire Shredders court, the underlying

facts of the case were relatively unimportant. More important was the clear

way that the opinion in Johnson had laid out the damages available for harm to

“personal property.”

144

After summarizing the Johnson court’s holding, the

opinion for the Court of Appeals moved on to other relevant precedent—a case

involving damage to a car.

145

admitted a witness against any person, in any matter, cause, or thing whatsoever, civil

or criminal, except in criminal cases, in which the evidence of one slave shall be

admitted for or against another slave.”); see also M

ORRIS, supra note 27, at 229-37.

138. 32 Ala. at 94-95.

139. Id. at 95-96.

140. 15 S.W.3d 849 (Tenn. Ct. App. 1999).

141. Id. at 851-52, 853 (citing Johnson v. Perry, 21 Tenn. (2 Hum.) 569, 571-72 (1841)).

142. See 21 Tenn. (2 Hum.) at 571.

143. Tire Shredders, 15 S.W.3d at 853-54 (citing Johnson, 21 Tenn. (2 Hum.) at 571-72).

144. See id. (discussing the Johnson court’s holding at length).

145. Id. at 854 (citing Perkins v. Brown, 177 S.W. 1158 (Tenn. 1915)).

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Such a formalist treatment ignores the harrowing experience of the

“property” in slavery. The confrontation that led to the injury of David, the

enslaved person who was the subject of the Johnson case, began with a “verbal

altercation . . . between the slave and one of the defendants.”

146

In a slave

society dependent on black subordination, threats to white authority were

taken seriously.

147

As reported by the court in Johnson, the defendants “seized

the slave, and were attempting to tie him for the purpose of inflicting

chastisement on him.”

148

Such “chastisement” in the slave South could have

involved a serious threat to well-being or even life.

149

It is likely that David

recognized the danger. He “made his escape,” risking a leap from “a precipice

about four feet high” to get away from his pursuers and in the process severely

injured his leg.

150

His ordeal did not end there. A doctor “of not much skill” was

unable to heal his injuries.

151

After three or four months of little improvement

(and likely serious pain), a second doctor diagnosed David with a broken

knee.

152

The doctor subsequently removed “several pieces of broken bone”

without the aid of modern anesthesia.

153

The injury, however, appeared to

have persisted, and David was forced to rely on crutches to walk.

154

His

condition was severe enough for the jury to award his owner $800, which was

somewhere between 80% and 100% of what an enslaved person like him would

have sold for on the market before the injury.

155

The Tennessee Supreme

Court offered David no sympathy. They criticized him for not fleeing in a safer

direction—comparing him to a mare who had been frightened by dogs—and

spoke of him like they would have of an animal, writing “if a man’s property

has been injured, and after the commencement of the suit it dies, proof of the

146. Johnson, 21 Tenn. (2 Hum.) at 569.

147. Cf. Andrew Fede, Legitimized Violent Slave Abuse in the American South, 1619-1865: A Case

Study of Law and Social Change in Six Southern States, 29 A

M. J. LEGAL HIST. 93, 105-06

(1985) (referring to “the struggle to maintain slave discipline”).

148. 21 Tenn. (2 Hum.) at 569.

149. See Fede, supra note 147, at 105-06.

150. Johnson, 21 Tenn. (2 Hum.) at 569.

151. Id.

152. Id.

153. Id. William T.G. Morton introduced anesthesia to surgical practice in 1846. See JULIE M.

FENSTER, ETHER DAY: THE STRANGE TALE OF AMERICA’S GREATEST MEDICAL DISCOVERY

AND THE HAUNTED MEN WHO MADE IT 5-6, 240-41 (2001).

154. Johnson, 21 Tenn. (2 Hum.) at 570.

155. Id. at 569-70, 574. The price of a “prime male field hand” in 1840 was between $750 and

$1000. See Robert Evans, Jr., The Economics of American Negro Slavery, 1830-1860, in

SPECTS OF LABOR ECONOMICS: A CONFERENCE OF THE UNIVERSITIES-NATIONAL BUREAU

COMMITTEE FOR ECONOMIC RESEARCH 185, 199 tbl.8 (Nat’l Bureau of Econ. Research ed.,

1962); see also Johnson, 21 Tenn. (2 Hum.) at 569-70 (describing testimony from a

physician that “the slave, previous to the injury, was worth from $800 to $1,000”).

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fact may be received to aggravate the damages.”

156

Because David was personal

property, he could be threatened, be chased, and suffer serious injury, but

compensation for his suffering was only available to his owner.

Johnson provides poor precedent not only because it treats a person as

property, but also because treating a person as property complicates the case’s

holding, especially for those unfamiliar with the context of slavery. The Tire

Shredders court ultimately applied a rule different from that in Johnson,

allowing for loss of use damages in Tire Shredders because the tire shredding

machinery was “commercial property” and was therefore “unlike other types

of personal property that can be replaced within a relatively short period of

time.”

157

At the time Johnson was decided, however, an enslaved person

arguably fit into the same category as a difficult-to-replace piece of commercial

property. The Tennessee Court of Appeals missed this similarity because it did

not consider the broader slave context of the case it cited.

The dignitary and legal harms inherent in citing slave cases also present

themselves in cases of indirect citation. In re Deeb, a 1985 case from the

Bankruptcy Court for the Northern District of Alabama, provides a

particularly egregious example.

158

In that case, the court faced the question of

whether foals born of horses subject to a creditor’s claim were also subject to

that claim.

159

To answer that question, the court looked to Meyer v. Cook, in

which the Alabama Supreme Court established the rule that “the offspring, or

increase of female animals, when they come into visible existence and are

endowed with independent life, rest under the same title or ownership their

dam was subject to, at the time they were brought forth.”

160

The lengthy block

quote of Meyer in In re Deeb included citations to a number of cases, including

the U.S. Supreme Court’s 1851 decision in Fowler v. Merrill.

161

Unlike the other

cases that involved cattle, Fowler involved a dispute over “certain negroes” who

had served as the collateral for their owner’s mortgage.

162

The U.S. Supreme

Court’s opinion treated the enslaved children in dispute in Fowler as it would

have animals.

163

By citing Fowler, the Meyer court adopted the same reasoning,

156. Johnson, 21 Tenn. (2 Hum.) at 572.

157. Tire Shredders, Inc. v. ERM-N. Cent., Inc., 15 S.W.3d 849, 856-57 (Tenn. Ct. App. 1999).

158. 47 B.R. 848 (Bankr. N.D. Ala. 1985).

159. Id. at 850-51.

160. Id. at 851 (quoting Meyer v. Cook, 5 So. 147, 148 (Ala. 1888)).

161. Id.

162. Fowler v. Merrill, 52 U.S. (11 How.) 375, 392 (1850).

163. The Supreme Court relied on both slave and non-slave authorities to support its

conclusion. See id. at 396 (citing 2 W

ILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND 404; and Backhouse v. Jett, 2 F. Cas. 316 (C.C.D. Va. 1821) (No. 710)).

Blackstone based his conclusion on “the growth of vegetables, the pregnancy of

animals, the embroidering of cloth, [and] the conversion of wood or metal into vessels

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directly analogizing the children of an enslaved black woman to the offspring

of cattle. Although the indirect citation slightly distances the Bankruptcy

Court for the Northern District of Alabama from this slave case, the court still

treated the case as good law and implicitly adopted the Meyer court’s reasoning.

Even in 1985, the court deemed the differences between the children of the

enslaved and the offspring of animals inconsequential to Alabama law.

Although the legal limitations of such citations are less clear than the dignitary

harms, an analogy that relies on similarities between humans and animals

offers significantly less persuasive power than one based solely on animals.

Smith, Spain, Tire-Shredders, and In re Deeb provide just four examples of

how deeply slave cases are embedded in the brutal slave regime from which

they arose. These modern cases suggest how typical citation practices ignore

and obscure the brutality of that regime. This is a common consequence of the

citation of slavery. Courts cite cases about mortgages on people for basic

propositions about contemporary lending law.

164

They cite cases about the

forcible transport of enslaved people for routine choice-of-law rules.

165

They

rely on cases about the sale of the enslaved to explain the requirements of

deeds.

166

They cite cases in which enslaved people served as collateral in debts

to illustrate how property may be permissibly seized.

167

They cite the transfer

of enslaved people from parent to child to illustrate basic rules for interpreting

wills.

168

They cite cases where courts have sanctioned lawyers for not properly

claiming human property to highlight a lawyer’s duty to pursue his client’s

cause at all stages of litigation.

169

They cite cases where bank’s assigned away

and utensils.” BLACKSTONE, supra at 404. Backhouse involved a “number of slaves.” 2 F.

Cas. at 318.

164. See, e.g., In re Beene, 354 B.R. 856, 860 (Bankr. W.D. Ark. 2006) (internal citation to

Main v. Alexander, 9 Ark. 112, 117 (1848)). Main involved a mortgage on “a negro girl

named Minerva.” 9 Ark. at 113.

165. See, e.g., Blount v. Boston, 718 A.2d 1111, 1117 (Md. 1998) (per curiam) (quoting

Ringgold v. Barley, 5 Md. 186, 193 (1853)). In Ringgold, the court determined the

domicile of an enslaved person for the purpose of a freedom suit. 5 Md. at 192-93.

166. See, e.g., CK Regalia, LLC v. Thornton, 159 So. 3d 358, 360 (Fla. Dist. Ct. App. 2015)

(citing Carter v. Bennett, 6 Fla. 214 (1855)). In Carter, the court discussed liens placed on

enslaved persons. 6 Fla. at 246.

167. See, e.g., France v. Am. Bank, 505 So. 2d 1175, 1178 (La. Ct. App. 1987) (citing Pepper v.

Dunlap, 16 La. 163 (1840)). In Pepper, the court discussed a mortgage on land and

eighteen enslaved persons. 16 La. at 164.

168. See, e.g., In re Estate of McCreath, 240 P.3d 413, 420 (Colo. App. 2009) (internal citation

to Wall v. Wall, 30 Miss. 91 (1855)). In Wall, the court considered whether an

instrument facially labeled a deed and conveying enslaved persons and other property

could be construed as a will. 30 Miss. at 91-92, 96.

169. See, e.g., Johnson v. Coleman, 627 S.W.2d 564, 566 (Ark. App. 1982) (citing Pennington’s

Ex’rs v. Yell, 11 Ark. 212 (1850)). In Yell, the court discussed a sheriff’s levy and sale of “a

negro boy by the name of Dick, about seven years old.” 11 Ark. at 216.

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107

enslaved persons in their possession to avoid attachment by creditors.

170

They

cite cases for legal propositions linked to the violence of the slave system

(enslaved people whipped to death)

171

and the desperation of the enslaved

(enslaved people drinking themselves to death).

172

They cite habeas cases, not

for enslaved people seeking freedom, but for masters seeking the return of

their property.

173

And they cite cases about the theft of enslaved people for

basic evidentiary propositions.

174

C. Harms of Citing Slavery

Analysis of these cases suggests that citing slavery creates both legal and

dignitary harms. These harms are hidden by a judicial approach that does not

see “slave case” as a relevant category of analysis. Slave cases, however, pose a

unique set of legal and dignitary harms. Either set of harms provides sufficient

reason to reconsider the treatment of slave cases as normal precedent.

1. Legal problems

Citing slavery creates three major potential legal problems. First, slave

cases provide unclear precedent. By treating people as property, slave cases

sometimes blur the lines between conventional legal categories.

175

170. See, e.g., Johnson v. Kan. City S., 224 F.R.D. 382, 384-85 (S.D. Miss. 2004) (citing Arthur v.

Commercial & R.R. Bank of Vicksburg, 17 Miss. (9 S. & M.) 394, 430-31, 432-34 (1848)),

aff’d sub nom. Johnson v. Kan. City S. Rys. Co., 208 F. App’x 292 (5th Cir. 2006). Arthur

involved a bank that owned enslaved people. 17 Miss. (9 S. & M.) at 397-400.

171. See, e.g., United States v. Allen, 755 A.2d 402, 410 (D.C. 2000) (internal citation to

Jordan v. State, 22 Ga. 545, 558-59 (1857)). Jordan was a criminal case brought against an

overseer who murdered an enslaved person. 22 Ga. at 548-49.

172. See, e.g., Godfrey v. Bos. Old Colony Ins. Co., 718 So. 2d 441, 444-45 (La. Ct. App. 1998)

(citing Harrison v. Berkley, 32 S.C.L. (1 Strob.) 525 (Ct. App. 1847)). In Harrison, the

court upheld a jury verdict against a dram shop for the death of an enslaved person

who died of exposure after becoming intoxicated. 32 S.C.L. (1 Strob.) at 525-28, 551.

173. See, e.g., Wlodarz v. State, 361 S.W.3d 490, 496-97 (Tenn. 2012) (citing Ex parte Toney, 11

Mo. 661 (1848) (per curiam)), abrogated by Frazier v. State, 495 S.W.3d 246 (Tenn. 2016).

Ex parte Toney involved a habeas petition by a slaveholder for the return of an enslaved

person. 11 Mo. at 662.

174. See, e.g., State v. Woods, 723 S.W.2d 488, 510-11 (Mo. Ct. App. 1986) (citing Brown v.

Burrus, 8 Mo. 26 (1843)). Brown involved the theft of an enslaved girl. 8 Mo. at 27.

175. See ARIELA J. GROSS, DOUBLE CHARACTER: SLAVERY AND MASTERY IN THE ANTEBELLUM

SOUTHERN COURTROOM 3 (2000) (discussing “slaves double identity as human subjects

and the objects of property relations at one and the same time”); T

USHNET, supra note 31,

at 229 (“Southern slave law was constructed around the distinctions between

regulation according to law and regulation according to sentiment, ultimately

grounded in the contradictions between bourgeois and slave relationships.”); Walter

Johnson, Review Essay, Inconsistency, Contradiction, and Complete Confusion: The

Everyday Life of the Law of Slavery, 22

LAW & SOC. INQUIRY 405, 429-30 (1997) (reviewing

footnote continued on next page

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explained in Part II.B above, a case like Memphis requires the court to treat an

enslaved person as both person and property. When applied outside the

context of slavery, courts face the difficulty of understanding to which legal

category the case belongs. Such blurring of categories can be found not only in

cases deriving from the hiring out of enslaved people, but also in cases

involving wrongful death and dram-shop liability, where precedent takes on a

different meaning if enslaved people are understood as property or if they are

understood as people.

176

Slave cases may therefore provide less clear statements

of legal holdings than courts’ initial readings of these cases suggest.

Second, judges risk relying on poorly reasoned cases by citing slavery.

Nineteenth-century judges presided over a social, economic, and political

system that was under attack.

177

These judges sometimes consciously made

decisions to preserve the social relations that benefited them and other white

Southerners.

178

By abstracting slave cases from their context, modern courts

risk relying on cases grounded in specious, motivated reasoning. Southern

courts, for example, often enforced public policies discouraging

manumission.

179

By drawing legal conclusions from cases contesting

manumissions or wills involving enslaved people, courts risk accepting the

conclusions of Southern judges drafted in service of a Southern slave society.

180

By citing to slave cases, judges may rely on cases in which judges implicitly or

explicitly were advancing a pro-slavery public policy.

MORRIS, supra note 27) (arguing that “complete confusion” characterized the Southern

law of slavery); see also F

EDE, supra note 24, at 9-12 (arguing that the law of slavery is

coherent, but only when understood in the context of an oppressive system);

MORRIS,

supra note 27, at 13-14 (discussing tensions in Southern law in response to Tushnet’s

work).

176. Compare, e.g., Godfrey, 718 So. 2d at 445-46 (referring to enslaved persons discussed in

dram-shop liability cases as people), with, e.g., Hughes v. PeaceHealth, 178 P.3d 225, 230-

31 (Or. 2008) (referring to enslaved persons discussed in assorted wrongful death cases

as property).

177. See MORRIS, supra note 27, at 14.

178. See HUEBNER, supra note 49, at 5-8 (“Sectional politics and the ideology of paternalism

defined southern judicial thinking on slavery and racial issues.”); see also B

ROPHY, supra

note 31, at 254 (“The trajectory of judicial and social thought in the South from the

beginning of the nineteenth century to the Civil War was from grand Enlightenment

generalities about freedom to pro-slavery ideas.”); F

EDE, supra note 27, at 156 (“The

courts . . . established and applied procedural rules in the Southern freedom and

manumission suits that directly or indirectly exhibited . . . judges’ intentions to make it

difficult for people held as slaves to pursue and win their suits.”).

179. See MORRIS, supra note 27, at 398-99 (describing judicial limitations on manumission).

180. Cf. Charles L. Barzun, Impeaching Precedent, 80 U. CHI. L. REV. 1625, 1631-32 (2013)

(arguing for “impeaching precedent,” a process where judges consider historical

evidence to evaluate the precedential value of cases).

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Third, citing to slave precedent requires grappling with a legal regime that

has been officially repudiated by the Civil War, politics, and law. Citing to

slave cases forces courts to distinguish the “good parts” of slave law from the

“bad parts,” which were officially rejected by the Reconstruction Amendments

and subsequent statutes and case law. Citing to slave cases thus creates the need

to justify the validity of a court’s reasoning rooted in an oppressive (and now

illegal) social order grounded in white supremacy. All other things being equal,

a case about enslaved people serves as poorer legal support than a case about

property that is still recognized as property.

2. Dignitary harms

Citing slavery also creates serious dignitary harms. Law has symbolic

power. Even lawyers who have been trained to abstract law from fact

recognize that cases have meaning that extends beyond their holdings.

Consider the U.S. Supreme Court’s recent decision to overrule Korematsu v.

United States in Trump v. Hawaii.

181

In part to limit the force of the dissent’s use

of the case, Chief Justice Roberts used his opinion “to make express what is

already obvious” and overrule a case that is now viewed as one of the Court’s

worst decisions.

182

In so doing, Chief Justice Roberts ratified Korematsu’s

treatment by litigators who already hesitated to cite the case. As Jamal Greene

has demonstrated, Korematsu had been “conspicuously absent” from

government briefs even before it had been officially overruled.

183

Lawyers

appear to have been wary of relying on the case because of its association with

what is now recognized as the xenophobic and racist internment of Japanese-

Americans.

184

Judges too seemed leery of its status, citing it in executive power

cases only to “single it out as a case to be avoided.”

185

Chief Justice Roberts’s

decision to overrule Korematsu suggests that he and other members of the

Court were attuned to the negative consequences of having it on the books,

even if they were not worried that it would be cited to justify similar abuses of

presidential authority in the future. As the Chief Justice put it, Korematsu “has

been overruled in the court of history.”

186

181. Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (condemning Korematsu v. United States,

323 U.S. 214 (1944)).

182. Id.

183. See Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 400 (2011).

184. For more on Korematsu and Japanese internment, see generally BRIAN MASARU

HAYASHI, DEMOCRATIZING THE ENEMY: THE JAPANESE AMERICAN INTERNMENT (2004);

PETER IRONS, JUSTICE AT WAR (1983); and ERIC K. YAMAMOTO ET AL., RACE, RIGHTS AND

REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT (2013).

185. See Greene, supra note 183, at 402.

186. Trump, 138 S. Ct. at 2423. Chief Justice Roberts overruled Korematsu in dicta, so it

technically remains good law.

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Courts, however, do not seem to recognize that slave cases have also been

“overruled in the court of history.” Rather than avoiding them, some judges

cite to slave cases because of their history. An Arkansas court, for example, cited

to a slave case to show the origin of an evidentiary rule related to third-party

testimony,

187

and a Supreme Court of Mississippi justice used a slave case to

illustrate the origin of the jury’s power to determine the sufficiency of

circumstantial evidence.

188

Other courts use similar citations to denote the

historical usefulness of slave cases and to emphasize the well-established nature

of the rules they cite.

189

Using the citation of slave cases to teach a lesson in the

history of legal doctrine illustrates the legal system’s interest in one kind of

history, namely that of the development of legal rules, while neglecting

another, the experience of the people who served as the stuff out of which

these legal rules were constructed. Rather than drawing attention to the plight

of the enslaved, in these cases courts obscure it.

This lack of attention to slavery is emphasized by the attention courts

draw to their quest to find the origins of legal rules. Slave cases in these

citations become vehicles to demonstrate a court’s rigor and learnedness. In

State v. Rinebold, for example, a Missouri court drew attention to the

“[i]ndependent research” it undertook to find authority for the seemingly “self-

evident” rule of law it sought.

190

Lengthy string cites, including slave cases

dating back to the nineteenth century, provide another way for courts to

187. See Bing v. State, 740 S.W.2d 156, 157 (Ark. Ct. App. 1987) (“As early as the decision in

[Pleasant v. State] which involved a charge of rape, it was recognized under the first and

third theories that: ‘It was competent for [the third party] to state, on his examination

in chief, the appearance of [the victim] . . . .’” (alteration in original) (quoting Pleasant v.

State, 15 Ark. 624, 648-49 (1855))).

188. See Corbin v. State, 585 So. 2d 713, 718 (Miss. 1991) (en banc) (Hawkins, J., dissenting)

(internal citation to Cicely v. State, 21 Miss. (13 S. & M.) 202 (1849)).

189. See, e.g., Barton Land Servs., Inc. v. SEECO, Inc., 428 S.W.3d 430, 436 (Ark. 2013) (“We

have long held that a ‘fee simple,’ as referenced in these statutes, is the greatest estate or

interest owned by a person to convey.” (citing Moody v. Walker, 3 Ark. 147 (1840)));

Brock v. Wedincamp, 558 S.E.2d 836, 839 (Ga. Ct. App. 2002) (highlighting the court’s

citation to the “first opinion addressing Georgia’s first wrongful death statute” (citing

S.-W. R.R. Co. v. Paulk, 24 Ga. 356, 359 (1858))); Whitacre P’ship v. Biosignia, Inc., 591

S.E.2d 870, 879 (N.C. 2004) (“As we noted over 150 years ago, [estoppel] is a principle

which ‘lies at the foundation of all fair dealing between [persons], and without which, it

would be impossible to administer law as a system.’” (second alteration in original)

(quoting Armfield v. Moore, 44 N.C. (Busb.) 157, 161 (1852))); Tire Shredders, Inc. v.

ERM-N. Cent., Inc., 15 S.W.3d 849, 853-54 (Tenn. Ct. App. 1999) (drawing attention to

the “first” case “discussing the types of damages that are available when negligent

conduct results in injury to personal property” (citing Johnson v. Perry, 21 Tenn. (2

Hum.) 569, 571-72 (1841))).

190. See 702 S.W.2d 921, 925 (Mo. Ct. App. 1985); see also Taylor v. Calvert, 437 So. 2d 508,

510-11 (Ala. 1983) (noting that the court’s search for definitive authority on a point of

law related to deed transfer “ended with the case of Frisbie vs. McCarty,” 1 Stew. & P. 56

(Ala. 1831), an opinion based on the transfer of an enslaved person).

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demonstrate their thoroughness.

191

Other courts use slave cases to provide

simple definitions of legal terms such as privity,

192

private property,

193

and

perpetuity.

194

By choosing a slave case to define basic legal terms or

demonstrate learning, judges show how lightly they weigh a case’s slave

context when deciding to cite it.

By citing slavery without truly grappling with the slave society from

which these cases arose, American lawyers follow in the footsteps of their

predecessors. Like the U.S. Supreme Court’s decision in Osborn v. Nicholson,

195

their approach cleaves the facts from the law. This approach fails to recognize

that the division is not as neat as they imagine.

196

As Marianne Constable has

convincingly illustrated, “legal claims or speech acts are simultaneously

matters of fact and of law.”

197

Judges shape the stories they tell to explain

themselves and justify their holdings. In short, language and argument

matter.

198

A recognition of the power of legal storytelling is not confined to

scholars. Experts on lawyering demonstrate a recognition that facts, law, and

language combine to give legal writing its power. They advise advocates to tell

the “story” of their case in order to best represent their client.

199

191. See, e.g., Alvarez v. Coleman, 642 So. 2d 361, 372 (Miss. 1994) (“Williams v. Mason, 556

So. 2d 1045, 1048 (Miss. 1990); Trotter v. Trotter, 490 So. 2d 827, 830 (Miss. 1986); Estate

of McKellar v. Brown, 404 So. 2d 550, 552 (Miss. 1981); Monroe v. Holleman, 185 So. 2d

[443 (Miss. 1966)]; and Anding v. Davis, 38 Miss. 574 (1860).”).

192. See, e.g., Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1031 (11th Cir.

2014) (quoting Lipscomb v. Postell, 38 Miss. 476, 489 (1860)).

193. See, e.g., Bradley v. Tishomingo County, 810 So. 2d 600, 603 (Miss. 2002) (en banc)

(“Private property is property of a specific, fixed, and tangible nature, capable of

possession, and transmission.” (citing Comm’rs of Homochitto River v. Withers, 29

Miss. 21, 32 (1855), aff’d sub nom. Withers v. Buckley, 61 U.S. (20 How.) 84 (1857))).

194. See, e.g., Brown Bros. Harriman Tr. Co. v. Benson, 688 S.E.2d 752, 755 (N.C. Ct. App.

2010) (quoting Griffin v. Graham, 8 N.C. (1 Hawks) 96, 130-32 (1820)).

195. See supra text accompanying notes 67-72.

196. As Marianne Constable has illustrated, judges’ opinions cannot be reduced to “a set of

statements of ostensibly timeless rules applied to propositions of fact.” See M

ARIANNE

CONSTABLE, OUR WORD IS OUR BOND: HOW LEGAL SPEECH ACTS 23, 131 (2014).

197. Id. at 78. Constable provides a close reading of Palsgraf v. Long Island Railroad, 162 N.E.

99 (N.Y. 1928), to illustrate how Judge Cardozo for the majority and Judge Andrews for

the dissent shaped their telling of the case to advocate for their positions. See

ONSTABLE, supra note 196, at 47-65.

198. Richard Weisberg has similarly argued that language of court opinions matter. Because

“form and substance are one” in a case, “judicial language is always more than the mere

translation of a ‘holding’ into words.” R

ICHARD WEISBERG, POETHICS, AND OTHER

STRATEGIES OF LAW AND LITERATURE 4-6 (1992).

199. See, e.g., RUGGERO J. ALDISERT, WINNING ON APPEAL: BETTER BRIEFS AND ORAL

ARGUMENT 163 (2d ed. 2003); RICHARD K. NEUMANN, JR. & SHEILA SIMON, LEGAL

WRITING §§ 27.1-29.2 (2008); LAWRENCE D. ROSENBERG, WRITING TO WIN: THE ART AND

SCIENCE OF COMPELLING WRITTEN ADVOCACY 21-24 (2012), https://perma.cc/X6AU-

footnote continued on next page

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Judges who cite slave cases must pay more attention to the stories told by

the judges on whom they rely. They must also recognize how their reliance on

those stories affects the persuasiveness and legitimacy of the stories they tell in

their own opinions. Slave cases provided crucial support for slave commerce.

Every case that treated an enslaved person as property signaled legal approval

of a slave society premised on white supremacy. Judges reinforced such

approval through racist presumptions about the behavior of black people and

demeaning descriptions of the enslaved. This language cannot be easily

separated from a case’s holding because it helped justify the treatment of black

people as property and their exclusion from the courtroom.

200

White

supremacy was a basic underlying presumption of every slave case. By citing

such cases, contemporary judges treat the authors of slave cases as respected

authorities, minimizing their support for white supremacy. They thus affirm

and perpetuate the formalism that allowed lawyers to serve as such successful

advocates for slavery in the first place. These stories obscure the legal system’s

complicity in slavery and erase the legacy of the law of slavery in the

present.

201

Telling exclusionary stories is especially harmful because of the

unrepresentativeness of the modern American legal system. The exclusion of

the stories of enslaved people mirrors the continued exclusion of a

representative number of black voices from the judiciary and upper echelons

of the legal profession.

202

Perceived racial disparities throughout the justice

system have led many black Americans to mistrust courts;

203

the stories judges

WYTL; Robert H. Jackson, Advocacy Before the Supreme Court: Suggestions for Effective

Case Presentations, 37 A.B.A. J. 801, 803 (1951) (“[M]ost contentions of law are won or lost

on the facts.”).

200. The exclusion of black voices from the courtroom was further supported by

evidentiary rules that barred their testimony. See M

ORRIS, supra note 27, at 229-30.

201. Judges thus shirk their responsibility “to stimulate a candid discussion of just what . . .

shared norms are or should be.” See M

ARK OSIEL, MASS ATROCITY, COLLECTIVE

MEMORY, AND THE LAW 210, 229 (1997).

202. See TRACEY E. GEORGE & ALBERT H. YOON, AM. CONSTITUTION SOC’Y, THE GAVEL GAP:

WHO SITS IN JUDGMENT ON STATE COURTS 7 (n.d.), https://perma.cc/677S-LL42; Robert

W. Gordon, The Legal Profession, in L

OOKING BACK AT LAW’S CENTURY 287, 293 (Austin

Sarat et al. eds., 2002).

203. See DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL

JUSTICE SYSTEM 10-11 (1999) (describing African American wariness of the justice

system); J

AMES L. GIBSON & MICHAEL J. NELSON, BLACK AND BLUE: HOW AFRICAN

AMERICANS JUDGE THE U.S. LEGAL SYSTEM 175 (2018) (finding a “dramatic chasm in the

legal attitudes of blacks and whites”);

MARK PEFFLEY & JON HURWITZ, JUSTICE IN

AMERICA: THE SEPARATE REALITIES OF BLACKS AND WHITES 15-16 (2010) (noting that

African Americans are “significantly more suspicious of the [justice] system” than

whites);

see also Derrick A. Bell, Jr., Racism in American Courts: Cause for Black Disruption

or Despair?, 61 C

ALIF. L. REV. 165, 166 (1973) (“[W]ith few exceptions, black defendants in

criminal cases have not engaged in disruptive behavior, not because they lack

footnote continued on next page

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tell give black Americans further reason to believe that their experiences are

not valued in American courtrooms.

III. Repealing Slave Law

Once judges recognize the legal and dignitary harms posed by their

unconsidered citation of slave cases, they can begin to address them. This Part

considers several possibilities for approaching the modern legacy of slavery

and offers a preliminary framework for the judicial treatment of slave law.

A. Judges Address Slave Law

Although the vast majority of judges who cite slave cases treat them as

regular precedent, a few judges have addressed the harms of citing slave cases.

Dougherty v. Rubenstein, a 2007 case in the Maryland Court of Special Appeals,

provides a helpful example of a court’s treatment of the dignitary harms of

citing a slave case.

204

In Dougherty, the court cited Townshend v. Townshend as

part of its discussion of the development of the “insane delusion rule,” which

allowed a court to throw out a will if a person exhibited clearly delusional

beliefs on a certain subject related to his or her will.

205

Townshend grew out of a

challenge by a testator’s family to a will that had freed the people the testator

had held as slaves.

206

The family argued that the testator was operating under

an “insane delusion” because he believed that “God wanted him to free his

slaves and give them his property.”

207

Although the Dougherty court cited

Townshend as good law, it included a lengthy footnote in its opinion

acknowledging the “startling” context of the case.

208

According to the court,

the case provided an “example of the changes in American society and law in

the past 200 years.”

209

The Seventh Circuit similarly attempted to address the dignitary harms of

citing slave cases. In citing a case for the proposition that a federal court could

not exercise concurrent jurisdiction over property with a state court, the court

wrote that the “the nature of the ‘property’ involved in [the case]—human

slaves—casts something of a pall over the rule’s origins” but argued that its

provocation, but because nothing in their personal experience, and little in the history

of the black man in America, provides them any hope for justice.”).

204. 914 A.2d 184 (Md. Ct. Spec. App. 2007).

205. Townshend, the court noted, was the first use of the rule in Maryland. Id. at 187 (citing

Townshend v. Townshend, 7 Gill 10 (Md. 1848)).

206. See 7 Gill at 11-14.

207. Dougherty, 914 A.2d at 187 n.2 (citing Townshend, 7 Gill at 15).

208. Id.

209. Id. at 187.

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“subsequent invocation in cases involving” other forms of property was

enough to confirm its “modern-day vitality.”

210

In other cases, courts have determined that a case’s slave context makes it

unreliable precedent. In Payne v. Markeson, for example, the Missouri Court of

Appeals noted that it was difficult to tell whether cases in which masters were

rewarded damages for enslaved people injured after consuming intoxicating

beverages “sounded in property, rather than tort.”

211

Similarly, in a bailments

case over a collection of historical documents and manuscripts, the North

Carolina Court of Appeals held that an 1856 North Carolina Supreme Court

decision related to the “transfer of a slave from a parent to a child” was

“inapplicable to bailments generally.”

212

Such exceptions, both courts implied,

should not be relied upon.

213

Another, more explicit, example of the treatment

of slave law as dubious precedent came in In re Security Lighting Co., a 1983

bankruptcy case from the Eastern District of Michigan.

214

That case arose

from a negligence claim by a company in bankruptcy proceedings against a

truck driver who had allegedly injured one of the company’s employees.

215

Although the court recognized that Southern cases had held “non-slaves liable

to a master for damages from injuring or killing his slave,” the court refused to

follow such precedent.

216

These cases, it argued, demonstrated “part of the

perversity of rationalizing slavery.”

217

The court concluded that “counsel for

the plaintiff [would] not wish to rely upon the law of slavery to sustain his

claim.”

218

The Oregon Supreme Court reached a similar conclusion in Hughes v.

PeaceHealth, holding that such cases were not relevant to modern wrongful

death claims law.

219

210. United States v. $79,123.49 in U.S. Cash & Currency, 830 F.2d 94, 96-97 (7th Cir. 1987).

211. See No. WD77553, 2015 WL 2090268, at *7 n.13 (Mo. Ct. App. May 5, 2015).

212. See Johnson v. N.C. Dep’t of Cultural Res., 735 S.E.2d 595, 598 (N.C. Ct. App. 2012)

(citing Largent v. Berry, 48 N.C. (3 Jones) 531 (1856)).

213. Payne, 2015 WL 2090268, at *7 n.13; Johnson, 735 S.E.2d at 598.

214. 30 B.R. 10 (Bankr. E.D. Mich. 1983).

215. See id. at 10-11.

216. Id. at 11 n.1.

217. Id.

218. Id. The court also found that Michigan had “never recognized, either by statute or

controlling case law, the ancient common law action permitting a master to recover

the loss of the service of a servant.” Id. at 11. It is possible that if the precedent in those

slave cases had been followed earlier, the court would have felt comfortable citing

slavery.

219. 178 P.3d 225, 230 (Or. 2008) (“Most of [the cases cited in support of common-law

wrongful death claims] involve actions by slaveowners in Southern states seeking

damages for the negligently caused death of a slave. Those cases did not involve actions

for wrongful death in the present sense but, instead, were actions asserting tortious

conversion of, or damage to, ‘property.’”).

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These cases provide evidence that judges can recognize and attempt to

address the harms inherent in citing slave cases if they so choose. But such cases

are rare, and they do not provide a coherent framework for determining when

slave citation provides bad law versus when it provides good law, whose “pall”

or “startling” context must be addressed. Occasional remarks by judges are not

sufficient to counteract the widespread citation of slave law.

B. Others Address the Legacy of Slavery

Other institutions also provide models for addressing slavery’s legacy.

Recent historical work has revealed the important role that slavery played in

the development of many American institutions. Scholars have highlighted the

importance of slavery to the development of the American economy,

illustrating, for example, that slaveowners played significant roles in the

growth of Northern industry, the development of investment banking, and

the adoption of management practices.

220

Scholars have also highlighted the

220. Scholarship on the relationship between slavery and capitalism came in two waves,

both of which highlighted the importance of slavery to American economic

development. The first, which viewed “capitalism and slavery as antithetical social

formations,” nevertheless “highlighted the value of slavery and the slave trade in the

violent development of capitalism.” Amy Dru Stanley, Histories of Capitalism and Sex

Difference, 36 J. E

ARLY REPUBLIC 343, 346-47 (2016); see also DOUGLASS C. NORTH, THE

ECONOMIC GROWTH OF THE UNITED STATES: 1790-1860, at 101-134 (1961) (noting the

importance of slavery to the economic growth of United States but distinguishing the

Southern economy from other regions).

Other recent scholarship argues that slavery was both compatible with and critical to

the development of American capitalism. See, e.g., S

VEN BECKERT, EMPIRE OF COTTON: A

GLOBAL HISTORY, at xvi-xvii (2014) (arguing that slave-based cotton production played

a critical role in development of capitalism); J

OHN MAJEWSKI, MODERNIZING A SLAVE

ECONOMY: THE ECONOMIC VISION OF THE CONFEDERATE NATION 3 (2009) (“Secessionists

imagined that an independent Confederacy would create a modern economy that

integrated slavery, commerce, and manufacturing.”); A

ARON W. MARRS, RAILROADS IN

THE OLD SOUTH: PURSUING PROGRESS IN A SLAVE SOCIETY 9 (2009) (“[W]hite antebellum

southerners married conservative social ideals with forward-looking technological

advancement.”); S

HARON ANN MURPHY, INVESTING IN LIFE: INSURANCE IN ANTEBELLUM

AMERICA 184-206 (2010) (highlighting the use of life insurance by slaveowners to

protect their investments in the enslaved); R

OSENTHAL, supra note 129, at 3 (“At a

minimum, slaveholders (and those who bought their products) built an innovative,

global, profit-hungry labor regime that contributed to the emergence of the modern

economy.”); Boodry, supra note 61, at 163-67,

177-78 (linking slavery to the

development of investment banking); Martin, supra note 22, at 817-66 (analyzing the

use of mortgages backed by enslaved people in Louisiana, South Carolina, and

Virginia); Seth Rockman, Forum, The Future of Civil War Era Studies: Slavery and

Capitalism, 2 J.

CIV. WAR ERA 5 (2012). Sven Beckert and Seth Rockman’s edited volume

provides a useful summary of recent literature on capitalism and slavery. See generally

LAVERY’S CAPITALISM, supra note 61. For a critical review of the book and the literature

on slavery and capitalism more generally, see Stephanie McCurry, Plunder of Black Life:

footnote continued on next page

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critical role that experimentation on enslaved people played in the

development of the medical profession.

221

Churches too have been implicated

in slavery, both by promulgating pro-slavery doctrine and by engaging

directly in the buying and selling of enslaved people.

222

Universities involved

themselves in slave commerce by benefiting from the ownership of enslaved

people and by housing pro-slavery scholars.

223

State governments also

participated in slave commerce, relying on enslaved people to accomplish

public works projects.

224

This work has also revealed the ongoing legacy of racial inequality that

slavery helped create.

225

In part as a result of this scholarship, “[s]lavery has a

greater presence in American life now than at any time since the Civil War

ended.”

226

Engagement with slavery’s legacy has led to what historian

Stephanie McCurry calls “a moment of reckoning . . . rare in [U.S.] history.”

227

Thanks to the efforts of protestors, the Confederate flag no longer flies at the

The Problem of Connecting the History of Slavery to the Economics of the Present, TIMES

LITERARY SUPPLEMENT, May 19, 2017, at 23-26.

221. See DEIRDRE COOPER OWENS, MEDICAL BONDAGE: RACE, GENDER, AND THE ORIGINS OF

AMERICAN GYNECOLOGY 46-47 (2017) (highlighting the use of black women in medical

experimentation); H

ARRIET A. WASHINGTON, MEDICAL APARTHEID: THE DARK HISTORY

OF MEDICAL EXPERIMENTATION ON BLACK AMERICANS FROM COLONIAL TIMES TO THE

PRESENT 1-74 (2006) (discussing the use of enslaved people for medical

experimentation); Todd L. Savitt, The Use of Blacks for Medical Experimentation and

Demonstration in the Old South, 48 J.S.

HIST. 331, 331 (1982) (noting that in the antebellum

South “white medical educators and researchers relied greatly on the availability of

Negro patients”).

222. See JENNIFER OAST, INSTITUTIONAL SLAVERY: SLAVEHOLDING CHURCHES, SCHOOLS,

COLLEGES, AND BUSINESSES IN VIRGINIA, 1680-1860, at 14-49, 87-125 (2016) (illustrating

the ownership of enslaved people by Anglican, Episcopal, and Presbyterian churches).

But see D

OUGLAS M. STRONG, PERFECTIONIST POLITICS: ABOLITIONISM AND THE RELIGIOUS

TENSIONS OF AMERICAN DEMOCRACY 1-5 (1999) (discussing religious abolitionism).

223. See BROPHY, supra note 31, at 48-130 (describing pro-slavery academic thought). See

generally C

RAIG STEVEN WILDER, EBONY & IVY: RACE, SLAVERY, AND THE TROUBLED

HISTORY OF AMERICA’S UNIVERSITIES (2013) (identifying colleges as active participants in

slave society).

224. See Aaron R. Hall, Public Slaves and State Engineers: Modern Statecraft on Louisiana’s

Waterways, 1833-1861, 85 J.S.

HIST. 531, 532-35 (2019) (“Louisiana mobilized the

expropriated human power of racial enslavement to govern nature for state growth.”);

Aaron R. Hall, Slaves of the State: Infrastructure and Governance Through Slavery in the

Antebellum South, 106 J.

AM. HIST. 19, 19-21 (2019) (describing the use of enslaved people

for public infrastructure projects).

225. See Ira Berlin, Presidential Address, American Slavery in History and Memory and the

Search for Social Justice, 90 J.

AM. HIST. 1251, 1258 (2004).

226. See id. at 1251-55 (discussing new interest in slavery beginning in the late twentieth

century that has generated movies, television programs, exhibitions, museums, books,

and stories in the popular press).

227. McCurry, supra note 220, at 23.

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South Carolina State Capitol.

228

And in New Orleans, statues of Confederate

military leaders have been removed from public view.

229

Protestors in Chapel

Hill, North Carolina refused to wait for official action, tearing down the

Confederate statue known as “Silent Sam.”

230

Many other monuments and

memorials have been removed with less fanfare.

231

Beyond removing memorials to heroes of the Confederacy, recent

attention to the legacy of slavery has included efforts to grapple with those

who benefited from and contributed to nineteenth-century slaveholding. The

New York Parks Department removed a statue of J. Marion Sims, a pioneering

gynecologist, from Central Park because he conducted surgical experiments on

enslaved women.

232

Other cities have passed laws requiring businesses who

contract with the cities to disclose whether they profited from slavery.

233

These ordinances have led private businesses to acknowledge the benefits their

predecessors derived from supporting slavery.

234

Universities have also found

themselves confronting the legacy of slavery. Georgetown University, for

example, has attempted to atone for its sale of 272 enslaved people by issuing a

formal apology, establishing a center for the study of slavery, and pledging to

give preferential admissions treatment to the descendants of those whom it

228. Amanda Holpuch, Confederate Flag Removed from South Carolina Capitol in Victory for

Activists, G

UARDIAN (July 10, 2015, 10:36 AM EDT), https://perma.cc/76UT-6S7N;

Stephanie McCrummen & Elahe Izadi, Confederate Flag Comes Down on South Carolina’s

Statehouse Grounds, W

ASH. POST (July 10, 2015, 1:20 PM PDT), https://perma.cc/XLF7-

FWDR.

229. Janell Ross, “They Were Not Patriots”: New Orleans Removes Monument to Confederate Gen.

Robert E. Lee, W

ASH. POST (May 19, 2017), https://perma.cc/6L8Y-NYYD.

230. Jesse James Deconto & Alan Blinder, “Silent Sam” Confederate Statue Is Toppled at

University of North Carolina, N.Y.

TIMES (Aug. 21, 2018), https://perma.cc/M6GM-66RR.

231. Confederate Monuments Are Coming Down Across the United States: Here’s a List, N.Y. TIMES

(updated Aug. 28, 2017), https://perma.cc/83X2-U98W.

232. William Neuman, City Orders Sims Statue Removed from Central Park, N.Y. TIMES

(Apr. 16, 2018), https://perma.cc/RU5T-6JVC.

233. See, e.g., Slavery Disclosure Ordinance, L.A., CAL., ADMIN. CODE div. 10, ch. 1, art. 15

(2019); City of Oakland Slavery Era Disclosure Ordinance, O

AKLAND, CAL., MUN. CODE

§ 9.60.010 (2019); San Francisco Slavery Disclosure Ordinance, S.

F., CAL., ADMIN. CODE,

§ 12Y.4 (2019); Business, Corporate and Slavery Era Insurance Ordinance, C

HI., ILL.,

CODE § 2-92-585 (2019); DETROIT, MICH., CODE § 17-5-252 (2019); Business, Corporate

and Slavery Era Insurance Ordinance, P

HILA., PA., CODE § 17-104(2) (2019).

234. See, e.g., Darryl Fears, Seeking More Than Apologies for Slavery, WASH. POST (June 20,

2005), https://perma.cc/3FFY-4LDS (detailing disclosures by Wachovia and

J.P. Morgan Chase); see also O

AST, supra note 222, at 203-31 (analyzing industrial

involvement in slaveholding); Berlin, supra note 225, at 1255-56 (discussing disclosure

laws).

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enslaved.

235

Other universities have renamed buildings and devoted resources

to researching their ties to slavery.

236

These moves demonstrate the strong public interest in addressing slavery’s

legacy and provide possible models for engaging with the citation of slave

cases. Few, however, have established well-considered frameworks for when

and how slavery’s legacy should be acknowledged. Yale’s Committee to

Establish Principles on Renaming provides a welcome exception.

237

Its report

offers a useful model for legal professionals reconsidering their citation

practices.

238

Yale formed its committee in response to protests demanding that

it change the name of one of its colleges so that it no longer honored John C.

Calhoun, a prominent nineteenth-century defender of Southern slavery.

239

The committee adopted three principles.

240

First, it adopted a general

presumption against renaming.

241

The committee justified this presumption

by noting the value of tradition, the moral complexity of human activity, and

the impossibility of ever achieving “perfect moral hindsight.”

242

Second, the

committee acknowledged that renaming was nevertheless sometimes justified.

235. See Rachel L. Swarns, Georgetown University Plans Steps to Atone for Slave Past, N.Y. TIMES

(Sept. 1, 2016), https://perma.cc/3XXG-Z8AX; see also T

HE WORKING GROUP ON

SLAVERY, MEMORY, AND RECONCILIATION, REPORT TO THE PRESIDENT OF GEORGETOWN

UNIVERSITY 13, 28-29, 36, 38-39, 40 (2016), https://perma.cc/D9HX-82LY.

236. See Debra Goldschmidt, Colleges Come to Terms with Slave-Owning Pasts, CNN (May 23,

2011, 11:53 AM EDT), https://perma.cc/AW42-ME9F (discussing efforts by the College

of William & Mary and Brown University to research their links to slavery); see also

AST, supra note 222, at 126-202 (describing slavery at the College of William & Mary,

Hampden-Sydney College, the University of Virginia, and the Hollins Institute);

President’s Comm’n on Slavery & the Univ., Universities Studying Slavery, U.

VA.,

https://perma.cc/TJD8-DVFA (archived Nov. 9, 2019) (listing member institutions of

an initiative to study links between slavery and universities).

237. See Letter from Comm. to Establish Principles on Renaming, Yale Univ. to President

Peter Salovey, Yale Univ. (Nov. 21, 2016), https://perma.cc/9XZ4-CFBE (describing the

background and formation of the committee).

238. COMM. TO ESTABLISH PRINCIPLES ON RENAMING, YALE UNIV., REPORT OF THE

COMMITTEE TO ESTABLISH PRINCIPLES ON RENAMING (2016), https://perma.cc/YE59-

E699.

239. See Monica Wang and Susan Svrluga, Yale Renames Calhoun College Because of Historical

Ties to White Supremacy and Slavery, W

ASH. POST: GRADE POINT (Feb. 11, 2017, 3:29 PM

PST), https://perma.cc/99ZG-6X3N. John C. Calhoun trained as a lawyer at the

Litchfield Law School discussed at notes 36-38 and accompanying text above.

240. COMM. TO ESTABLISH PRINCIPLES ON RENAMING, supra note 238, at 18-23. The principles

are in part built on those suggested by Alfred Brophy. See Alfred L. Brophy, The Law

and Morality of Building Renaming, 52 S.

TEX. L. Rev. 37, 53-63 (2010). Brophy’s

principles are “Who Named It and What Did the Name Mean?”; “What Does the Name

Mean Now?”; “Does the Building Name Speak Now?”; and “What Does Removal of a

Name Say About Us?” Id.

241. COMM. TO ESTABLISH PRINCIPLES ON RENAMING, supra note 238, at 18-19.

242. See id. at 18.

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It listed four factors to be considered: (1) whether the “principal legacy of the

namesake was fundamentally at odds with the mission of the university”;

(2) whether the principal legacy was “significantly contested” at the time of the

naming, that is, whether the person being honored had an “unexceptional

relationship[] to moral horrors” or was distinctively implicated in them;

(3) whether the decision to honor the person was “at odds with the mission of

the university” at the time they were honored; and (4) whether the specific

building at issue played an important role in “forming community.”

243

Third,

the committee found that renaming created obligations.

244

Those who sought

to rename buildings should be careful not to erase history, should consider

contextualizing the name through exhibits or explanation if it is kept, and

should go through a formal process before renaming.

245

In the case of John C.

Calhoun, who left a legacy as a constitutional theorist and advocate of slavery,

the Yale President and the Yale Board of Trustees concluded that renaming was

in order.

246

C. Addressing Slave Citation

Yale’s principles provide a useful framework for the treatment of slave

citation. First, like Yale’s committee, the common law legal system recognizes

the value of tradition. A simple rule like “stop citing cases with bad facts or

written by judges who did bad things” would not work. Morality can be a

moving target. Judging past actors purely by modern ethical standards

undervalues tradition and gives too much credence to contemporary ethical

norms.

247

But the legal profession also recognizes that changing standards may

require us to reevaluate tradition. We cannot hold on to antiquated moral

positions that have, in Chief Justice Roberts’s words, been “overruled in the

court of history.”

248

Finally, Yale’s principles suggest that ignoring history is

not an appropriate response to past mistakes. Simply erasing a bad legal legacy

243. Id. at 19-22.

244. Id. at 22-23.

245. Id.

246. Andy Newman & Vivian Wang, Calhoun Who? Yale Drops Name of Slavery Advocate for

Computer Pioneer, N.Y.

TIMES (Sept. 3, 2017), https://perma.cc/ANE4-WJEU; see also

Statement of Peter Salovey, President, Yale Univ., Decision on the Name of Calhoun

College (Feb. 11, 2017), https://perma.cc/V9ZV-BT67.

247. Sanford Levinson refers to such judging of the past as a “cheap thrill.” See Sanford

Levinson, Allocating Honor and Acting Honorably: Some Reflections Provoked by the Cardozo

Conference on Slavery, 17 C

ARDOZO L. REV. 1969, 1975 (1996) (responding to Richard

Weisberg, The Hermeneutic of Acceptance and Discourse of the Grotesque, with a Classroom

Exercise on Vichy Law, 17 C

ARDOZO L. REV. 1875 (1996)).

248. Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018).

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would allow a legal profession that was complicit in slavery to avoid

confronting its past.

Building on these values, I offer my own preliminary principles. First,

judges should continue to treat most nineteenth-century precedent as good

law. It would be possible to impeach nearly every nineteenth-century court

decision by pointing to their authors’ participation in (or contribution to) slave

society. As white men, all judges benefited from the racial politics of slavery

and every Southern judge contributed to the maintenance of slavery, even in

non-slave cases. By setting the ground rules for commerce, they also set the

ground rules for slave commerce. Most Northern judges were also complicit,

either by benefiting from the products of the plantation South, by

participating in trade, by maintaining legal ties with Southern lawyers, or by

failing to participate in abolitionist activity. If we look carefully enough, we

could find something objectionable about nearly every judge or opinion, if not

in the treatment of the enslaved, then in the treatment of women, criminals,

the poor, immigrants, or other marginalized members of nineteenth-century

society. In a legal system built on precedent, disregarding the decisions of all

these judges is impractical.

Second, slave cases should be an exception to the general rule that

nineteenth-century precedent is presumptively good law. As I have detailed

above, the citation of slave cases creates legal and dignitary harms. These cases,

because they rely on the subjugation of black people, are clearly at odds with

the mission of the post-Civil War legal system, especially as defined by the

Reconstruction Amendments. Moreover, legal support for slavery cannot be

excused by its general acceptance. Although most white Americans benefited

from slavery, doubts about the morality of its practice predated the existence

of the United States.

249

For these reasons, judges and litigants should exercise a

presumption against citing slave cases as regular precedent.

250

Third, judges who choose to rely on slave cases should justify the legal

persuasiveness of their citations and work to ameliorate the dignitary harms

inherent in citing slave cases. Because slavery treated people as property, it

249. See generally DAVID WALDSTREICHER, SLAVERY’S CONSTITUTION: FROM REVOLUTION TO

RATIFICATION (2009) (describing the fight over slavery at the Constitutional

Convention).

250. Although I have not researched the citation of other objectionable material, it is

possible that these standards would require reevaluation of the use of precedent outside

of the slave context. Slavery, however, is unique. Slave cases do not merely involve

discriminatory holdings or rely on objectionable practices; they are also the product of

legal reasoning that treated enslaved people as chattel. Not only was the original

treatment of people as property dehumanizing, modern judges who cite these cases

without commentary continue to dehumanize the enslaved people involved in these

cases by treating them as property. They perpetuate the wrong, rather than just

reminding us of an objectionable history.

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created confusing and perverse legal rules. Judges who look to slave law should

carefully analyze these cases to ensure that their basis in a slave regime, since

repudiated by the law, does not affect their validity. Judges should therefore

explicitly address and justify their legal validity in the body of their opinions.

Moreover, judges must consider the dignitary harms of their citation. This

means carefully reading the facts of the slave cases they cite and considering

these facts in light of the propositions for which the cases are meant to stand.

At minimum, judges who cite slave cases would have to both acknowledge a

case’s origin in slavery and its enslaved subjects. For many cases, however,

deeper engagement would be required to acknowledge the humanity of human

property and justify the use of the case despite its roots in white supremacy.

In order to encourage the adoption of these principles, I offer three

suggestions:

First, legal research tools should implement a symbol analogous to the

ones they use to denote a case’s subsequent history to alert legal researchers

when a case involves slavery. Such a symbol would draw attention to the

pervasiveness of slave law and alert judges and litigators to slavery’s presence

in the cases they are reading. It would also prevent accidental citation and

encourage legal researchers to read beyond a case’s holding. It would be

especially helpful to highlight cases that may have been abrogated by the

Thirteenth Amendment.

Second, The Bluebook should require an additional signal, such as an

“(enslaved party)” parenthetical, in citations to slave cases. The additional rule

could be added as part (e) to section 10.7.1, which governs “Explanatory Phrases

and Weight of Authority.”

251

Such a requirement would prevent litigators

from intentionally or accidentally obscuring a case’s origin in slavery.

Requiring such acknowledgement in citation would provide transparency to

the public but not limit the power of judges and lawyers to cite these cases.

Federal and state courts could promote a similar process by passing local rules

that require the flagging of slave cases.

Third, the state and federal judiciaries should publicly acknowledge the

legacy of slave law and make the history of slave citation accessible to those

without access to legal research tools. They could make slave cases accessible

on their websites, add informational plaques at courthouses below the portraits

of judges who authored slave cases, acknowledge links to slavery when

explaining their histories, or issue statements apologizing for their role in

slave commerce. As other attempts to address slavery’s legacy have

demonstrated, members of the public, rather than historians or scholars, have

often been the ones to force institutions to confront their ties to slavery. The

251. See THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 10.7.1, at 109-10 (Columbia Law

Review Ass’n et al. eds., 20th ed. 2015).

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legal profession owes it to the public, upon whom it depends for legitimacy, to

provide input on how the citation of slavery ought to be addressed.

Exposing the practice of the citation of slave cases will allow judges and

court systems to acknowledge and begin to atone for their past acts. To

encourage this process, I have made a database of the instances of slave citation

I have found available online at www.citingslavery.org. I also plan to continue

to update this database to reflect new instances of citation to slave cases.

D. Objections

Some may argue that the judicial system’s general reliance on precedent

ought to overcome my objections to the treatment of slave cases as good law.

Justifications for precedent fall into four broad categories: First, precedent

protects the rule of law by providing “legal certainty and formal equality.”

252

By honoring prior decisions, judges make the law predictable, limit their

discretion, and provide a stable legal environment.

253

Second, following

precedent promotes integrity by treating people consistently, despite

differences in time and place.

254

Third, reliance on precedent can be justified by

a belief that the prior case was correctly decided, whether because the court

had greater expertise, other decisionmaking advantages, or simply because the

judicial system usually reaches the right outcome.

255

Finally, following

precedent, as Anthony Kronman suggests, may be justified out of reverence for

traditions.

256

Judges may choose to “honor the past for its own sake.”

257

The first justification for following precedent provides an unconvincing

justification for the citation of slave law. Setting aside the obvious problem

with describing cases involving human property as supporting formal

equality, it is hard to imagine any litigants relying exclusively on slave cases

from more than a hundred years ago to determine their rights.

258

Treating

252. Barzun, supra note 180, at 1646-47; see also Frederick Schauer, Precedent, 39 STAN. L. REV.

571, 595-602 (1987) (describing justifications for precedent).

253. See Barzun, supra note 180, at 1646-47.

254. See id. at 1652-54.

255. See id. at 1648-52.

256. See Anthony T. Kronman, Precedent and Tradition, 99 YALE L.J. 1029, 1036-37 (1990). For

a critique of Kronman’s position, see David Luban, Essay, Legal Traditionalism, 43 S

TAN.

L. REV. 1035, 1040-60 (1991).

257. Kronman, supra note 256, at 1036.

258. Judges themselves seem to rely on cases inconsistently for reasons that are difficult to

pinpoint. For example, my research revealed that Mississippi courts have relied on

Nevitt v. Bacon, 32 Miss. 212 (1856), a case involving a mortgage on a land and enslaved

people, six times since 2003. See Knight v. Knight, 85 So. 3d 832, 836 (Miss. 2012) (citing

Nevitt); Clark Sand Co. v. Kelly, 60 So. 3d 149, 161 (Miss. 2011) (en banc) (internal

citation to Nevitt); Lincoln Elec. Co. v. McLemore, 54 So. 3d 833, 839 (Miss. 2010) (en

footnote continued on next page

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slave cases with greater scrutiny seems highly unlikely to destabilize the rule

of law or legal practice.

The second justification provides an equally implausible rationale. Slave

cases treat some humans as property and often introduce categories unique to

the law of slavery. They do not demonstrate the kind of consistency that

justifies relying on them as precedent.

The third justification, based on deference to the prior court, provides a

more convincing description of judicial behavior. Judges seem to cite slave

cases as a way to honor the establishment of the legal rules on which those

judges depend. Deference to the knowledge of earlier judges, however, should

be drawn into question based on a case’s origination in slavery. Even if we

grant that a judge was a thorough jurist, his support for slavery gives us reason

to scrutinize his judgment or at least consider the perspective that the enslaved

person was likely barred from sharing in court.

The fourth explanation, understanding citation as respect for tradition,

also provides a plausible explanation for how courts use slave cases when they

cite them. Courts seem to value a connection with their history, as

demonstrated when they use “we” to refer to decisions made more than 150

years earlier.

259

Reverence for a tradition that played a vital role in regulating a

slave society, however, is suspect. Judges who cite slave cases to honor

tradition should at minimum clarify which tradition they are honoring; they

should also weigh the value of this tradition against the harms of citing slavery.

Another objection might be that discouraging slave citation will further

obscure the roots of American law in slavery.

260

Judges will simply cite cases

banc); Koestler v. Miss. Baptist Health Sys., 45 So. 3d 280, 283 n.10 (Miss. 2010);

Marshall v. Kan. City S. Rys. Co., 7 So. 3d 210, 213-14 (Miss. 2009) (en banc); Marshall v.

Kan. City S. Rys. Co., 7 So. 3d 265, 270 (Miss. Ct. App. 2007), rev’d, 7 So. 3d 210 (Miss.

2009). Other cases, however, such as Bullitt, Miller & Co. v. Taylor & Richardson, 34 Miss.

708 (1858), a case involving the alleged fraudulent conveyance of enslaved people, have

been cited only a few times in the last fifty years. See Barbee v. Pigott, 507 So. 2d 77, 84

(Miss. 1987) (most recent cite to Bullitt); Morgan v. Sauls, 413 So. 2d 370, 374-75 (Miss.

1982) (second most recent); Hinton’s Ex’r v. Hinton’s Comm., 76 S.W.2d 8, 11 (Ky. 1934)

(third most recent).

It is unclear how such citation patterns emerge. Both Nevitt and Bullitt, for example, had

not been cited for long periods of time before modern courts referenced them. Until

2003, the last citation to Nevitt came in 1958. See Lee v. Thompson, 859 So. 2d 981, 991

(Miss. 2003) (en banc); Smith v. Copiah County, 100 So. 2d 614, 616 (Miss. 1958). Bullitt,

in contrast, was last cited in 1934 until it was exhumed by the Mississippi Supreme

Court in 1982 as part of a string cite, only to return into obscurity after being cited (as a

“see also”) in another Mississippi Supreme Court case in 1987. See Barbee, 507 So. 2d at

84; Morgan, 413 So. 2d at 374-75; Hinton’s Ex’r, 76 S.W.2d at 10.

259. See, e.g., Barton Land Servs., Inc. v. SEECO, Inc., 428 S.W.3d 430, 436 (Ark. 2013);

Whitacre P’ship v. Biosignia, Inc., 591 S.E.2d 870, 879 (N.C. 2004).

260. Cf. Brophy, supra note 240, at 66 (arguing that renaming buildings “threatens our

memory of the past”).

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that cite slavery, avoiding the stigma of citation, while doing nothing to

change the law or address the dignitary harms I have listed. I take this objection

seriously, which is part of the reason that I have proposed the addition of a

slavery flag in legal research tools and encouraged judicial officials to publicly

acknowledge their involvement in slavery’s legacy. Even if these proposals are

not implemented, an end to the citation of slavery would still be an

improvement. The roots of slavery have already been obscured by the practices

of American lawyers. In this context, the erasure of slave cases from future

citation would actually serve as an acknowledgment of past harms and a

recognition that such cases should not be treated as regular precedent.

Conclusion

The contemporary citation of slave cases has deep roots in American law.

Slave cases could not have become accepted as precedent if they had not first

been integrated into the mainstream of American law, and second, been

accepted as good law after the Civil War. The continued citation of slave cases

can thus be seen as part of a failure of transitional justice. As historians have

documented, the legal system neglected people formerly held as slaves in

myriad ways in the wake of Emancipation. Federal legislators failed to

redistribute Southern plantation land and law enforcement proved incapable

of (and often unwilling to) address the politically effective violence of

Southern Redeemers.

261

Following successful attacks on Reconstruction by

white supremacists, the legal system again failed African Americans as it

enforced Jim Crow policies.

262

The Civil Rights movement addressed some of

these wrongs, but its rights-based, universalist approach to discrimination does

not seem capable of addressing many of the problems faced by African

Americans today.

263

According to Ruti Teitel, transitional justice demands that law “[s]trik[e] a

balance between discontinuity and continuity.”

264

American lawyers, it

appears, have consistently erred on the side of continuity. They produced a

transitional narrative that defined the law of slavery narrowly, obscuring the

profession’s role in maintaining slavery’s commercial viability. This narrow

261. See FONER, RECONSTRUCTION, supra note 64, at 434-36, 603.

262. See generally LEON F. LITWACK, TROUBLE IN MIND: BLACK SOUTHERNERS IN THE AGE OF

JIM CROW (1998) (detailing the experience of African Americans during the Jim Crow

era); C.

VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (rev. ed. 1957)

(documenting the rise of segregationist laws after Reconstruction).

263. See Gary Peller, Legal Education and the Legitimation of Racial Power, 65 J. LEGAL EDUC.

405, 405-06, 412-13 (2015) (discussing the legal profession’s adoption of “universalist

rule-of-law ideology” to address racial inequality); see also sources cited supra note 17.

264. RUTI G. TEITEL, TRANSITIONAL JUSTICE 71 (2000).

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view demonstrates an approach to history that Robert Gordon has labeled

“willed oblivion.”

265

It leads lawyers to label slavery as “a historical accident, an

outlying event in the general stream, so atypical as not to be worth

mentioning, with no origins traceable to the prior period or implications for

the present one.”

266

From this narrow perspective, the law of slavery was

abolished by the Reconstruction Amendments (at least once those

Amendments were enforced). Slave cases transform from slave cases to

property cases about people.

By adopting such a perspective, lawyers limit the potential for addressing

slavery’s legacy. They see slavery as a set of a few laws rather than as a “social

system[].”

267

Acknowledging and addressing the continued role of slave

precedent in the American legal system is one step toward recognizing the role

lawyers played in supporting a society based on subjugation. Like the response

to any atrocity, legal recognition of slave citation will be “inescapabl[y]

inadequat[e].”

268

Lawyers nevertheless should take this opportunity to

reconsider the myopic perspective that has led them to continue to cite slave

cases more than a hundred years after the ratification of the Thirteenth

Amendment.

265. See ROBERT W. GORDON, Undoing Historical Injustice, in TAMING THE PAST: ESSAYS ON

LAW IN HISTORY AND HISTORY IN LAW 382, 386-87 (2017).

266. Id. at 387.

267. Id. at 409.

268. MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER

GENOCIDE AND MASS VIOLENCE 5 (1998).