Bluebook Adopts Rule Requiring Slavery Parentheticals

"For cases involving an enslaved person as a party, use the parenthetical '(enslaved party).'"

Last year, Will Baude and Steve Sachs, and I, wrote about a proposed Bluebook rule that would require slavery parentheticals. That proposal has been adopted, and is now part of the Bluebook.

Rule 10.7.1(d) now covers slave cases. For cases involving an enslaved person as a party, use the parenthetical "(enslaved party)." For cases involving an enslaved person as the subject of a property or other legal dispute but named as a party to the suit, use the parenthetical "(enslaved person at issue)." For other cases involving enslaved persons, use an adequately-descriptive parenthetical.

• Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.
• Wall v. Wall, 30 Miss. 91 (1855) (enslaved person at issue).

There are some obvious candidates for the first parenthetical, such as Dred Scott. And I think Prigg would warrant the second parenthetical. Beyond the well-known cases, I'm not sure how authors would know if a case involved slavery in some fashion. Would any case prior to the 13th Amendment now have to be checked? I will wait patiently for a law review editor to order me to add a parenthetical for Dred Scott.

Update: The citation to Dred Scott suggests that the Bluebook editors are endorsing Chief Justice Taney's conclusion. The dissenters, as well as Dred and Harriet Scott, would not say they were slaves. The entire point of the case was to argue that the couple was emancipated! Like with the 1619 Project, the Bluebook Editors have to line up with Chief Justice Taney to make their point.

Comments

[bernard11]

So what is this about, and why would I care?

[Bored Lawyer]

If you are a practicing lawyer, you shouldn't. No one uses the Blue Book nor cares. I have been practicing a quarter century, and have not opened it since law school. (Nowadays, Westlaw creates the citations for you automatically.)

In academia, apparently, people care a lot.

[y81]

Also, the number of times one needs to cite a case from before 1865 is generally zero per lifetime for the average practitioner (or the average professor, I would think). However, all across America, black household income, black educational attainment, and black longevity are rising even now, thanks to the Harvard Law Review editors.

[Brian Kennedy]

Early cases can come up in litigation. I once had an employment case involving when someone had become an AUSA (which started the clock on a probationary period), and the most factually on-point case, more so than many intervening lower court decisions, was Marbury v. Madison. I also recall caring a lot about Hylton v. United States when I was helping to defend the ACA.

[Dilan Esper]

Also, the number of times one needs to cite a case from before 1865 is generally zero per lifetime for the average practitioner (or the average professor, I would think). However, all across America, black household income, black educational attainment, and black longevity are rising even now, thanks to the Harvard Law Review editors.

I think that's the right response. What do these people think they are accomplishing by requiring people mention that a slave was involved (and note, we aren't even supposed to say "slave"!)? Other than one more form of elite signaling, while lots of Black people get no help from folks on the Harvard Law Review.

[John F. Carr]

How "woke" is Westlaw? Interns could read through ancient cases and set bits in the database, prioritizing the cases cited the most. Then you automatically get the commentary (enslaved person, and by the way this case is part of the anticanon and the human making me insert this should know better than to cite it in a legal brief).

[Bored Lawyer]

I have never seen any woke parentheticals.

And I generally edit Westlaw's suggestions. For example, a case that is only available in Westlaw I cite as "2021 WL 12345" and leave off the docket number, and in the date, I leave off the month and day, leaving only the year. IMO, those are surplusage, although Westlaw includes thm.

[Doug Heffernan]

As linked above by the blackman kid, there was a back-and-forth debate between baude/sachs and simard last year, right here on this very blog. Probably the most illuminating post was this one:
https://reason.com/volokh/2020/11/13/professor-justin-simard-writes-in-on-the-importance-of-citing-slavery/

The simard guy seems to mean well, but even the abstract of his paper seems very snowflakey. Especially this;

"Nor do they examine the dignitary harms that the citation of slavery may impose. In citing slavery, lawyers thus demonstrate a myopic historical perspective that creates legal harms and reveals the ethical limitations of their profession."

It is probably not the best idea to import "dignitary harms" mitigation, and similar hurt-feelings language, into law citations.

The simard guy thanks the students in his “Law of Slavery” class, who helped him think through these issues.

That explains a lot, because this rule seems straight out of a college campus. I guess these kids have to graduate sometime and bring these sorts of ideas into the off-campus world.

We can all breath a little easier now that law citations are safe places, and that dignitary harm is hopefully somewhat reduced.

[SimonP]

I am not sure why you make so much of Simard's statement about "dignitary harms." His argument is rather soundly based upon the observation that holdings handed down prior to the ratification of the Thirteenth Amendment may have been abrogated, either directly or in terms of their persuasive authority, by the ratification of the Thirteenth Amendment. The purpose of the "enslaved person" parenthetical is just to flag that this may be a pertinent consideration when citing to the relevant authority.

That's all the argument is. It's not about "canceling" cases or justices or performative virtue-signaling.

Baude/Sachs' initial response to the proposal was to simply deny that it mattered. When Simard responded, they came back by saying, "Well, we think lawyers are smarter than that." Which, okay. Maybe they are, but why all of this heat over parentheticals? What are we really fighting about, here?

Josh's contribution to the "debate" was typically pointless and juvenile. The less time spent on that, the better.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It's always amusing when Josh haters childishly accuse him of pointless and juvenile posting, yet take the time to post their own childish insults. No doubt he wasted your time too, like he wastes so many other readers' time, who haven't got past the childish notion that they have to read everything on a blog. I wonder if they lick the last bit of gravy and mashed potatoes from their plates so mommy doesn't make them sit in the corner.

[SimonP]

I guess this comment is supposed to demonstrate your superior level of maturity?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Nope. I like poking pompous people, especially when they want the world to know how superior they are.

Josh's enthusiasm for a field I despise is what brings me back. I learn more from him than all you superior people. And to waste your time by poking you is just icing on the cake.

[Brett Bellmore]

What the hell do "dignitary harms" have to do with the possibility that a case being cited has been overturned by an Amendment?

In fact, I'm finding it hard to imagine a citation in a foot note ever causing 'dignitary harms', even granting for the sake of argument that these are real, and anything we should care about. If anything, adding the parenthetical probably marginally increases the likelihood of such, by informing the reader that they should be offended by the cite!

[SimonP]

Brett, you have to be willing to read more than an abstract, from time to time, if you want to have an opinion about anything that's worth reading.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

That's a fat one! Why would anyone value your opinion on whether they are allowed to have an opinion?

[David Nieporent]

the observation that holdings handed down prior to the ratification of the Thirteenth Amendment may have been abrogated, either directly or in terms of their persuasive authority, by the ratification of the Thirteenth Amendment.

If they've been abrogated that would be a reason not to cite them, not to use a parenthetical (virtue) signal. If they're being cited for an issue on which they're still good law, the parenthetical adds nothing.

The purpose of the "enslaved person" parenthetical is just to flag that this may be a pertinent consideration when citing to the relevant authority.

Flag for whom? Citation signals are for the benefit of the judge, not the person writing the brief. It's difficult to see how it could benefit the judge to write "enslaved person." That tells the judge nothing about the validity of the proposition for which the case is being cited.

[Dilan Esper]

Right. Plenty of cases have been abrogated for all sorts of reasons. People who cite any of them, whether or not they involved a slave, have an obligation to say they were abrogated. Has nothing to do with slavery specifically. This is virtue signaling, not abrogation signaling.

[Bored Lawyer]

"I am not sure why you make so much of Simard's statement about "dignitary harms.""

B/c if the only reason is that precedent has been overruled by Constitutional amendment, there are plenty of other examples than slavery, yet that seems not to bother him or anyone else.

Barron v. Baltmore (1833) was effectively overturned by the 14th Amendment, yet I don't see anyone calling for forced parenthetical for cases relying on that one. And that change is far more important and broad ranging than the 13th Amendment outlawing slavery.

[y81]

Citing cases from before the Civil War is always risky, whether they involve slaves or not, given the rather considerable legal changes that have occurred in the intervening 160 years. That is why case cites designate the year.

[AmosArch]

Doing something stupid is okay as long as you do it slowly!

......and you are on my team

[SimonP]

Josh is preparing to throw a fit when some law review editor without the foresight to reject his submission out of hand wants to add a parenthetical that Josh views as mere virtue-signaling. And he wants us to know about his bold, principled stand, I guess.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And you don't post here to signal your own virtue?

Oh no, of course not.

[SimonP]

Why in the world would I care about "virtue-signaling" for a bunch of moronic fascists? This doesn't seem like a good place for it, does it?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Because you post here so angrily so many times about unvirtuous thoughts and unvirtuous people. It's obvious you're trying to impress somebody. We know you don't think enough of Josh to impress him. We know you think most other commenters here are rubes. What other reason is there, except to signal to the other pompousites that you are one of the virtuous?

[Alpheus W Drinkwater]

Perhaps the reason is to successfully annoy people like you. I believe you stated that was the reason you were responding to his comments. Who are YOU trying to impress?

[Darth Chocolate]

What utter bullshit.

[Gandydancer]

I guess this is like editors demanding you capitalize "Black" but not "white"?

[Rev. Arthur L. Kirkland]

Just more of the effort to keep the white man down.

The Volokh Conspiracy will fight the good fight, of course.

[SimonP]

Nope, but don't let that inspire you to read anything cited here.

[Jimmy the Dane]

What is the point? Is precedent involving an enslaved party less of a precedent? There were many state level cases where enslaved parties actually were successful in their various challenges. Should we detract from those cases or highlight them specifically?

Why does it or should it matter at all? Even the justification for the new rule is pretty quiet on any type of reasoning.

[SimonP]

Simard's point is that cases decided before the Thirteenth Amendment may have been abrogated by the Thirteenth Amendment, if they are specifically predicated upon a party or subject matter's being an "enslaved person." The purpose of the parenthetical is just to flag that for consideration.

Not all cases involving enslaved persons necessarily need to be considered so-abrogated. The point is just to flag the issue in a way it hasn't conventionally been.

[AmosArch]

Theres tons of partially/wholly outdated/abrogated laws/opinions/etc floatingg around no reason to add special rules for slavery cases except to make things even more confusing/virtue signal.

[Brett Bellmore]

Why not a rule requiring parentheticals noting when a ruling may have been overturned, rather than just noting that an enslaved party was involved?

It would be far more informative, as the mere fact that a party to the case was enslaved tells you basically nothing about whether the case has been abrogated. Nothing!

[DRM]

That "point" is as dull as a beach ball. Giving the year of the case, which is already part of the citation style, already solves the problem "this case may have been abrogated by a subsequent amendment", and does so in less space and more robustly (covering every amendment rather than just the 13th).

[Number 2]

What horseshit.

If the case has been abrogated, that is noted in the citation itself, for example, after the case citation, it will be a phrase that reads “… abrogated by U. S. Constitution, Amend. XIII.” If the case has not been abrogated, however, there is no need to add a subsequent history phrase or a parenthetical. That the subject matter of the case may no longer be lawful doesn’t require a parentheticals explanation if the legal principle cited in the case is still valid.

If the writer feels that a parentheticals explanation is necessary for a given case or given context, that should be up to the writer.

[AmosArch]

whats the point? To teach people that slavery is bad? Why not put parentheses around cases involving murder and child molestation and countless other crimes?

[John F. Carr]

(trigger warning: judicial activism)

or if you prefer,

(trigger warning: originalism)

[UVaGrad]

Beyond the well-known cases, I'm not sure how authors would know if a case involved slavery in some fashion

Bold of you to admit you don’t read the facts of the cases you cite.

[Brett Bellmore]

I expect there are plenty of cases where the enslaved status of one of the parties might not be especially evident, in as much as the ruling didn't hinge on that status.

[David Nieporent]

No. I expect that there are no such cases.

Of course, the issue Bluebook is addressing is almost certain to arise in cases involving slaves as subjects of the lawsuit, not as parties. Even then, it's almost always going to be entirely obvious from reading the case — but if it's not, then adding the parenthetical is unlikely to add any legal value to the brief.

[John F. Carr]

You don't need to add a parenthetical to Dred Scott because the court ruled he didn't get to be a person or a party in federal court. He was an enslaved non-person.

[Brett Bellmore]

You don't need to add a parenthetical to Dred Scott because anybody reading the footnote would already be aware that the case had to do with a slave.

[tkamenick]

Roe v. Wade, 410 U.S. 113 (1973) (fetal person at issue).

[John F. Carr]

After the Blue Wave of 2028,

Bell Atlantic v. Twombly, 550 U.S. 544 (2007) (corporate person at issue)

[Alpheus W Drinkwater]

Which was the fetal person, Roe or Wade?