[Thousands of cases involving enslaved people that lawyers and
judges continue to cite as good precedent, more than a century after
the 13th Amendment abolished slavery in the U.S.]
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SLAVE CASES ARE STILL CITED AS GOOD LAW ACROSS THE U.S. THIS TEAM
AIMS TO CHANGE THAT  
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Rachel Treisman
June 14, 2023
NPR
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_ Thousands of cases involving enslaved people that lawyers and
judges continue to cite as good precedent, more than a century after
the 13th Amendment abolished slavery in the U.S. _

State courts in every state highlighted on this map have cited cases
involving enslaved people in the 1980s or later., Citing Slavery
Project, Michigan State University

 

This story starts — but certainly doesn't end — in 19th century
Maryland, when John Townshend updated his will.

Townshend grew convinced at the end of his life that God would punish
him if he did not free the enslaved people he owned and give them all
of his property. But Townshend's relatives challenged his final wishes
in court, arguing that his decision had been the result of a delusion.

That 1848 case was the first U.S. appearance of what became known as
the "insane delusion rule
[[link removed]]," which remains
grounds for contesting wills to this day. And _Townshend v.
Townshend _itself has been cited in at least 70 other cases
[[link removed]] across the country
— from New Hampshire to California — over the years, as recently
as 2007.

It's one of thousands of cases involving enslaved people that lawyers
and judges continue to cite as good precedent, more than a century
after the 13th Amendment abolished slavery in the U.S.

Justin Simard, an assistant professor at Michigan State University's
College of Law, estimates there are about 11,000 such cases out there
— and about one million more that use them to back up their
arguments.

"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."

Simard has spent years documenting them, with the help of some two
dozen law students.

The result is the Citing Slavery Project
[[link removed]], a comprehensive online database
[[link removed]] (and map
[[link removed]]) of slave cases and the modern
cases that cite them as precedent. They expect to add the last of
their nearly 9,000 collected cases to the website this summer.

The project aims to push the legal profession to grapple with its
links to slavery, an overdue reckoning that Simard hopes will start
with lawyers and judges acknowledging their use of the troubling
precedents.

He says 80% of the time judges don't mention that these cases involve
slavery at all, either because they're unaware or uncomfortable.

"We're not saying don't cite them," he explains. "All I'm asking
people to do is just don't cite them without acknowledgement, without
thinking through whether it actually makes sense to cite them, which I
think is a pretty reasonable thing to ask."

NPR has reached out to the American Bar Association and American
Judges Association for comment.

As part of that effort, Simard successfully advocated for the Bluebook
— the country's legal citation style guide — to add a rule
[[link removed]] requiring
cases involving enslaved people to be labeled with a parenthetical,
just as moot or overturned cases are.

Where enslaved people were parties in a case, the citation will read
"(enslaved party)." Where they were the subject of a property or legal
dispute, the footnote should include "(enslaved person at issue)."

Simard says the feature has been used some 70 times in secondary
sources and by four different judges since the change took effect in
the 2021 edition
[[link removed]],
which he sees as an exciting first step.

The project also has an education and outreach component, including a
pilot program with a high school outside of Detroit.

"How do you fix this? It's not one simple thing, but I do think one
thing we can do that ... certainly is helpful is to make the
profession more diverse," he adds. "And so we're trying to use our
research and engagement to do that as well. But yeah, it's also making
it possible just to expose the problems so lawyers who want to engage
with it can and lawyers who don't want to might be forced to."

That, says those involved in the project, will help make the justice
system better for all who interact with it.

Justin Simard, Michigan State University College of Law, meets with
his students about the Citing Slavery Project. Nick Schrader/Michigan
State University

Simard first stumbled into this work by accident about a decade ago
while working on his dissertation, which was about the debt collection
work of a Georgia lawyer.

He wanted to argue that laws in the North and South share more in
common than we tend to think, by showing that Northern judges cited
this lawyer's cases even at the height of sectional tensions in the
1850s and 1860s. He found lots of examples of that — and of such
cases being cited as recently as the 2010s, which struck him as
strange.

"So I started doing more research and I thought I'd find just a couple
examples, but ended up finding [that] the more I looked, the more I
found," he says, adding that within a few months he'd found more than
300 examples of judges citing slave cases within the last 35 years.

The project grew over the years, especially as his students got
involved.

Together they comb through commercial legal databases, using basic
searches to pull out any cases that mention slavery, then reading them
in full, collecting relevant information — including the names of
the enslaved people — and inputting it into their database.

The team uses Harvard's Caselaw Access Project to connect their cases
to all of the others that cite them later on, painting a picture of
their lasting influence.

For example: The concept of adverse possession, or squatter's rights,
was first extended to personal property in the form of enslaved
people. Separately, a 19th-century case in which a slave-owner sued
for damages over injury to his personal property was invoked in 1999
[[link removed]] by a tire shredding
company after its machinery was damaged by a third party.

"Slavery is all over the place," Simard says. "Part of the goal of our
project is to make sure that influence is accounted for."

He says it's interesting to see how many cases from outside the South
are linked to these slave cases, and how frequently they appear in
private law — things like contracts, trusts and estates, mortgages
and so on.

The collection shows that many of these cases involve regular
commercial transactions, which Simard says is part of the reason
they've been ignored.

Recent Michigan State law graduate Bret Bicoy estimates that he's
personally collected somewhere between 3,000 and 4,000 cases during
his time working on the project.

He told NPR over email that his biggest takeaway is simple: While many
people might associate the word "slave case" with _Dred Scott _or
rulings on the institution of slavery itself, the vast majority of
cases aren't that at all.

"You see enslaved persons having been listed in someone's will right
alongside their cattle, or their horses. You see people who took out
mortgages on human beings the way we do with homes. You see people who
sued the person who sold them an enslaved person because they deemed
said enslaved person to have been 'faulty,' just like you may sue
someone for dishonestly selling you a faulty car," he wrote. "They
are, unequivocally, the most dehumanizing and despicable documents I
have ever read."

He said sometimes he'd have to "slap and remind" himself that all of
these were real human beings, not just words on a will.

"I hope our work can help break the legal profession out of that very
same trance," he added.

Editors from the Michigan State University College of Law have
collected thousands of cases involving enslaved people. Citing Slavery
Project, Michigan State University

There are other troubling areas of law that need to be similarly
investigated, Simard says, pointing to racist opinions that are cited
as a matter of fact in many immigration and Native American law cases
today.

But, he points out, their problematic foundations are not necessarily
a big secret.

"What's unique about slavery is that many of these cases are still
just considered basic commercial law cases ... they've kind of
permeated into nearly every area of law, and no one has really
accounted for that," he says.

Many other countries have gone through some sort of truth and
reconciliation process to address similar harms, he adds, like South
Africa after apartheid and Germany after World War II.

The U.S. hasn't done that, Simard says. The country has continued to
cite and normalize slave cases long after the Civil War and even after
the racial reckoning of 2020, which spurred many institutions to
grapple with the darker parts of their histories.

"It's very strange if people are tearing down a monument to a slave
owner across the street from a courthouse where some judge is secretly
citing cases that were designed to [benefit them]," Simard says. "It's
like these little monuments all left scattered across our case
reporters
[[link removed].]."

He says the project has been generally well-received, though is not
without its critics.

Some law professors have criticized the Bluebook rule for being
"unscholarly" and violating academic freedom, while certain scholars
have questioned whether the context of the cases really matters (as
opposed to the law that's decided by them) and argued that the impact
of slavery should be left up to judges' discretion.

Simard says his research proves otherwise. Lawyers and judges have a
tremendous amount of power in society, he says, arguing that it makes
sense for the public to stop and think about how their authority is
constituted through slave cases and what that suggests about their
ability to be fair.

"It's no secret that outcomes for Black people are worse in our legal
system, and I think people are attuned to that," he adds. "And this
gives people another reason to question whether the legal system is
actually providing justice."

And while many people describe Simard's work as timely, he doesn't
necessarily agree.

"I think it would have been timely 50 years ago, and I'm afraid it'll
probably still be timely in 50 years," he says.

Michigan State University law students lead a presentation at Ferndale
High School. Justin Simard

The team is aiming to complete their final round of data entry in
July, but Simard says that won't be the end of their efforts.

"Some Black studies scholars argue that emancipation has never really
happened yet, and I think maybe I think about that the same way," he
adds. "The Citing Slavery Project will be done when the project of
emancipation is done, which may not be in my lifetime."

Simard wants more legal authorities to identify slave cases as such,
and has started reaching out to Westlaw and LexisNexis, the main
databases used for case research, to lobby for some kind of symbol.

He says their next big frontier is legal education. They've just
started a project that involves analyzing the textbooks used by law
professors to examine how much slavery has shaped the cases within
them and, they hope, eventually help authors and professors to rethink
how they discuss race in their curriculum.

And of course, there's the grant-funded pilot program that enabled
Simard and several students to meet with high school juniors and
seniors, teaching them about precedent and encouraging them to
consider law school for themselves.

They also bused a group of high-schoolers to the law school for an
event, and hope to continue reaching grade school students and
teachers through similar programming.

Taylor Hall, who was involved in the project before graduating this
spring, organized and helped lead the workshop at her own alma mater.
She told NPR in a phone interview a handful of students seemed
interested in becoming lawyers after the presentation.

"We're showing you this not to be like, 'Now it's your turn to become
a lawyer and solve all this or whatever in 10 years,' " she said. "But
hopefully the connection is students are able to say, 'What is the
legal field shaping now that we should be involved in?' "

African Americans make up 5% of the legal profession
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accounting for 13% of the U.S. population, Hall said — a bigger gap
than that of other minorities like Asians and Native Americans, who
are also underrepresented in law.

"When you meet new people, your perspective changes and you just learn
more and you start to see people as people," she added. "That's what
diversity and inclusion could do if we had more Black lawyers."

Hall says her experience with the Citing Slavery Project will stay
with her as she begins her career, with a job in corporate law.

"A lot of the laws I'll be dealing with are related to slave law and
case law," she adds. "I think moving forward, now that I have this in
mind, I'll be able to bring this perspective to a place where I'll be
like the only Black person in the room. I also know that's not my
complete burden to bear, but it's good to know I'll have that in the
back of my mind."

_RACHEL TREISMAN (she/her) is a writer and editor for the Morning
Edition live blog, which she helped launch in early 2021._

_Treisman has worn many digital hats since arriving at NPR as a
National Desk intern in 2019. She's written hundreds of breaking news
and feature stories, which are often among NPR's most-read pieces of
the day._

_She writes multiple stories a day, covering a wide range of topics
both global and domestic, including politics, science, health,
education, culture and consumer safety. She's also reported for the
hourly newscast, curated radio content for the NPR One app,
contributed to the daily and coronavirus newsletters, live-blogged
2020 election events and spent the first six months of the coronavirus
pandemic tracking every state's restrictions and reopenings._

_Treisman previously covered business at the Pittsburgh
Post-Gazette and evaluated the credibility of digital news sites for
the startup NewsGuard Technologies, which aims to fight misinformation
and promote media literacy. She is a graduate of Yale University,
where she studied American history and served as editor in chief of
the Yale Daily News._

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