Citing Slavery.

• Author: Simard, Justin

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 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."' (1) 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. (2) 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. (3) 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. (4)

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 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. (5)

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. (6)

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." (7) In other words, the court relied on an example of a contract that would now be invalid to explain why contracts are valid. (8) Similarly, in 2004, the Court of Appeals of Maryland relied on an 1862 case involving "certain specific advancements, in cash, notes and negroes" (9) as its chief authority for the "theory of mutuality" in collateral estoppel. (10) 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 Justice requires" and what "the public tranquility demands." (11) 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 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. (12)

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." (13) It even referred to the earlier court, which enforced a bequest for the transfer of enslaved people, as "[w]e." (14) 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. (15) Failing to engage slavery leads 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. (16)

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. (17) 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, (18) 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 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.

1. 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. (19) Appellate reporters in states that abolished slavery earlier also contain hundreds of slave cases. (20) 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." (21) American courts also provided the apparatus to secure millions of dollars of loans backed by enslaved people. (22)

   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, (23) accommodated themselves to slaveholding. Legal institutions continued to support slavery, even during the 1840s and 1850s, amid heightening sectional tensions over slavery's future. (24) 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...