Slavery

Professor Justin Simard Writes In on The Importance of Citing Slavery

A response to our criticism of a proposed Bluebook rule.

|

Professor Justin Simard of Michigan State University has graciously provided this response to our previous post about slavery and the Bluebook:

The Importance of Citing Slavery

Why the addition of a rule acknowledging the context of slave cases to The Bluebook will improve legal writing.

Justin Simard

In my recent article Citing Slavery, 72 Stan. L. Rev. 79 (2020), I recommended that The Bluebook require that citations of cases involving slaves include an explanatory parenthetical acknowledging their context. Will Baude and Stephen Sachs have argued here that the rule is legally misleading, morally misguided, and unscholarly. Josh Blackman has made similar arguments. They have graciously allowed me to respond.

Let's start with an example. In Garrett v. Burris, 735 S.E.2d 414 (N.C. Ct. App. 2012), the North Carolina Court of Appeals held that common law marriage did not exist in North Carolina. The court relied in part on State v. Samuel, 19 N.C. 77 (1836), in which the court held that "the incapacity of a slave to enter into . . . contracts" meant that common law marriage could not exist. That reasoning was abrogated by the Thirteenth Amendment, but the Garrett court did not acknowledge the abrogation.

And indeed, the Bluebook rule requiring the acknowledgment of negative treatment would not have required the Garrett court to note the abrogation. That's because only the reasoning, and not the holding itself, was abrogated. Indeed, as Baude and Sachs point out, "[t]he Bank of the United States no longer exists, but M'Culloch v. Maryland hasn't been 'subsequently abrogated by statute.'" Baude and Sachs are right that the existence of the Bank of the United States is unimportant to the federalism principles in M'Culloch, but the analogy is faulty: slavery was critical to the holding in Garrett. It's legally misleading not to mention the slave context of Garrett.

Of course, some other citations to slave cases are less egregious than Garrett, and Baude and Sachs are undoubtedly correct that "[p]ointing out a judge's flawed reasoning or distinguishing a case from its applications are the task of good lawyers and scholars." But this argument works just as well for other explanatory phrases and weight of authority statements in The Bluebook. If lawyers always correctly described the import of holdings, then there would be no need for parentheticals noting subsequent negative authority. Garrett and dozens of other cases I highlight in my article show that relying on lawyers to do their job well has not been enough. A Bluebook rule will help lawyers abide by these standards.

The new rule will work the same way as other explanatory phrase requirements under Rule 10.7.1. Lawyers, judges, and scholars are not prevented from citing abrogated cases, they just need to acknowledge that abrogation and perhaps to explain why such authority is still reliable. The slave case parenthetical would work the same way. To paint this proposal as an attempt to "manipulate[]" the content of scholarship is to misunderstand it. Baude and Sachs suggest that scholars might stop citing slave cases because they do not want to acknowledge that they are citing slave cases. But why? If slavery is irrelevant to a holding, scholars remain free to cite that case and to explain why, just as they can cite cases that remain relevant despite negative subsequent treatment.

Baude and Sachs maintain that my proposal is "legally misleading" because it will lead some judges and lawyers to "launder" precedent by citing non-slave cases that restate propositions originally stated in slave cases. Josh Blackman says it will "cancel" cases. I have more confidence in judges and lawyers: I believe that they will not shy away from acknowledging the context of the cases that they cite and that they will continue to cite those cases when they "state ordinary rules particularly well."  Indeed, twenty percent of the citations I found involved explicit acknowledgement or discussion of the slave context of cases. I do, however, agree with Baude and Sachs that further research on the descendants of slave cases is necessary; I am currently studying indirect citation and the legacy of slave law.

In addition, Baude and Sachs suggest that the new Bluebook rule is "morally misguided" because flagging the context of slave cases implies indifference to moral outrages in cases not involving slavery. They mention Republic of Philippines v. Pimentel, which involved claims by thousands of victims of human rights abuses. But the Thirteenth Amendment was not ratified in response to those human rights abuses. The Bluebook rule does not rank these or other horrors, but instead recognizes the central role of slavery in our legal tradition. The case law of slavery is unique in its pervasiveness, in the applicability of many of its doctrines to different areas of law, and in its explicit repudiation by Constitutional Amendment.

Finally, Baude and Sachs argue that my proposal is "unscholarly" because it will "rule substantive arguments of law or morality out of bounds." The Bluebook has no such power. Scholars will still be free to cite slave cases and make whatever legal arguments they wish. Instead of interfering with truth-seeking, the parenthetical will provide true facts about the context of cases. The Bluebook rule will achieve exactly what Bluebook rules should: it will encourage lawyers and scholars to cite sources carefully and accurately.

Whether one agrees with Simard's conclusions or not, let us suggest two things.

First, we think scholars and editors ought to judge for themselves whether a precedent's relationship to slavery merits comment, and if so what kind of comment it merits. For that reason, if the Bluebook does go forward with this rule, it would be much wiser to make it an optional rule, and for journals to recognize that the individual judgments of each scholar and editor should ultimately control.

Second, we think Simard's example of North Carolina marriage cases shows how a parenthetical is not a good substitute for legal analysis. To us, Samuel, the 1836 case, plainly asserts a general rule against common law marriage—outside the slavery context, both in England and in North Carolina. It considers whether any special rule applies to enslaved persons, as they lack any other legal way to marry; it concludes that the courts cannot make such an accommodation, though the legislature might. Whether Samuel was right or wrong about the law of its time, the Thirteenth Amendment in no way abrogates it. The court believed common law marriage to be unrecognized in North Carolina, with no exception for those held in slavery. After the Thirteenth Amendment, no one may lawfully be held in slavery, so the possibility of such an exception goes away.

Garrett, the 2012 case, then string-cites Samuel (among several other cases) as evidence that North Carolina does not recognize common law marriage. That indeed appears to be what Samuel says, and Samuel's refusal to make an exception for enslaved persons does not undermine its force as evidence for this purpose.

We encourage you to read the cases for yourselves. But readers of opinions or law review articles cannot do that every time. They depend on authors and editors to make judgments about which details will help resolve the question under review. More facts about cases are not always better, just as long articles are not always better than short ones. In our view, mandating an "(enslaved party)" parenthetical for Samuel would not help answer Garrett's question about common law marriage. And even if we are wrong about that, this remains the sort of substantive intellectual judgment that scholars and editors must make, and that a style guide cannot resolve in advance.

NEXT: ACA: The Lay of the Land

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. I think that not only is your analysis of the Samuel decision clearly correct (and Prof. Simard’s clearly wrong), but that the case actually serves as an excellent example of why this proposal makes no sense.

    Also, what’s the deal with “enslaved persons”? Did I miss a memo?

    1. “enslaved persons”

      Newest “woke” phrasing. “Slave” erases their humanity or something.

      I think “enslaved persons” is too wishy washy myself, “slave” is a strong, harsh term for a harsh practice. But I am not a woke leftist.

      1. No, that’s not the issue.

        The issue is that the word “slave” implies that slavery was a legitimate practice, whereas “enslaved person” implies that it was not. Slavery is a subset of kidnapping, and neither the victim of slavery nor the victim of more generic kidnapping is anything other than a free person whose rights have been egregiously violated. By calling that person a slave, you are lending legitimacy to the institution itself. The kidnapper, and the slavemaster, hold power over him by virtue of their superior ability to use force, but that’s it. Which is why slaves were within their rights to try to escape.

        There’s a lot of politically correct terminology that I’m not sold on myself, but this is not one of them.

        1. FWIW, I have seen Bob’s characterization made by woke people. There’s a broader movement to pretend slaves liberated themselves, had full agency, and that white or mostly white institutions like Abraham Lincoln and the Union Army deserve no credit. “Enslaved person” is part of that.

          And Bob is right- it actually makes slavery sound less bad. It’s an awful term.

        2. “word “slave” implies that slavery was a legitimate practice, whereas “enslaved person” implies that it was not”

          Equally nonsensical.

          Who is claiming in 2020 that slavery {US version or any other} was “legitimate”?

          1. Bob, the problem is not the relative handful of halfwits who today would still claim slavery was a legitimate institution. The problem is that terminology is still being used from the time when lots of people did think slavery was legitimate. It’s not that people intentionally use racist or other derogatory language; it’s that they simply don’t think through the origins of the terms that they are using.

            Now, you can take the originalist position that words still mean what they meant to people centuries ago, and that it is therefore better to say “enslaved person” because “slave” implies that the institution was legitimate. Or, you can take the living language position that times have changed, and that what words meant at the time of the framers is irrelevant to our understanding of what they mean today. And if that reminds you of another subject that has often been discussed here, it should, and further, it’s interesting that you and I both changed positions from that conversation to this one.

            But that is the issue, whether we are discussing interpreting the Constitution or using politically correct language: Do words mean what we understand them to mean today, or what people understood them to mean a century or two ago? And, if you’re an originalist, then “slave” does indeed legitimize the institution in a way that “enslaved person” does not.

            1. If “slave” implies slavery was legitimate, then why doesn’t “enslaved person” suggest that the person was legitimately enslaved?

              1. Because “slave” refers to status and “enslaved person” refers to something that was done to someone.

                1. I’m sure this all makes sense somehow.

                  1. OK, so you don’t understand the argument. If you think about it some more, it may come to you.

                    1. This isn’t an “understand the argument” situation. There isn’t really an argument here, just an assertion. People who reject the assertion aren’t failing to understand anything, they’re disagreeing.

                2. I did not interpret Solomon Northup as trying to legitimize slavery when he wrote Twelve Years a Slave. But then again, maybe “Twelve Years an Enslaved Person” just didn’t have the same ring to it.

                  1. And in which year did he write that?

                  2. I suggest the free status Solomon Northup enjoys while writing about himself somewhat shifts the connotations. To my ear, it’s notably different than referring to some third party held in bondage as a “slave.”

            2. Perhaps the term “National Slavery and Human Trafficking Prevention Month” implies that slavery and human trafficking are A-OK?

              https://www.fbi.gov/news/stories/national-slavery-and-human-trafficking-prevention-month-011020

            3. What exactly do you mean by “legitimate” anyway? Whether slavery was legal in the US before 1866, it certainly was legal in most of the world for thousands of years, and may still be quasi-legal in certain parts of the world now. Conscription and jury service are slavery by another name, and still legal in the US today. Will they be recognized as such in 100 years, and require new citations as “slavery”, just as that wikipedia change shows some people cannot differentiate “indentured servant” as a special variety of slave?

              Suppose the Universal Basic Income becomes the norm 100 years from now. Will people today, who have to work to survive, be known as “enslaved workers”, and will practically all cases prior to UBI be back-noted as “slavery”?

              1. That would be an ultimate perversity of the word. It is reality that forces you to have to shove food down your own throat to survive. That others create enterprises to allow you to do this easily rather than you building your own farm is not slavery.

        3. Then why not extend that to other people?

          Imprisoned person == prisoner
          Convicted person == convict
          Kidnapped person, robbed person, assaulted person == victim

          How far do you want to extend this? “Slave” is a perfectly cromulent word with thousands of years of history behind it, and anyone who thinks that words conveys legitimacy deserves to be confused.

          Let’s extend this to other similar examples.

          Enmarried person == wife, because marriage was tantamount to slavery until recently.
          Enslaved person == indentured person, because hell it’s close enough, let’s ignore the legal distinctions because indenture is not legal today.
          Enslaved person — apprentice because apprenticeship is different today.

          For that matter, how many practices do we have today which will not be “legitimate” in 100 years?

          Enslaved person == mandatory overtime worker
          Enslaved person == worker, period, once the UBI is implemented.

          1. Haven’t you heard of “incarcerated person” and “previously incarcerated person”?

        4. The issue is that the word “slave” implies that slavery was a legitimate practice, whereas “enslaved person” implies that it was not.

          How?

          By calling that person a slave, you are lending legitimacy to the institution itself.

          How?

          Which is why slaves were within their rights to try to escape.

          Was that intentional?

        5. “he word “slave” implies that slavery was a legitimate practice”. No. No it does not. What a ludicrous suggestion.

        6. “By calling that person a slave…”

          The alternative is to call them “enslaved”? And that’s better why? This strikes me as the silliest of all silly politically correct terminology. I also agree with Bob that “slave” speaks more directly to the harshness of their treatment. The person was not merely temporarily experiencing esnlavedness. They were being enslaved, and made slaves, by other people.

          “The issue is that the word “slave” implies that slavery was a legitimate practice…”

          Well, it was a legitimate practice at the time, and it’s in our original Constitution. Which speaks directly to the evilness of slavery! It was not just a few bad apples enslaving people, it was the systematic chattel slavery of humans in bondage, with the full knowledge and support of the state, including in recovery of their human property. By wishing away that government’s prior enforcement and legitimization of slavery is to lose sight of one of its most heinous aspects.

          1. NToJ, I wonder if you would argue the same way against historian C. Vann Woodward? In his historical work he memorialized a distinction in experience by using “disfranchised,” to refer to people never entitled to vote, vs. using “disenfranchised” to refer to persons from whom a right to vote had been withdrawn. I tend to think of that as a useful and enriching distinction.

            1. Perhaps it is. But here the project is not distinguishing between two different classes of people subject to slavery, but rather to get people to use a different word to refer to the same class. Which is fine, if there’s a reason for it. But the reason me provided so far seem pretty in persuasive to me.

            2. It’s entirely possible that C. Vann Woodward was being a complete jackass and that academics worry way, way too much about terminology (a point currently demonstrated by the term “Latinx”, which clueless academics love and actual Hispanic people don’t).

              1. See also: “jargon”

          2. The argument is that slave dehumanizes whereas enslaved person foregrounds their personhood.

            Similarly to illegal/undocumented, I don’t care enough personally and just switch my terminology for the audience.

            1. It’s not really similar to illegal/undocumented, because in the case of slave/enslaved person, the denotation is exactly the same, while illegal/undocumented differ drastically in denotation.

              So, while “undocumented” is a euphemism, “enslaved person” is simply redundant, while communicating exactly the same information with more syllables.

              1. Wait a minute, Brett. You said the denotation is exactly the same. Denotation exhausts the bandwidth of communication only among certain persons with notable developmental disabilities. But there you go, concluding it is, “exactly the same information with more syllables.” It is not.

                1. “Illegal alien” and “Undocumented Alien” both have different denotations, (Which are generally false for the so-called “undocumented”, but that’s another matter.) and different connotations. Which is why the latter is used by some people even though generally false.

                  But “slave” and “enslaved person” have completely identical denotations AND connotations. What we’re looking at here is an effort to generate different connotations, but it’s at an early stage, and has made no real headway as yet. Probably won’t make any headway, I’m guessing, because it’s so silly.

                  And, by the way, 780 on the verbal SAT, back in the 70’s when that meant something. I may have Asperger’s, but that doesn’t keep me from understanding connotations.

                  1. Perhaps familiarity breeds insensitivity. Suppose that people started using “bankrupt” as a noun, to mean “bankrupt person.” Would you say that there also the connotations are identical, or would you think instead that calling someone “a bankrupt” more strongly tends to reduce a person to their financial status than calling them “a bankrupt person” does?

            2. “The argument is that slave dehumanizes whereas enslaved person foregrounds their personhood.”

              Right, and my argument is that using “enslaved person” lets the institution of slavery off the hook. It makes it seem as if slaves were just experiencing a terrible but temporary condition, waiting for some (usually white) person to come along and free them of their bondage. The unfortunate history is that slavery was not just some thing that a few did to another few. It was a state-sanctioned institution that survived only because the government did legitimize it, including in the founding documents.

              In real life, there are no audiences where the distinction between illegal and undocumented matters (despite Brett’s parsing on this). It is only the sort of discussion that could happen online, or maybe among like-minded causeheads on a college campus. This is not about fighting PC language for the sake of fighting PC language. PC language is bad because it’s a weapon that is only used in the culture war, and engaging in it is just another means of perpetuating a long, hopeless cultural blood feud that can only be lost. To your point, you’re an adult who doesn’t care about the use of illegal versus undocumented. Yet you choose to use codes in certain company. Is this because you respect that audience? Because from my perspective you’re coddling them and talking to them as I would a child. Importantly, that other person insisting that you use special words is also up to something. They’re weaponizing vocabulary. Maybe it’s good intentioned. But it’s fucking wrong. It distracts an important issue and makes genuine useful interactions impossible. And it enrages the people it is weaponized against in a way (possibly intentionally?) to ensure they won’t engage back soberly and thoughtfully. Which sucks.

              In my view, if you don’t have the moral seriousness to engage with people who disagree with you on their own terms, you aren’t trying to engage with them at all, or learn from them. You’re just trying to pick a fight. Which is ok, I guess, but it’s not productive.

              1. Sure, that’s a legit argument. Others think that you need maximum humanization of the victims to indict the institution.

                These kinds of careful language parsing to avoid offending anyone ever in past or future reminds me of the committee meeting when I lived in a commune in grad school.

                In my view, if you don’t have the moral seriousness to engage with people who disagree with you on their own terms, you aren’t trying to engage with them at all, or learn from them
                I take this rout as well. I accede to the audience, absent someone trying to use semantics to beg the question (e.g. not pro-choice pro-abortion, AA is defined as racist, etc.)

                1. Those aren’t semantic attempts to beg the question, they go right to the heart of things: Are you properly described as “pro-choice” if you’re only pro-choice about one thing? Is there a non-argumentative definition of “racist” under which AA isn’t “racist”?

        7. “The issue is that the word “slave” implies that slavery was a legitimate practice, whereas “enslaved person” implies that it was not.”

          Ah, that’s just weird. I don’t get any such implication off it at all.

      2. The correct constitutional term is “persons subject to service or labor.”

    2. That “enslaved” caught me by surprise recently. Read a book, “The SS Officer’s Armchair”, about someone who took an old chair in for reupholstering and found its seat had been stuffed with documents from an SS officer. Good book, except for silly pop psychology speculation and the damned political correctness, such as “enslaved persons” and “enslaved workers” and “enslaver” (all in reference to American pre-Civil War slaves, not Nazi slaves). Turns out to be about five years old. “Slave” is too impersonal, doesn’t shove it in your face. Pisses me off partly because of its bad grammar. The only true “enslavers” were the original kidnappers, mostly Africans back in Africa; those who bought slaved were just slave owners. But also annoying because it is not applied to other occupations. “Enhired workers” anybody? “Enflamed structures” instead of “burning buildings”?

      I despise political correctness, and this new example confirms my belief.

      1. Thank you for mentioning that book in an earlier post. After looking it up I read it. It is a fascinating look into how Nazi Germany operated. I have some problems with it especially a rather superficial analogy between reconstruction era New Orleans racism and Nazi antisemitism.

        1. Yes, and the worst of that was surmising that his grandmother’s favorite chair somehow (a) disposed him towards being a Nazi, and (b) is why he stuffed his documents into the chair’s seat cushion.

          Sometimes a chair is just a chair, and a Nazi is just a Nazi.

          1. I thought he sewed the documents into a chair because a recent movie used a similar device to conceal an inheritance.

        2. But yes, a fascinating look into an “ordinary” Nazi and how the Nazi bureaucracy worked on a level seldom addressed.

      2. ” The only true “enslavers” were the original kidnappers, mostly Africans back in Africa; those who bought slaved were just slave owners. ”

        Why does stuff like this slide so easily from the fingers and lips of conservatives? (The answer also handles the question of how the American culture war has been, will be, and should be resolved.)

        When a slave had a child and the owner enslaved that new person, the slave owner was not “just a slave owner” (again, conservatives have such a way with words these days) but was, indeed, an enslaver.

        “I despise political correctness, and this new example confirms my belief.”

        I despise political correctness, too, which is why I call a right-wing bigot a right-wing bigot; a half-educated, superstitious Republican clinger a half-educated, superstitious Republican clinger; and a desolate, can’t-keep-up backwater a desolate can’t-keep-up backwater.

        I reject enabling our vestigial bigots to hide behind euphemisms such as “family values,” and “heartland,” and “conservative values,” “religious freedom,” and “family values.” Appeasing racists, gay-bashers, misogynists, White supremacists, immigrant-bashers, those who discriminate against atheists and agnostics, anti-Semites, and the like with political correctness is counterproductive and immoral.

      3. The only true “enslavers” were the original kidnappers, mostly Africans back in Africa; those who bought slaved were just slave owners.

        Think about it and you realize that it is actually monstrous. Under that principle a child born into chattel slavery becomes a birthright slave.

    3. Perhaps “murder victim” should be changed to “individual who was unlawfully killed.”

      More respectful to the person killed, you see!

      1. Person experiencing murderness.

        1. To steal a line from Kevin Williamson, Jack the Ripper was a peaceful pedestrian until violence erupted with a local prostitute.

    4. I suspect this is an attempt to conflate actual slavery, by force, with a contract of indenture, voluntarily entered into for a period of time.
      This will help blur the blatant lie of slaves being brought to Jamestown in 1619, when the fact is that they were indentured servants who sold their indenture to pay the passage to the new world.
      https://en.wikipedia.org/wiki/John_Casor

      Interesting note concerning Wikipedia;
      This is the text I captured April 15th.
      At this time (1665), there were only about 300 people of African origin living in the Virginia Colony, about 1% of an estimated population of 30,000. The first group of 20 or so Africans were brought to Jamestown in 1619 as indentured servants. After working out their contracts for passage money to Virginia and completing their indenture, each was granted 50 acres (20 ha) of land (headrights). This enabled them to raise their own tobacco or other crops.
      This is how it now reads
      At this time, there were only about 300 people of African origin living in the Virginia Colony, about 1% of an estimated population of 30,000. The first group of 20 or so Africans were brought to Point Comfort in 1619 as enslaved Africans. After working between 15 and 30 years, mots were granted their freedom to purchase land and start their own homestead.
      (this bit has been added)
      Although most historians believe slavery, as an institution, developed much later, they differ on the exact status of their servitude before slavery was established, as well as differing over the date when this took place. The colonial charter entitled English subjects and their children the rights of the common law, but people of other nations were considered foreigners or aliens outside the common law. At the time, the colony had no provision for naturalizing foreigners.

      Welcome to the revolution!

      1. A bit more – – – –
        The changes were made on October 29, 2020:

        Major restatements were from ‘indentured servant’ to ‘enslaved African’, from ‘Jamestown’ to ‘Point Comfort’ (perhaps to avoid searches including jamestown? Point Comfort is 40 miles downriver from Jamestown), from ‘granted land’ to ‘granted their freedom to purchase land’ (after serving an indenture, they were free by law, and no granting of the freedom to purchase was needed).

        Here is the link to the edit page
        https://en.wikipedia.org/w/index.php?title=John_Casor&diff=next&oldid=979332193

        Kind of proves my speculation in the original reply, I think.

  2. A while ago I mentioned in the comments here that I was struck by the difference between US courts and English courts in how they discuss precedents. US courts, at least in the judgments I read (which are admittedly almost all Federal), tend to refer to precedents as “X v. Y (holding …)”. English courts, on the other hand, tend to discuss precedents about a paragraph or two each, explaining some of the factual background as well as the holding.

    If prof. Simard complains about how the court in Garrett v. Burris relied on State v. Samuels, it seems to me that the real complaint is about the lack of discussion of the precedent. If the court had discussed State v. Samuels properly, they way prof. Simard does here, the potential issue would have been immediately obvious to everyone. The more common way of citing precedents, on the other hand, offers much more scope for lying by citation.

    1. The post explains how Prof. Simard mischaracterized the Samuel case: his description of Garrett is also misleading. The court didn’t “h[o]ld that common law marriage did not exist in North Carolina.” It noted in passing that North Carolina wouldn’t allow the creation of new common law marriages (citing Samuel and another case from 1897); it then held that the parties did not have a valid common law marriage in Texas. I am at a loss to see anything improper about omitting an extended discussion of the irrelevant factual background.

      1. I express no view as to the merits of that dispute (frankly can’t be bothered). The point is simply that adding a few more lines to explain the context of each precedent makes it easier for the reader to make up their own mind without having to go read the precedent for themselves.

        1. Here’s the relevant passage from Garrett:

          At the outset, we note that common law marriages cannot be created in North Carolina. State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897); State v. Samuel, 19 N.C. 177 (1836). North Carolina courts, “however, will recognize as valid a common law marriage ‘if the acts alleged to have created it took place in a state in which such a marriage is valid.’” State v. Alford, 298 N.C. 465, 473, 259 S.E.2d 242, 247 (1979) (citation omitted).

          I strongly disagree that it would have been better to instead write something like:

          In State v. Samuel, 19 N.C. 177 (1836), a slave named Samuel was tried for murder. He objected to the testimony of another slave named Mima, arguing that she was his common-law wife. The trial judge (Settle, J.) overruled this objection, and he was convicted. On appeal of this ruling, the South Carolina Supreme Court held that the state does not recognize common-law marriages.

          Similarly, in State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897), Messrs. Wilson, Ray, and Frender were charged with seducing women into sham marriages for the purposes of carnal intercourse. They moved for arrest of judgment on the grounds that the marriages were consented to by the parties. The South Carolina Supreme Court (Clark, J.) held that a valid marriage in South Carolina requires solemnization beyond the simple consent of the parties.

          In State v. Alford, 298 N.C. 465, 473, 259 S.E.2d 242, 247 (1979), one Alford was charged with second degree murder. He attempted to argue that a witness’s testimony was barred by the marital privilege. The North Carolina Supreme Court (Huskins, J.) repeated the rule above, but noted that the state would recognize a common-law from another state as valid if it was valid under the laws of that jurisdiction.

          1. Did you switch venue from North to South Carolina?

            1. Is there a difference?

              1. From here, about 50 miles. They ARE two different states.

  3. Slavery is bad. What is worse is the utter failure of every self stated goal of every law subject. These failures cause $trillion in damage to our economy every year, and threaten our national security. The lawyer profession must be crushed and remade. It provides an essential utility product, the rule of law, but is in utter failure. No one in the profession is addressing this concern of today.

  4. My (IANAL) objection to this is the elevation of slavery over everything else. Like that example of the US National Bank; I bet 99.999% of all cases have hidden penumbras which would be helpful to know in a citation. As bad as slavery was, there have been plenty of other evils in this world. Close to half a million dead abolitionist soldiers in the Civil War (we can’t count the half a million dead defenders of slavery) to free four million slaves — was that worth the cost? Apparently not, since wokeness requires denigrating all those dead white males who apparently didn’t understand that their subsequent 150 years of silence was actually violence.

    1. The elevation of slavery above all else is indeed telling. For instance, there are thousands of reported cases involving the treatment of Indians. Yet no rule is proposed.

      1. I have the sneaking suspicion that one of the reasons to add these “slavery” notes is so they can promptly forget it, relying on the citation to remind them when it is important. Another possibility is to taint such citations so unwoke lawyers can be upbraided in court.

        But perhaps I am too jaded by the constant wokeness hypocrisy.

  5. Okay, well, first, everyone is completely misreading the case that you’re arguing about. State v. Samuel explicitly assumes (but only arguendo, so it’s not on-point for the slavery exception) that enslaved persons can enter into contracts — it stands for the proposition that some form of sacred or government formalities is necessary for a marriage sufficient to constitute the evidentiary privilege, which implicates slavery only (as an implied EP challenge avant la lettre) where the government hasn’t thought up one of those rituals for enslaved people.

    Second, slavery enters into American law as an alien imposition by the laws of nations (Justinian’s “laws common to all mankind,” carried forward by the Spanish scholars of conquest). The positive law and the judicially determined equitable rights operate against that background force. So by saying that enslaved person X won a certain right Y in the citation actually diminishes the legal principle, because the “force of law” is operating against the force of slavery, in a manner different than it might absent the headwinds.

    But mainly: point #1. I say this from behind a big stack of books over in the much lower-paid Humanities: Law professors need to spend more time reading.

    Cheers.

    Mr. D.

  6. How about a law-review article about modern cases (i. e., cases still cited today) which are “tainted” by slavery so that removing the taint could change the result?

    How many such cases are actually there?

    “The Bluebook rule does not rank these or other horrors, but instead recognizes the central role of slavery in our legal tradition.”

    So a key issue is – will this be a one-time “just this once” change, or (despite the assurances) are more changes in the offing?

    Given the role that racial caste, enforced by violence, arguably plays in our legal tradition, maybe Brandenburg v. Ohio should have a note saying “(Klan meeting case).” It’s hard to deny the role of the various Klan organizations in our sordid racial history, and here’s the Supreme Court upholding the rights of a Klansman!

    Or when citing the opinions of Justice Black, put “(ex-Klansman)” after his name.

    Or “(eugenics advocate)” next to Justice Holmes’ name – relevant given the historical overlap (to put it mildly) between eugenics and racial caste.

  7. What about freedom suits like Dred Scott v. Sanford (or maybe I should say Scott v. Sanford, to avoid disrespectful use of the first name)?

    Should it be Scott (freedom seeker) v. Sanford? Calling Scott an “enslaved person” would beg the whole question!

    1. Learned Hand (wife had long-term, supposedly Platonic romance with another man)

      Earl Warren (stripper)

      Just kidding about that last one, Homer Simpson may have been exaggerating there.

      1. Well, if you saw it on TV, it must be true.

      2. Now who’s being naive, Cal?

  8. The citation to State v. Samuel seems flawed. The case held that slaves lack capacity to marry, not that common law marriage could not be contracted. Minors, for example, lack capacity to enter into contracts (and still do today), but a case holding they can’t marry doesn’t prove that there is no such thing as common law marriage.

    North Carolina in fact had common law marriage. The North Carolina legislature abolished common law marriage by statute. And when it did so, it provided that unregistered marriages prior to March 9, 1909 would remain valid from the date of consummation. NCGS 51-1

    In 1866, when slavery was abolished but the 14th Amendment (and hence the capacity of the former slaves to enter into contracts) hadn’t been established, the legislature overruled State v. Samuel and validated marriages between slaves. The law is still on the books. NCGS 51-5.

  9. I hope to see the Bluebook get back to more important issues.

    Like whether the period after id should be italicized.

    1. “How many lawyers can dance on the head of a period?”

      1. Not as many if the period is italicized!

        Because, you know, then they keep sliding off.

  10. Professor Simard’s response does not get at the heart of the problem with this kind of parenthetical: it relates solely to context, not to legal reasoning, and it treats all cases with a particular context the same irrespective of its influence on the reasoning.

    So he is quite wrong to compare the proposal to subsequent history, which is directly tied to the precedential value of a holding. You have to put “rev’d” or “abrogated” if the relevant holding has been, and you put “on other grounds” or “in other respects” if the red flag your reader will see upon pulling up the case doesn’t relate to the reason for which you have cited the case.

    But nobody knows whether “(slavery)” is relevant to the holding or not. Maybe it is, and maybe it isn’t. The implication, of course, of such a rule is that it invariably is. But that principle isn’t reflected in the law and would be destabilizing. Professor Simard shows us why: every modern case that reiterates a line of precedent stretching back to the antebellum period now becomes suspect. “That line of cases is rooted in slavery, so you should not follow it,” will go the argument on every front.

    If a case concerning slavery applies a rule that was implicitly abrogated by the 13th–15th amendments, say so. But don’t tar authorities with a sui generis contextual parenthetical.

    Final note: the only other widely used citation addendum that comes to mind is “(Hand, J.).” But author parentheticals aren’t mandatory except in weird situations like chambers orders, and in either case they’re used to suggest the authoritative weight of the opinion: “hey, this was not the full court,” or “hey, written by a smart judge,” or “hey, written by a doofus.” That’s not just the case’s context, it’s potentially useful information about how persuasive, or even binding, the decision is.

    1. Thank you, you said it very well. Slavery might be central to one case, but incidental to another. A blanket rule requiring notation of slavery in the parenthetical elides this difference.

    2. Professor Simard shows us why: every modern case that reiterates a line of precedent stretching back to the antebellum period now becomes suspect. “That line of cases is rooted in slavery, so you should not follow it,” will go the argument on every front.

      If a case concerning slavery applies a rule that was implicitly abrogated by the 13th–15th amendments, say so. But don’t tar authorities with a sui generis contextual parenthetical.

      Note that this appears to be precisely what Prof. Sigard is advocating. On page 105 (PDF page 27) of his article, he calls a 1985 bankruptcy case “particularly egregious”. Not because it cites a case involving slavery, but because it cites a case from 1888 which appears to lay down the precise rule of state law needed to resolve the issue, but which itself includes a case involving slaves in a string cite.

  11. One thing is crucial to note here- this douche is trying to force lawyers and judges to do this, not just professors.

    The profession should resist this. We really should not be taking orders from non-practitioners on how to write briefs. If necessary, we should junk the bluebook and develop a different style manual.

    1. Go back to Latin.

      1. If you prefer. After all, De gustibus non disputandum est.

    2. Yes, he wrote “I have more confidence in judges and lawyers: I believe that they will not shy away from acknowledging the context[.]” Prescribing additional citation rules does not appear to support that confidence in professional judgment.

    3. As a California lawyer, I didn’t realize any practitioners even used the Blue Book. [Now hoping this madness doesn’t find its way into the California Style Manual.]

      1. Wait, what? California still has lawyers?
        I thought the Governor just published the rules and that was it. Or else.

    4. My state has its own style manual. Is this not a common practice among states?

    5. “The profession should resist this.”

      Maybe the lawyers should stage a protest, where they burn their Bluebooks.

      Seriously, I have not used the Bluebook since law school, and have drafted and filed briefs all over the country in federal courts, as well as in NY state courts. Don’t see the need for it.

      1. I’ve only been practicing for three years and I think I’ve only looked at it once for something, because my state’s style guide did not have an example of what I wanted. I don’t even remember what it was.

      2. “Seriously, I have not used the Bluebook since law school, and have drafted and filed briefs all over the country in federal courts, as well as in NY state courts. Don’t see the need for it.”

        I think almost all (good?) practitioners just default to using whatever the rules were when they were in law school. I mean, I pretty much had that damn thing memorized by the end of 2L (don’t let them con you into being a “research assistant”).

      3. BTW, technology may soon have an impact. The NY State appellate courts are soon requiring that briefs contain hyperlinks to citations to the record, and I believe to unpublished cases. Once you are doing that, it won’t be too hard to require hyperlinks for published cases.

        So all you would need is the name, year and court, at most.

  12. Virtue signalers gotta virtue signal. That’s all this is about.

    1. And bigots gotta bigot, albeit these days while trying to hide behind euphemisms such as “traditional values,” and “family values,” and “conservative values,” and “Republican.”

  13. “For that reason, if the Bluebook does go forward with this rule, it would be much wiser to make it an optional rule, and for journals to recognize that the individual judgments of each scholar and editor should ultimately control.”

    I’m the editor of a journal and I don’t understand this. All blue book rules are voluntary. Even the ones that do not purport to be voluntary rules. Could you elaborate on what the problem is, here?

    1. Actually, my experience was the opposite. The first thing they gave me when I joined Law Review was the style manual, and like the second rule in it was “all ‘optional’ Bluebook rules are mandatory”.

  14. The explanation seems to be more evidence why it’s not a legitimate rule. The problem he has with it isn’t that the case involves slavery, it’s that the authors citing it didn’t properly discuss the holding of the case and how it had been affected by future developments. Which is not something a parenthetical in the required citations will change one iota. People who aren’t properly discussing caselaw will just leave that parenthetical off, and people who ARE properly discussing it won’t need the parenthetical to make the issue clear. And he even acknowledges that many of the cases have holdings that aren’t affected by involving slavery at all, so why should THOSE have the parenthetical?

  15. Whether one agrees with Simard’s conclusions or not, let’s at least acknowledge that his reply goes a long way to show the contrast in writing ability and persuasiveness between a top-notch legal analyst, and—for instance—Josh Blackman.

    1. Really? I think Simard is a douche who needs to stay in his lane, which is teaching and writing law review articles. He has zero business saying anything to lawyers or judges.

      At least Blackman actually files briefs and knows something.

  16. I find myself persuaded by this simple argument:

    “[W]e think scholars and editors ought to judge for themselves whether a precedent’s relationship to slavery merits comment, and if so what kind of comment it merits.”

    This seems right to me. A citation rule like this is really getting into the substance of the article. It is overbroad.

    Let’s face it. When we read legal scholarship or any scholarship, for that matter, we are putting some trust into the author to make good judgment calls regarding how to interpret source material. When we feel very strongly about an issue, the citations allow us to go to some of the sources that influenced the author to see if and how they support the author’s argument. At the same time, as mere human beings with finite lives, we don’t have time to read all of the scholarship that could be of interest to us, much less check all the footnotes.

    The process of scholarship is such that there is some incentive for the sources of disagreement to reveal themselves. If one scholar disagrees with another based on how decisions involving slavery have been cited, they can make that argument. There needs to be no special parenthetical in the original.

    I think the rule is overbroad and should be rejected from the Bluebook. The idea of thinking about the impact of slavery when citing cases involving slavery may most often be a sensible one. But, thinking and writing are two different things. If your article isn’t really about slavery, you shouldn’t be required to discuss it in writing in a parenthetical by student editors. This infringes on the author’s control over the substance of their work, and the Bluebook should not be about substance, but instead citation.

    1. Problem is, Welker, originalism/textualism is all the rage. If you let practitioners of that art pick and choose among incomplete contexts, then the entire justification which insists originalism/textualism delivers judicial constraint goes right out the window.

  17. A perhaps small point in favor of citing slavery, though one likely far removed from Prof. Simard’s primary concerns, is that courts tended to treat slaves differently from other “goods” in commerce cases, specifically, they tended to protect buyers more in purchases of slaves than in other purchases, in areas like, for example, implied warranties. A court would be more likely to find an implied warranty in the same words (such as “sound” or “healthy”) in a slave case than in a livestock case. In short, courts were openly inconsistent, protecting slave buyers, but sticking with caveat emptor for buyers of other goods. Among the reasons for this were the relative high cost of slaves, the perceived importance of the institution of slavery in society, and, frankly the generally high positions occupied by those who bought slaves. In fact, some have argued that this hastened the end of caveat emptor more rapidly in the South than in the North.

    See, e.g., Andrew Fede, Legal Protection for Slave Buyers in the U.S. South: A Caveat on Caveat Emptor, 31 Am. J. Legal Hist. 322 (1987); Jenny B. Wahl, The Jurisprudence of American Slave Sales, 56 J. Econ. Hist. 143 (1996).

Please to post comments