Citing Slavery: The Long Tail of the “Peculiar Institution” in Case Citation
By Barbara Engstrom, Executive Director
A few months ago, I read an article about a Virginia case that made me do a double take – as in – wait, there’s no way this is an actual, real opinion. The case centered around a dispute over frozen embryos of a divorced couple. Generally, this type of issue is resolved during the division of marital property but because disposition of the embryos was not settled in the divorce, the judge evaluated whether the embryos could be considered “goods or chattel” and partitionable or subject to sale. In a preliminary opinion, Judge Richard Gardiner of Fairfax County Circuit Court delved into the far reaches of Virginia’s property law of “goods and chattel” to determine that, while the current version of the statute presumes “goods or chattels found on real property,” an 1849 version of the code encompasses “division of slaves, goods, or chattels.” His analysis of the slavery statute led him to the following conclusion:
The two main differences between Code § 8.01-93 and § 6 of Title 34, Chapter 124 of the Code of 1849 are the following. First, the title of § 6 is “Partition of slaves or other chattels.” Second, the language includes “slaves” as partitionable in kind or subject to sale. As shown, infra, by 1849 slaves were partitionable in kind or subject to sale as they were considered personal property not annexed to the land. Thus, “goods or chattels” also would have been partitionable in kind as personal property not annexed to the land.[1]
One may assume that since slavery was abolished in 1865 with the passage of the 13th Amendment, modern era court opinions do not rely on reasoning and precedent from slave statutes and cases. Michigan State Law Professor Justin Simard’s research shows, however, that Judge Gardiner’s opinion from March of this year is not as much of an aberration as one might think.
Researching Slave Citations
Professor Simard did extensive research on the most recent 35 years of case law and found that slave cases, which he defines as cases involving human property, are still commonly cited. He notes that there is no signifying flag or other symbol on Westlaw or Lexis to alert researchers that a case involves enslaved persons. He found slave cases cited by thirty state jurisdictions, most of the federal circuit courts, and the U.S. Supreme Court.
He notes that as recently as 2015, Justice Thomas cited an 1848 Kentucky slave case, Gaines v. Gaines, as precedent for the proposition that the judiciary’s role is the “ascertainment of private rights and the redress of private wrongs.” As such, this proposition is not controversial and has been stated in many cases, causing one to wonder why a US Supreme Court Justice would choose to pull language from a case whose subject matter had been abrogated by the 13th Amendment. “Courts routinely cite these cases without acknowledging that they may no longer be, in a formal sense, good law. More importantly, 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.”[2]
Dangers of Citation Slave Cases Without Context
While citation to slave cases without acknowledging the context of the decision may not affect the proposition for which the case is being cited, in some instances historical context can undermine precedential authority. Simard cites to several instances where courts pull legal support from slave cases for modern issues that, in fact, undermine or limit those suppositions when the full facts of the underlying slave cases are brought to bear. For example, Simard discusses a 1999 Tennessee Court of Appeals case regarding liability for destruction of a tire shredding machine which cited an 1841 slave case for historical analysis of liability when negligent conduct results in damage to personal property. The Court of Appeal’s cursory account of the 1841 case alluded to damage to plaintiff’s slave when attempting to elude defendants. A full reading of the 1841 case reveals a horrific account of the terrorizing of the slave by the defendants and subsequent incompetent and inhumane treatment at the hands of a doctor.[3] The full reading also demonstrates why using the concept of a slave as property is antithetical to applying a theory of damages for the destruction of a tire shredder.
Normalizing White Supremacy
Many of the slave cases were written by judges who benefitted from, and had an interest in, perpetuating slavery. Citing to slave cases for modern precedent also carries the danger of normalizing white supremacy.
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. 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.[4]
The Long Tail of Slave Citation
In his research, Professor Simard found that about 80% of the slave cases he uncovered from the last 35 years did not mention the slave context of the case cited. He found slave cases cited in string cites, parentheticals, footnotes, and block quotes. [5] In addition to direct citation to slave cases, the nature of precedent means that one may be citing to slave cases without being aware. “I’ve done some analysis just with a sample of cases and concluded that 18% of all published American cases are within two steps of a slave case, so they either cite the slave case or cite a case that cites a slave case,” Simard tells NPR. “The influence is really, really extensive.”[6]
The Bluebook’s Response
One of the recommendations that Professor Simard makes in his article, Citing Slavery, is for the Bluebook to create a signal to indicate a case involves enslaved parties or slavery. In response, the 2021 printing of the Bluebook now contains the following guidance:
Rule 10.7.1(d) now covers slave cases. For cases involving an enslaved person as a party, use the parenthetical “(enslaved party).” For cases involving an enslaved person as the subject of a property or other legal dispute but named as a party to the suit, use the parenthetical “(enslaved person at issue).” For other cases involving enslaved persons, use an adequately-descriptive parenthetical.
Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.
Wall v. Wall, 30 Miss. 91 (1855) (enslaved person at issue).
Why Are Slave Cases Still Cited?
Because there is no clear flagging of slave cases in Westlaw and Lexis, some slave cases may be cited without understanding the underlying subject matter of the case. In other cases, attorneys or judges may assume that they can distinguish the “good parts” from the “bad parts” and still use the underlying legal principles without the taint of slavery. [7] While those are less intentional uses of slave cases, some judges, like the judge from the frozen embryo case at the beginning of the article are deliberately using slave cases for historical analysis of legal principles. As Professor Simard notes, “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.”[8]
Learn More: FREE CLE featuring Professor Simard
I encourage all of you to read Professor Simard’s article “Citing Slavery” in the Stanford Law Review and to watch a free CLE hosted by the King County Law where Professor Simard discusses his article and continuing research with the Citing Slavery Project. To view the CLE go to KCLL’s CLE and Events calendar at https://kcll.org/events/
For questions or further information contact the law library at services@kcll.org.
[1] See Opinion Letter, Honelyhline Heidemann v. Jason Heidemann, CL- 2021-0015372, Nineteenth Judicial Circuit of Virginia (Feb 8, 2023) https://abovethelaw.com/uploads/2023/03/Slavery-Opinion.pdf ; See also https://www.pbs.org/newshour/nation/virginia-judge-rules-human-embryos-are-chattel-based-on-centuries-old-slave-laws; https://www.nytimes.com/2023/03/16/us/virginia-slave-laws-embryos.html
[2] See Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79, 82 (2020)
[3] Id at 103-105
[4] Id at 112
[5] Id at 97-98
[6] Rachel Treisman, Slave Cases Are Still Cited as Good Law Across the U.S. This Team Aims to Change That (NPR June 14, 2023) https://www.npr.org/2023/06/14/1181834798/slave-cases-precedent-us-legal-system
[7] See Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79,109 (2020)
[8] Id at 110