The Volokh Conspiracy
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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.
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.