The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.