Law Reviews

Citing Slavery in the BlueBook

A pending rule confuses legal and moral authority.

|

According to reports we've received from multiple sources, a new version of the BlueBook, not yet released, may require legal scholars to flag any cases whose facts involve slavery. The new Rule 10.7.1 (explanatory phrases and weight of authority) would provide that citations to these cases must add a parenthetical disclaimer like "(enslaved party)" or "(enslaved person at issue)." This position was recently urged by Justin Simard in his paper Citing Slavery, and it has apparently persuaded the student editors of the Bluebook. We suspect that other scholars will be encountering it soon.

Good intentions notwithstanding, this rule is wrong. It's legally misleading, morally misguided, and inconsistent with the goals of good scholarship. Journals should not impose it.

The rule is legally misleading. One ordinary reason to flag a case is to show that it carries more or less authority than we'd otherwise expect. But many cases involving persons held in slavery don't carry less authority in our legal system. Pulliam v. Osborne, on the priority of federal judgment liens, or Wiscart v. Dauchy, on avenues to Supreme Court review of circuit decisions, are usually invoked for their legal conclusions about liens or appellate jurisdiction, not for the fact that the property at issue included human beings. Indeed, part of why we now recoil from slavery in horror is how the legal system treated people like ordinary property. But it did. And as a result, cases involving enslaved persons sometimes state ordinary rules of law. Sometimes they state those ordinary rules particularly well, which is why lawyers and scholars still cite them many years later.

Nor were these cases universally abrogated by the Thirteenth Amendment. It's true that today's law treats the facts of these cases very differently, but in a sense that's true of nearly every old case. The Bank of the United States no longer exists, but M'Culloch v. Maryland hasn't been "subsequently abrogated by statute." Every litigant in every nineteenth-century case is now deceased, but those legal decisions aren't vacated as moot. Which legal transformations have which effects on prior law is an immensely complicated question, one not at all captured by the proposed rule.

(Simard argues that some slavery cases really are bad legal authorities, either because their authors were stretching the arguments to protect slavery, or because the issues were so sui generis as to be inapposite to other contexts. This is often true, but again, it doesn't call for a blanket rule. Pointing out a judge's flawed reasoning or distinguishing a case from its applications are the task of good lawyers and scholars. A blanket parenthetical doesn't help that task, and may distract from it.)

Whether law necessarily has certain ties to morality, such that morally repulsive cases always carry less legal weight, is a great and ongoing controversy. This isn't a debate the BlueBook can settle, or should try to. And the rule's attempt to do so may be misleading on its own premises: as Simard notes, the law of slavery surely permeated many cases in which enslaved persons weren't directly at issue. Gibbons v. Ogden, say, was about steamboats in New York, but the lawyers knew (and argued) that it also involved federal and state power over the slave trade. Propositions of law in cases more directly involving slavery are often repeated in subsequent cases, which might now be cited without a flag, thus "laundering" the original sources. So the flag may end up being more performative than informative.

The rule is morally misguided. Another argument for the rule might be that it avoids scholars' passing without comment over extraordinary evils. American slavery is indeed an evil of world-historical proportions. But it's far from the only evil found in the case reports. Lawyers cite dry propositions about procedure or interpretation that they draw from cases involving truly horrific personal abuses or government oppressions, whether at home or abroad. (The Missouri Supreme Court has already forbidden citations to one of its old cases on the state constitution's single-subject requirement, because that old decision upheld a school-segregation law later struck down by the U.S. Supreme Court.) Singling out the evil of slavery is understandable, but it also potentially downplays many other evils, some of which remain pervasive today. Some people might welcome a more thorough moralization of citation style; if so, this only proves the slipperiness of the slope.

The point isn't that, "if we start flagging slave cases, we might have to flag lots of other ones too." The point is that, once we recognize how many evils the law addresses, it's no longer plausible to claim that citing these cases unflagged reflects any indifference to their moral contents. Citing the appellate-jurisdiction holding of Wiscart doesn't show indifference to slavery, any more than citing the required-party holding of Republic of Philippines v. Pimentel shows indifference to the crimes of the dictator Ferdinand Marcos. Abstracting away from circumstances is what law does, sometimes for the better and certainly sometimes for the worse. It lets us govern human experience by somewhat consistent rules, by treating only a few factors at a time as legally relevant. (From the crooked timber of mankind, no straight thing was ever made.) If that kind of abstraction is itself immoral, or if it tends to weaken our moral instincts, that problem goes so far beyond slavery as to render such a limited parenthetical requirement a mockery of those other evils.

Nor is the rule any cure for that abstraction. If these parentheticals are to be applied equally to Wiscart, Dred Scott v. Sandford, and Somerset v. Stewart (declaring slavery illegal in England), then they can't convey any consistent moral message about the cases. And to the extent they do try to convey a moral message, the rule may actually undermine the intellectual distance we ought to have from the law. Sometimes our positive law really was, or is, abhorrent. Flagging the separation of moral and legal authority—as if that's noteworthy, as if they should be expected to run together—encourages a kind of complacency as to legal rules whose evils aren't yet so widely appreciated. As H.L.A. Hart once wrote, describing a case in which Nazi law had shielded the defendant's abhorrent actions:

Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it. . . . The vice of this use of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another.

The blanket rule is unscholarly. A third argument for the rule might be that it informs the reader of something true. Legal scholars cite past cases to document the truth about the legal past, and sometimes documenting that truth effectively and accurately means noting the crucial role played by slavery.

But sometimes not. The point of a blanket rule on parentheticals is precisely to ignore whether or not the connection to slavery is intellectually relevant in context. This is a judgment that authors, editors, and readers must make as a matter of substance, in evaluating particular cases—not a question of style that should be imposed on them as a matter of course. When it advances the argument to note the role of slavery in a given citation, authors and editors can already include it. When it doesn't, including the parenthetical anyway is in tension with all of their other reasons for writing and publishing scholarship. (We suspect that not a few authors, rather than including these parenthetical asides, may simply stop tracing their chains of precedential authority back before 1865—which is merely a different way of hiding the role of the past.)

Some scholars might use their legal scholarship to advance a program of moral reform, to which these judgments of intellectual relevance might play only a subsidiary role. We profoundly disagree with this path; but this, too, is a debate the BlueBook can't settle. Nor should it try to: a mere style guide shouldn't rule substantive arguments of law or morality out of bounds. If the BlueBook editors want to start describing a future legal system in which morally disfavored law is flagged—perhaps citations to disfavored Amendments or disfavored Justices' opinions ("(opinion of Taney, C.J., racist)")—nothing can stop them. But those kinds of choices would make the BlueBook a worse guide to American legal citation, and they'd reflect an abuse of the buyer's trust. We hope that serious scholars, as well as serious journals, wouldn't follow along.

Why care? We feel some discomfort about writing this post. Slavery was and is monstrous, and we are not apologists for it. We simply believe that the intellectual enterprise of legal scholarship, and the contributions to knowledge that it can make, are desperately important. Manipulating the content of that scholarship for ends other than truth-seeking—even just a little bit, even hidden away in the footnotes, even for a good cause—is a breach of scholarly trust. It certainly shouldn't be demanded of scholars by the publishers of A Uniform System of Citation.

NEXT: Originalism and Accidental Outcomes

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. How about a rule related to a pet peeve: One does not put whole sentences or paragraphs in parenthesis.

    1. Good Idea. (Yes, that is really annoying. Some lawyers just go on and on and on in a parenthetical, when they should be getting to the point in the main part of the text, or explain the case. And besides, can’t the judge just read the case himself/herself. If it takes a whole paragraph to describe the case, then you are not doing your job as a lawyer. So you have a great idea, ban long parentheticals.)

      1. I mean, parentheticals are bad, but footnotes are the worst.1

        1. I cannot tell you how many times I have seen a young associate bury the most important points of the brief in long footnotes. Not to mention that overuse of footnotes breaks up the readability of a brief (or motion, or any pleading). Perhaps the only greater sin is the overuse of emphasis; there is something extremely disconcerting about reading something that is not content to just use the occasional underline, but to rapidly shift from underlining to italics to bold because every single thing in the brief is just so very important.

        1. I go back and forth on footnotes. I used to be a pro-footnote purist, because I was a history major and externed for a judge 1L summer who really liked them. But once I got into practice, I realized it is better to have the main points of authority above the line. At the same time though, string cites above the line are bad, and all web addresses need to be in footnotes. So I don’t like citation systems that completely forbid them.

          The guiding principle for citations should be simple: make sure the reader can understand the importance of the source and can quickly find it while not undermining the overall readability of the brief/memo/opinion/article/book, etc.

          As for emphasis sins: I’ve seen it escalate from italics, to bold-italics, to bold-underline-italics. Luckily I don’t believe I’ve encountered bold-underline-italics-all-caps yet. I’ve also seen entire passages be emphasized. The only effective emphasis is typically to italicize the word or clause on which the party thinks an entire issue turns.

          1. I come from a history background, not law, but I encourage students to write as if they aren’t allowed to use footnotes. That forces them to make their argument in the main text, with the notes reserved for the “proof” (i.e., you think I made that quote up? There’s the source) and supplementary information. If you can’t make your argument in the main text alone, you’re not doing it right.

            Re. italics and bolding, I tell them it’s useful to think of that as yelling and waving your arms to indicate something important. Do it sparingly and it has great effect. Do it too much and the reader tunes out much like you tune out a street corner nut yelling about the deep state.

            1. Perhaps we can spare the virtue signaling anent the over use of histrionic font?

            2. I came to law from a history background and agree with the above.

              Footnotes should lift right out. Even without the footnote, the reader should still get your point, the judge should still agree with you. The footnote is a good place to put information that you can imagine introducing with, “I did too cover this!”

              I think for every page of the document, you get to emphasize one word in the document. And if you find yourself wanting to emphasize an entire quote, you’re doing something wrong.

        2. I see you misappropriate my snark. No need for attribution. Just send money 😉

        3. Listening to a podcast, I heard about a blind judge who didn’t use footnotes and if I recall correctly the lawyers on the podcast didn’t want to knowingly give him a brief with footnotes.

  2. No, it’s not “well intentioned.” I’m tired of destructive leftist ideas being described as “good intentioned.” They’re not. They’re malicious and evil.

    1. Absolutely right, it is not well intentioned. It is designed to force lawyers to speak only the way their betters wish them to speak. Next, there will be a requirement that all briefs contain some supposedly anti-racist message somewhere within the concluding paragraph.

      1. “Absolutely right, it is not well intentioned. It is designed to force lawyers to speak only the way their betters wish them to speak. ”

        Open wider, clingers.

        — your betters

        1. Why would my betters even deign to speak through you?

          1. If you could understand, they might not be your betters.

            1. Artie continually makes the category error of believing himself to be one of our “betters” which is why he so confidently speaks for them.

              If he ever gets what he fervently hopes for, he’ll find that a useful idiot is useful, but when no longer so, is just an idiot.

        2. To paraphrase William Shakespeare, RALK’s posts are a tale, told by an idiot, signifying nothing.

          They literally have zero substance. It’s like cotton candy if you leave out the sugar.

    2. “They’re malicious and evil.”

      Well, you would know about those subjects since you routinely describe how you want to kill people you disagree with.

      1. Aktenberg78 calling out people as being malicious and evil.

        Irony is dead.

        1. Yes, I believe irony was someone he had planned to kill in his cleansing fantasies.

        2. Irony died with the invention of permanent press fabrics.

          1. But no! Irony lives. We must also ban linen.

    3. Even when not “malicious and evil,” they are far too often ill-informed. One of the main issues I have with so much of this kind of thing is the unwillingness to point out to the person insisting on the change that he or she is just wrong. That’s how people learned things in the past, but it seems we fear pointing out such things to the participation-trophy generation.

      1. …they are far too often ill-informed.

        If you’d spent the bulk of your time in school learning political correctness, you’d be ill-informed too.

  3. Indeed, part of why we now recoil from slavery in horror is how the legal system treated people like ordinary property. But it did. And as a result, cases involving enslaved persons sometimes state ordinary rules of law.

    That is the heart of the matter. The moral problem with slavery was that it treated humans like chattel, not that the law regulates ownership and transfer of chattel. We banned slavery with the 13th Amendment. That does not mean there is anything immoral about the legal rules of chattel stated in those cases. There is nothing immoral about applying those rules to modern day chattel, like cars or computers.

  4. “The more I think about it, ol’ Billy was right” – – – – – – – – –

    1. [The law] lets us govern human experience by somewhat consistent rules…

      Another commenter (see above) talked about this (the proposed citation rule) being a “destructive leftist idea.” I agree. It is destructive of the rule of law. Leftism, being an essentially criminal ideology, seeks removal/destruction of the rule of law. Leftists would rather get rid of the “somewhat consistent rules.”
      (Honest) lawyers/judges is all that stands between leftists and their goal.

  5. Gibbons v. Ogden, say, was about steamboats in New York, but the lawyers knew (and argued) that it also involved federal and state power over the slave trade.

    Don’t you mean “the trade in enslaved persons”?

    1. Your need to control via language is noted.

      1. Clingers’ embrace of “court packing” to refer to Supreme Court enlargement — which is to be conducted in scrupulous compliance with all relevant law and in congruence with ample precedent — makes your comment silly.

        1. Also ample in precedent is the use or attempted use of court packing to treat the court as what all politicians view it as: a crypto legislature, rather than a bullwark against government growing its own power at its own fancy sans the pesky amendment process.

          1. Nothing in the rules of Jenga prohibit smashing the tower with your fist and ending the game because you think someone else might win, but it does entirely miss the point.

  6. Since I have never, in three years of law school and thirty-seven years of practice, ever cited a case involving an enslaved person, and cannot foresee ever doing so, I have to wonder what the purpose of this rule actually is. Social signaling? Protecting people from the “harm” and “pain” of unknowingly looking up a case cite and finding that the case involves slavery?

    This is just silly. And you know it will simply open the door for additional similar demands.

    1. Much of the Bluebook is divorced from the needs of ordinary practice.

    2. You must not practice in a Southern state. It is very difficult to discuss the origins and backgrounds of many rules concerning personal property, inheritance, gifts, and even negotiable instruments in Southern states without running into cases that deal with slavery in one form or another. I cite such cases if not routinely, at least periodically.

      And those cases turned up long after 1865. There are plenty of post-thirteenth-amendment cases in Tennessee that involve transactions that originated before or during the war in which, e.g., A gave a note to B in connection with a transaction involving the transfer of slaves; either A does not pay the note, and B (or in many cases B’s successor) sues after the war to collect the note (statutes of limitation were suspended during the war), or sometimes there is a different issue, such as “A tried to pay me in Confederate money and that wasn’t a valid tender.”

      That is merely one of numerous examples. This kind of rule would blackball huge swathes of old precedent in many states.

      1. You are correct. I practice in New Jersey. And although there are NJ cases on slavery as late as the 1850s, no one ever cites them. It is rare to see a case from before 1900 ever cited.

        1. Sure, needing to cite a nineteenth-century case is rare, but there are some odd places where Tennessee doesn’t have good modern decisions, or at least where the most factually analogous case is 100-plus years old, for whatever reason. And tons of those cases here either involved a slave-related transaction or at least refer to slaveholding (many more, I would imagine, percentage-wise, than cases from NJ in the same era).

    3. You are confident you recall every case you have cited in 40 years?

      Doesn’t sound like much of a law practice.

      1. One does not need to recall every case they have ever cited. Just that they have never cited a case from before 1865 or so. I can confidently say I’ve never done that because they are so arcane and removed that I would find an alternate authority for the same proposition if at all possible. Frankly, about half the states didn’t exist, and thus didn’t have judicial systems, that far back.

  7. [Irony alert] I think we need additional parenthetical statements: (Jewish) for example. Indeed, why not require reference to the race and gender of every person involved in the case. Also, the season of the year when the arguments were held. The more rules we add to the Blue Book, the better. Complete information is always better.

    1. I wan’t to know what everyone was wearing.

  8. A brave stand on an irrelevant issue! Bravo!

  9. I predict that practitioners will ignore it. Most of them, if they have a bluebook at all, have an outdated one and they revert automatically to the basic Bluebook citation forms, ignoring all the fine points, and generally following the only real rules: (1) use a form that doesn’t look weird and informs the reader how to look your authority up; and (2) don’t use inconsistent forms on the same page. I predict that most article authors will ignore it, though many won’t kick up a fuss if the law review editors put it in. I predict that most law review editors will ignore it.

    1. “I predict that practitioners will ignore it.”

      I also predict practitioners will ignore it. Do you know why?

      Because people engaged in the practice of law aren’t citing cases about slavery.

      It’s rare for me to cite a case before 1990 in the PRACTICE of law. And you are asking me about rules for citing cases before 1890?

      (Okay, one time in the last five years I cited a state supreme court case from 1895 to make the point that the rule in question was so old and well-established that opposing counsel was a moron for not knowing it. With nicer language.)

      1. “And you are asking me about rules for citing cases before 1890?”

        Many controlling real estate cases in Ohio are from the 19th century.

        The railroad era created a lot of law.

        1. Great. Yay for that!

          I know you like to be cantankerous, Bob, but how often do practicing attorneys CITE those cases in their briefs and motions? Sure, I had a case that touched on admiralty a while back, and I had a few cases go all the way back to the early 1900s (and one that was 1880), but the general rule in practice is you always use the most recent, on-point case.

          In other words, you don’t use the controlling case from the 19th century when there is a case with the same principle from 2015.

          Seriously, every single legal principle that remains good law is better cited to with more recent and controlling authority if you’re a practicing attorney. Unless you’re making a point that opposing counsel is a doofus, you are rarely citing to the CREATION of the legal issue, but are instead citing to the MOST RECENT ON-POINT APPLICATION.

          1. I have cited authority from the 1700s a number of times in expression cases. It seems an effective method to demonstrate that an argument has been rejected for more than two centuries.

          2. FU loki

            I was just making an observation about an area most don’t practice in. But be your usual rude self.

            1. I say you’re cantakerous, and you reply with FU, and I’m the rude one?

              Just to reiterate- I made the completely obvious (and hopefully not too controversial) point that in the practice of law, attorneys are rarely, if ever, citing cases from before the Civil War.

              And you, so helpfully, are arguing the point? Because of course you do.

              In the practice of law, it is exceptionally uncommon to be citing cases from more than 150 years ago. Even railroad cases prior to 1887 have to be viewed with skepticism given that there was kind of a major even then.

              So, FU Bob. Seriously. And literally. And with your fourth-dimensional chess. And your nihilitsic attitude. KTHXBYE!

      2. FWIW, though it isn’t common, I have certainly cited rules of law that I contended were controlling that were pre-1890. In some areas I have practiced in, such as international human rights law, it’s actually somewhat common.

    2. Your prediction is likely correct. Do you know why? Because 99.9% of the practitioners I deal with ignore virtually everything contained in the bluebook. They either use their own internal firm styles, the styles followed by the state’s courts, or in some cases, no recognizable style at all.

      1. ” or in some cases, no recognizable style at all.”

        Some cases?

        You are truly generous in your estimation of numbers, sir.

        1. I was being tactful

      2. Your prediction is likely correct. Do you know why? Because 99.9% of the practitioners I deal with ignore virtually everything contained in the bluebook.

        Yup. It is quite possible that the last time I consulted the Bluebook was my last day of law review. I’ve got 20 years under my belt — which I think is enough that my personal experience has some meaning — and I don’t think I’ve ever encountered a judge who cared. Be consistent, and be accurate,¹ and judges couldn’t give a crap.

        ¹ A good rule of thumb is that cites should probably go to cases that actually exist, and preferably to the actual pinpoint that contains the point one is citing the case for, and even more preferably to a case that’s still good law.

  10. We simply believe that the intellectual enterprise of legal scholarship, and the contributions to knowledge that it can make, are desperately important. Manipulating the content of that scholarship for ends other than truth-seeking—even just a little bit, even hidden away in the footnotes, even for a good cause—is a breach of scholarly trust.

    Baude and Sachs are here confronted with a hard-to-evade invocation of historical context, and they don’t like it. Of course they don’t. It would notably complicate legal scholarship if lawyers were forced to confront in historical context issues which professional historians are better qualified to evaluate than the lawyers are.

    At the very least, lawyers insist that any such entanglement with history ought to be optional, with control of invoking the option entirely in their own hands. Here Baude and Sachs attempt to speak with the authority of experience, to rectify a blunder by less experienced colleagues, whom they take to be insufficiently clued in.

    I do not know if Baude and Sachs count themselves originalists. They have written in defense of originalism, with more nuance than many, and I respect them for that.

    I have seen that the entire originalist enterprise in legal scholarship has become increasingly dependent on feverish efforts to keep actual history out of it. Earlier versions of their theory forced emendations, following misguided attempts to embrace history less critically. That experience taught the legal profession the need for a more judicious, not to say paradoxical, focus.

    What the profession learned was that the result it was after was an approach to history tuned just right. They wanted to invoke history to manage cases, but avoid loss of control to any intrusion of historical context they could not manage themselves, with no more than legal expertise. A lot of scholarly legal thought went into that problem.

    What answered the need turned out to be a result easy to describe, but hard to manage—a legal doctrine sufficiently history-dependent to decide the case; not so history-dependent that historical expertise would become mandatory. With so-called textualism they found that doctrine.

    Now, out of nowhere, comes willy-nilly an unwanted, unmanaged historical intrusion which threatens notably to complicate that project. No wonder the authors are upset. In this cri de cœur, Baud and Sachs seem to be crying out, “Keep your damned history out of our originalism!”

    That seems unwise. If originalism is to mean anything over the long term—if it is not after its present boom to fall by the wayside in discredit—it must come to terms with the complicated problem of historical context. No doubt, if that were broadly recognized throughout the legal profession, originalism would presently become a smaller movement. But that isn’t recognized, for exactly the reason that few if any lawyers or judges have been trained to reason historically.

    So for now, a great many lawyers view originalism—and specifically textualism—as an astonishing, readily accessible modern convenience—the most flexible method ever devised to deliver judicial constraint. The legal profession can hardly believe its good fortune over so empowering a discovery. It does not welcome news to the contrary.

    1. I don’t get it. Are you saying that adding a silly and unnecessary parenthetical “come[s] to terms with the complicated problem of historical context” or is this really just a long-winded criticism of textualism — but without any substantive points? Because, really, I can’t see how telling me (in two words, no less) that an ancient property case involved slaves is going to do all the heavy lifting you seem to think is required for “historical context.” Jeez, the reader can just read the damn case, can’t he?

      1. The reader CAN read the case, it is true. But don’t you think it is a fact that many readers do not have time to read every case cited by a law review article?

        1. I only meant to do so if the reader needed historical context that was divorced from the intent of the original article. In other words, if that author felt that it was important to mention that X case concerned slavery, that person should feel free to do so. Not just put in a parenthetical because some Harvard book demands it.

          1. Perhaps the point is that when you claim originalist intent for the original article, then historical context becomes mandatory, or you are just making stuff up. You know, it’s a system of constraint, right? Not a system of boundless empowerment?

      2. I don’t get it.

        That’s because Lathrop doesn’t really know what he’s talking about, and just likes to pretend that historians are actually qualified to address legal issues.

    2. At the very least, lawyers insist that any such entanglement with history ought to be optional, with control of invoking the option entirely in their own hands.

      We have clients whose rights are at stake. Legal briefs are not a venue for virtue signaling and academic wokeness.

      This has a certain relationship to Prof. Volokh’s ongoing fights over the n-word, and especially to his example (which I tipped him off to) about Johnnie Cochran using the word in the OJ Simpson trial. When you are in a legal case, you sometimes have to say things that aren’t pretty, that may offend others, and that certainly would get you in trouble in the cloistered, safe world with the padded walls that is academia. We owe a duty to our clients, not to the political sensitivities of academics.

      1. Legal briefs are not a venue for virtue signaling and academic wokeness.

        Not with that attitude.

  11. Maybe we need a rule on how abortion cases are cited as below: (genocide), (legalized murder), etc.

  12. “You will virtue signal, whether you want to or not.”

    1. You are required to have 30 hours of volunteer work to graduate.

      1. Does mostly peaceful protest count towards that?

  13. “We simply believe that the intellectual enterprise of legal scholarship, and the contributions to knowledge that it can make, are desperately important.” All you are really saying here is: “We think legal scholarship is important.” But you’re doing so in twenty-two words instead of six. Which is one illustration of why legal scholarship is rarely important, and why almost no one reads it.

    1. (Another illustration is that you wrote fourteen paragraphs about an unreleased Bluebook rule.)

  14. There is nothing wrong with this post.

    But its criticisms are wrong. Slavery was THE main flaw in the American system, which was founded on the idea that people are endowed with certain inalienable rights, including autonomy (the right to representation) and as well as protection for life, liberty, and the pursuit of the happiness.

    Slaves were denied all of the above fundamental inalienable rights. In the context of the history of the United States, slavery IS a unique case.

    Slavery is not some minor peripheral issue in the history of this country. Slavery caused the Dred Scott decision, which was an extremely misguided use of judicial review to invalidate a federal statute that greatly increased the probability of Civil War.

    This citation rule is based on a simple and correct proposition. There is no context where slaves being treated as property in a case is not “intellectually relevant.” Not in the United States of America. As far as the fear that scholars will not cite cases before 1865 if required to put such a parentheticals in their scholarship, this does not give scholars very much credit. What is there to be afraid of exactly? A scholar can explain why they think that the fact that a slave was the subject matter of the dispute is or is not important, if they want to discuss it. Or they can move on and not discuss it at all. In either case, the reader is alerted to the issue and can decide for themselves.

    The authors claim that they have felt “discomfort about writing this post.” But I do not think they should have. Their view is within the realm of good faith and rational discourse. But their view is wrong. The suggested parentheticals will increase rather than decrease our understanding of our legal history. And increasing understanding is the ultimate goal of legal scholarship.

    1. Let’s say there’s a 19th century breach of contract case involving the purchase of grain for a feedlot. It happens that the plantation that the feedlot sat on held slaves.

      In that context, the fact that there were slaves on the plantation would not necessarily be “intellectually relevant”. It might be intellectually relevant if we are discussing some rule of law involving slave plantations, but it wouldn’t be relevant to a legal rule about the time for delivery of grain.

      You WANT to take a political stance of “how can slavery ever not be relevant”. But the problem is this citation system is supposed to be used by lawyers, who are telling courts what they need to know about prior cases to decide the case they are deciding. And it may very well not be relevant to that work.

      Now, if Harvard wants to announce that they no longer want courts to use their citation system, then, fine, they can do whatever PC thing they want over there. They can require that you put a picture of a slave being beaten and tortured next to every citation of a pre-1865 case. And if law reviews want that, more power to them.

      But they are trying to force this on the legal profession, and force a definition of relevance that will do harm to OUR clients (because the end result of this is it will be harder to cite old cases even when they have relevance). Those folks at Harvard don’t have to worry about losing a lawsuit over this, and they don’t give a crap about harming others.

      1. Dilan:

        You are talking about the purchase of grain for a feedlot that holds slaves, but you aren’t saying whether the breach of contract somehow involved the slaves themselves.

        If the breach did involve the slaves, a parenthetical to that effect is reasonable. You call this political correctness? Well, I am sorry, but the way I see politically correctness is that it requires that we don’t say things that are true, because the truth offends. Here, you are saying we shouldn’t say things that are true, because they aren’t relevant. If anything, your argument has more in common with political correctness than my argument.

        1. How about you let lawyers practice law and try to reform all the actual problems of the world?

          1. This is the Blue Book Dilan. It is about legal scholarship.

            1. California Rules of Court 1.200:

              “Citations to cases and other authorities in all documents filed in the courts must be in the style established by either the California Style Manual or The Bluebook: A Uniform System of Citation, at the option of the party filing the document. The same style must be used consistently throughout the document.”

              Every copy of the Bluebook I have ever had has substantial portions dedicated to citations in court briefs. Harvard certainly wants the Bluebook to be the citation system in courts.

              So no, this isn’t just law professors. As I said, they can do what they want to. If their requirement is that a professor must flog himself and live 30 days in bondage before citing a slavery era case, that’s their business. But the Bluebook affects lawyers too.

              1. California Style Manual, Dilan.

                Also, no court is going to enforce obscure parenthetical citation rules based on the Bluebook. Judges are too busy and not interested in Bluebooking citations. That is something that student law review editors do.

              2. Dilan, this is not a good look for you. You’re the person who complains constantly that the Constitution (or maybe it’s just popular sovereignty) is practically irrelevant because slavery. It sounds like you must have a legal specialty which makes you unusually dependent on old precedents, but I’m having a hard time imagining what that could be. Give us some back-story. What’s going on?

        2. Forcing others to say irrelevant things is political correctness on steroids.

          1. No one is “forced” to do anything.

            1. OK, so we call it “attempted shaming into.” Still qualifies as political correctness on steroids.

  15. Someone should repeal the law requiring us to do whatever Bluebook says.

  16. This is just a guess, but I have a feeling that this is just a typical example of woke trendiness in academia.

    A little while back, there was a movement among some academics, who were clearly trying to virtue signal, that you shouldn’t say “slave”, because it supposedly denied the slave agency. You had to say “enslaved person”.

    Of course, the reality is that writers weren’t denying slaves agency, the slaveholders did! And this was connected, further back, to a somewhat healthy but also overbroad movement to recognize slave revolts and such. Put really simply, yes, slave revolts are important, and the slaves who participated in them should be celebrated. Further, the escapes of slaves in the Civil War, who again showed massive courage, helped force the issue of the Emancipation Proclamation and 13th Amendment.

    But Black slaves did not “emancipate themselves”. That’s just pure revisionist history, arising out of a political stance that says any recognition of, say, the contributions of Abraham Lincoln, the Union Army, or Lyndon Johnson to the cause of Black civil rights is a “white savior complex”. The problem is, sometimes there actually were white people who did big things for Black civil rights.

    So we get this. Notice the key point- they DON’T want you to say “involving slaves”. They are trying to force you to use the politically correct “enslaved persons” in your parenthetical.

    1. So at first I thought putting a rule in the Bluebook would be among the least effective ways to get anyone to think about the pernicious and ongoing effects of slavery and how it infected so much of American society. But then I realized that the mere proposal got at least two professors to write a post on the subject where they are thinking about slavery’s influence on the law (and other evils too) even if it is written in opposition to the rule change. The post will probably get a decent amount of comments and engagement.

      Maybe the editors know how to affect things after all.

      1. These folks know how to boil a frog.

    2. Slaves of course did lack agency. Because they were slaves. They were forcibly denied agency.

      Enslaved person IMHO sounds like it wasn’t too bad to be a slave, which of course is false.

      Slave sounds harsh. Its a better word to describe something harsh.

      1. I agree, Bob. If you know what slavery actually was, “slave” is horrifying.

      2. It kind of depends on what we mean by “agency.” It’s a very nebulous concept. Each individual slave was a unique person with unique thoughts, desires, hopes, dreams, beliefs, etc. They obviously could make literally make certain choices in their lives. But those choices would obviously result in a swift and extreme response from the enslavers. So whether those choices resulted in or could result in any fulfillment for themselves as individuals or as a group overall is a very tricky question.

  17. In a few years lawyers may have add after mentioning _Brown v. Board of Education_ a parenthetical (trigger warning: discrimination).

  18. If slavery is so bad why aren’t these people spending more of their time dealing with actual slavery that exists today in many Muslim countries instead of bringing up events that happened 150 years ago?

    1. Because there are the words of the narrative, and the goals of the narrative, and never the twain shall meet.

      Also you’re a racist and an Islamophobe!

    2. Because it is all about virtue signaling and not helping actual human beings. If they could step over a poor person on the way to their woke convention and look good, they would do it in a heartbeat.

      1. Bored, can you offer some way a person could advocate virtue without exposing himself to a charge of, “virtue signaling.” If not, I wish you would stop joining all the others who use it so much. It’s getting tedious. Anti-virtue advocacy at least ought to offer excitement. When it’s tedious, it’s hard to justify.

  19. In the first firm I worked for, one client was once sued by a woman, who claimed he (the defendant) had used his “Svengali like” powers to impress her into white slavery, and thereby violated her rights under the 13th Amendment.
    We made some noise about sanctions, and the case was dropped. After that, the associates joked that they were going to add to their resumes “Expert in 13th Amendment Law.”
    (P.S., that client later went on to become a reality TV star, and then ran for and achieved a high political office, which includes residence in a very fancy white-colored house on Pennsylvania Avenue.)
    Would that case be included in this new Bluebook rule?

  20. The linked article seems remarkably silly. The same argument (in reverse) would prove that 4th Amendment cases involving marijuana would no longer be good law were it to be legalized.

    Which is absurd unless the underlying logic of the case somehow turned on the unique characteristics of marijuana, vs contraband in general.

Please to post comments