The Faculty Lounge

Tired but Finished

Last summer I blogged about my book on the term of Uncle Tom. Well, the 530+ page behemoth is now finished.  I posted the short Introduction on SSRN if anyone is interested in reading.  Now on to book #2.

Acting White

I'm pleased to see that Acting White: Rethinking Race in Post-Racial America by Devon Carbado and Mitu Gulati is now out from Oxford University Press.  I've been hearing about this for what seems like years -- and I'm guessing Devon and Mitu perceive it as even longer (though it pales by comparison with how I perceive how long I've been working on University, Court, and Slave!)  I've even had the chance to read parts of Acting White along the way -- the focus here is how law should treat/respond to people's behavior.  Back when anti-discrimination law, for instance, could classify people as black or white based on appearance it was a lot simpler.  Now Carado and Gulati show that we (and presumably the law) are dealing with behavior and expectations of how people should act based on race, and racial classifications based on behavior rather than just appearance.  

Cribbing now from the OUP website:

What does it mean to "act black" or "act white"? Is race merely a matter of phenotype, or does it come from the inflection of a person's speech, the clothes in her closet, how she chooses to spend her time and with whom she chooses to spend it? What does it mean to be "really" black, and who gets to make that judgment?

In Acting White?, leading scholars of race and the law Devon Carbado and Mitu Gulati argue that, in spite of decades of racial progress and the pervasiveness of multicultural rhetoric, racial judgments are often based not just on skin color, but on how a person conforms to behavior stereotypically associated with a certain race. Specifically, racial minorities are judged on how they "perform" their race. This performance pervades every aspect of their daily life, whether it's the clothes they wear, the way they style their hair, the institutions with which they affiliate, their racial politics, the people they befriend, date or marry, where they live, how they speak, and their outward mannerisms and demeanor. Employing these cues, decision-makers decide not simply whether a person is black but the degree to which she or he is so. Relying on numerous examples from the workplace, higher education, and police interactions, the authors demonstrate that, for African Americans, the costs of "acting black" are high, and so are the pressures to "act white." But, as the authors point out, "acting white" has costs as well. 

Provocative yet never doctrinaire, Acting White? will boldly challenge your assumptions and make you think about racial prejudice from a fresh vantage point.

Provocative and never doctrinaire -- that, of course, describes both of the authors, as well as the book.   Here's an interview Devon did with Touré and the rest of the crew on MSNBC's show "The Cycle".  It's exciting for an academic book to get this much attention on the national news.

Baker on Slavery, Law and Incoherence in Antebellum Culture in State v. Hoover

Anthony Baker's article "'For the Murder of His Own Female Slave, a Woman Named Mira…': Slavery, Law and Incoherence in Antebellum Culture" is now up on ssrn.  The abstract is as follows:

On March 28, 1839, a coroner’s inquest presented at the rural Iredell County, North Carolina farm of Mr. John Hoover, to investigate the alleged death of “one Mira a female slave the property of… the said John Hoover…”. An examination of the freshly exhumed body of Mira, then but one short day dead, led to only one conclusion: Mr. Hoover was “taken into penal custody on the spot, under the capital charge of murder.” In trial before the North Carolina Superior Court, Iredell County, Hoover was convicted of the charge and sentenced to hang. This stark verdict was affirmed summarily by the North Carolina Supreme Court in early 1840, Mr. Hoover being publicly executed in May of that year, for “the murder of his own female slave…”. The scant, 3-page 5-paragraph opinion of Mr. Chief Justice Thomas Ruffin for the Court has garnered little academic attention over the years, the few scholars addressing it generally hailing its “progressive stance” in favor of slaves facing institutional mistreatment, reflecting the court’s consistent “liberality toward slaves in all cases involving their personal security as human beings…”. 

Not so fast. For if law was rightly used to hurry Mr. Hoover off into eternity for the taking of a human life, it must not be missed that it was law – the common law of human slavery – that uniquely devalued that life in such a way as to deliver it to that man for the easy taking. In exempting the ‘slave’ victim from the protection of the common law of battery as the state Supreme Court had done in State v. Mann 10 years prior, could it not have imagined the inevitable results where such physical ‘correction’ was wholly undergirded by law? If the law turned a blind eye to every fierce stroke against the flesh of a human being within the legally created and garrisoned institution of ‘slavery’ in the midst of a republican democracy, how could it legitimately be concerned with the one stroke that extinguished that legally diminished life? With regard to the broader matter of justice at the heart of this singular event, what is really going on here? 

This paper seeks to look carefully at this unique opinion in the context of the developed and developing common law of slavery of that day, recovering a very different view of its ultimate place in the edifice of the relevant legal culture constraining and animating the society in question. Turning from the case’s factual importance to its artifactual significance and value, the paper seeks to consider the place of law in both refining and defining culture, to its benefit or, here, to its ultimate confusion and distress, it is suggested. Though the case at its heart is small in scope and regional in focus, this study suggests that it in fact implicates a much larger and more visceral story, one of intellectual significance and of contemporary importance and application. Sampling from a broad area of intellectual inquiry – legal history, law and society, jurisprudence, justice and the like – the study attempts to place the case at the significant crossroads of law and culture, asking questions of it that are both far-reaching and contemporarily significant. In this way, in sampling broadly from a host of relevant social interests, it should appeal to a broad reading audience.

This is going to get a lot of attention.  I've thought for a long time that given all the attention-- deservedly -- to State v. Mann there should be more attention to State v. Will and to State v. Hoover.  The illustration is of Ruffin Hall on the UNC campus, named in part after Chief Justice Thomas Ruffin.

Race and Infertility Care

Several research assistants and I spent last summer looking at websites from virtually every US fertility clinic.  One of the things we recorded was the race of any babies pictured on the first page of the clinics’ websites.  I have no background in critical legal studies or critical race theory, so I am probably not the best person to do this study, but I was looking at other advertising issues on the website, and I had read that minorities use assisted reproductive technologies at a much lower level than Whites, despite experiencing higher rates of infertility and even when states mandate fertility insurance (which should control for wealth effects).

 I was surprised by the results, which are included here.  It turns out that the picture of fertility care in America on websites is quite literally a picture of White doctors helping patients have White babies. 

Does Reparations Have a Future?

This Friday the University of Virginia's Carter Woodson Institute is hosting a symposium on the question, "Does Reparations Have a Future?"   I suppose the short answer is that people are continuing to use reparations talk as a way of organizing their thoughts and actions around racial justice -- even as the case for reparations has been largely defeated in the courts and in legislatures.

 One of the things that really interests me -- and that Kaimi Wenger has written about --- is how reparations has been de-radicalized in recent years.   Legislatures, corporations, and institutions are more willing to engage in discussions about the past (what some people call truth and reconciliation commissions) and issue apologies.  That's the non-radical part.  The radical part -- which continues to meet stiff restsitance to the extent it's talk about at all -- is money.  And that's not going anywhere soon.

There are four panels, "Reparations in Historical Frame," "Reparations and the University," "Reparations and the Nation," and "Reparations Around the Glove."  The speakers include Martha Biondi of Northwestern University; Lawrie Balfour of the University of Virginia; Lisa Crooms of Howard University; William Darity of Duke University; Adrienne Davis, of Washington University;  Michael Dawson of the University of Chicago; Ted Delaney of Washington & Lee University; Kim Forde-Mazrui of UVA; Darren Hutchinson of American University; Alex Johnson of UVA; H. Timothy Lovelace of Indiana University; Pap NDiaye of  L'École des Hautes Études en Sciences Sociales; Melissa Nobles of  MIT; Margaret Urban Walker, of Marquette University; and Verna Williams of the University of Cincinnati.  Here's the full schedule.

Blind spots

A great post over at The Situationist blog about a new book from Mahzarin Banaji and Anthony Greenwald called Blind Spot: The Hidden Biases of Good People which is an attempt to bring some of their work on the Implicit Associations Test (IAT) to a broader, general audience. This work is interesting and provocative and, as noted in the blog, often controversial. But I suspect the book will be very interesting to those legal academics who have either written about the IAT or issues of implicit bias or cognitive limitations generally, as well as to practitioners who may be coming up against this sort of evidence in court or who, conversely, would like to use it in court.

Update: TFL blogger Michelle Meyer adds this review of the book from the WSJ blog,  Book Review: Blind Spot. After looking at the review I think I'd have to say it goes beyond simply offering a caution about importing the insights (if any) of the IAT, but is fairly hostile to this research.  It offers several of what seem like valid criticisms and a few that don't seem so valid to me.

The observations about the linguistic limitations, the crudeness of some of the measures and cautions about the associations which the authors make, are examples of  some of the valid critiques, although they do not necessarily lead to the conclusion that this work does not help to some degree in trying to tease out the difference between lying and lying to ourselves - or, in the context of discrimination, between what we consciously tell ourselves and what what we may actually do, or what may be unconciously informing some of the decisions we make.  I think some of the critics may be asking that this research conclusively prove discrimination rather than that it show evidence which is suggestive of it or supports an inference in that direction.  Of course conclusive proof of most connections in the social sciences is unlikely to be forthcoming, moreover, that is not the test for admissibility for expert evidence in court. Observing that a particular approach does not answer every question you might have with respect to the problem it attempts to study does not mean the test is invalid any more than the fact that an MRI and a CAT scan offer different information means that either is invalid.  Finally,  terms like "disrimination" "bias," etc. are all themselves extremely loaded in that they might suggest more to some readers than the authors intend.

On the other hand, Daubert, the case that provides the framework for the admissibility of expert testimony,  does provide that expert testimony needs to meet some basic standards of reliability, etc.  that if all these criticisms are well-founded, would probably lead to exclusion. So, facts like the authors' own meta-analysis failing to account for the vast majority of the data is, if true, a significant omission from the book and one that it would be interesting to follow up on. Indeed, if you were planning to use such evidence in court it would be remiss of you not to follow up on it. 

I think other observations in the review are less valid. Take this one:  "But if a test gives results that are so far-fetched, it's time to start questioning the validity of the test."  First, "far-fetched" is an assessment that assumes the very thing that the authors are trying to discover, whether it is indeed "far-fetched" that someone might harbor unconsious racial stereotypes, no matter what their ethnic background. The comment assumes that racial heritage or background is some sort of invariable predictor of attitudes.  A casual glance around at the diversity of political opinions within various minority groups should dispell that idea. So the ethnicity of Malcolm Gladwell's parents, while surely not irrelevant to the question of his attitudes towards race, is probably not dispositive of them.

Second, that some data diverges from what you expect to find is not necessarily a reason to question the test. Sometimes it is. That is always one possibility. But it also is possible that it is a reason to question your assumptions about what is or is not "far-fetched."  There are a great many things which are true even though they are counter-intuitive, for instance that certainty is strongly correlated with accuracy.

Moreover, in this, as in so many areas of research that are highly politically charged, there are some hints that there may be ideological divsions presented as metholodgical ones driving some of the critiques.  There does seem to be a way in which normative disputes about the legitimacy of underlying assumptions sometimes morph into arguments that purport to be about rigor or metholodgy, with one side claiming that the other is not really rigorous, when they may be working from radically different foundational assumptions.  Whether this is going on here is a question that can only be resolved by further reading of the works on which the book is based and those critiques which the WSJ article references.  I do not know the answer to that question. Interested parties should definitely read it all and decide for themselves.

At the end of the day, this book is, as advertised, a presentation of the authors' research for a general audience, with all the limitations that go along with such attempts. That said, you need not endorse immediate adoption, by the courts or legislatures, of any of the implications of the authors' research here to conclude that it is interesting and worth further exploration. And, for better or worse, as the National Research Council's report from 2009 on forensic science illustrates, the validity of a practice has rarely been an insurmountable barrier to its acceptance in the courts.  So this research is likely to migrate there. (I think it may have done so already and look to more knowledgable readers to alert me to those cases.) Whether you want to use it or defend against it, may pay to give it a look. This book looks like one entryway to that exploration.

Room for Debate on the Three-Fifths Compromise

Today's New York Times has commentary from five distinguished scholars -- historians and law professors   -- on the three-fifths compromise.  The discussion begins:

Emory University students marched in anger last week over a decision that was reached more than 200 years ago. They were outraged, among other things, that the school’s president called the Constitution’s “three-fifths compromise” one of the “pragmatic half-victories” that assured the union.

The commentary is from Hank Chambers, Ray Diamond, Paul Finkelman, Leslie Harris, and Sandy Levinson.  It's a terrific set of exchanges.

I'm surprised in all this talk of compromise there hasn't been more discussion of the Compromise of 1850, which included the Fugitive Slave Act of 1850.  Time was when historians viewed it as a good compromise because it kept the Union together for another decade -- long enough for Lincoln to be elected and for the cause of anti-slavery to grow to the point where there was a Civil War to preserve the Union and end slavery.  I'm wondering if we think differently about that compromise now?  Or perhaps we think that Compromise of 1850 actually wasn't necessary to preserving the Union in 1850.  

Anyway I'm looking forward to more talk of the compromises in 1787 and 1850 and other points in our nation's history (like the Virginia Constitutional Convention of 1829-1830) when slavery conferred power on the slave-owners.  Perhaps we'll realize -- or relearn the lesson -- that economic and demographic reality so frequently trump the considerations of humanity.

Critical Race Conference at Yale

Gerald Torres and Lani Guinier (above) led the opening session for the Critical Race Theory:  From the Academy to the Community conference at Yale Law School on Sat. Feb. 9, 2013.  The students who organized this conference (from left to right) Christopher Lapinig,  Jamelia Morgan and Marbre Stahly-Butts, did a wonderful job under extremely adverse circumstances - the snow storm of the century hitting the New Haven area smack dab in the middle of the conference - and it was a smashing success for attendees. Alas, over 500 people had registered for the conference - students and faculty from law and graduate programs all over the country (and, in at least one case, from overseas) but the attendance was terribly suppressed by the horrible travel conditions.  Still, about 150 brave souls made their way through the snowy streets to attend an abbreviated version of the conference originally planned. Speakers in attendance included Kimberle Crenshaw (UCLA/Columbia), Darren Hutchinson (American), Tanya Hernandez (Fordham), Priscilla Ocen (Loyola Law School), Ezra Rosser (American) and Charles Lawrence (Hawaii) (Although Professor Lawrence had to participate by phone because he had become snowed in only a mile away!).  This is only a partial list and the attendees' contributions were a key part of what made the conference work. The participation and enthusiasm shown by participants makes clear there is a thirst out there for more courses involving CRT topics and methodology, and perhaps critical theory generally.  This was a student driven effort and it drew students from around the country. A particularly terrific crowd of students came from Northeastern Law School, others came from various graduate and even undergraduate programs,  and they and many others were eager to find ways to put their ideas into practice in making a difference in their communities. Given the outpouring of demand and the unfortunate weather circumstances that resulted in a shorter version of the conference than originally planned, the students informed participants that a second conference at Yale is planned for  late spring or early fall of 2014. So stay tuned.  Those interested in information about the conference you can email the organizers at crt.conference@yale.edu. 

Distributing Scholarly Speaking and Publication Opportunities Through Blind and Other Processes

Over at CoOps, Dave Hoffman has graciously taken the time to respond to my query about why there’s been such a fuss over Scholastica’s diversity widget, given prevailing attitudes in legal academia and elsewhere in the academy that when selecting participants in conferences, workshops, colloquia, and the like — which I’ll call, for short, “speaking opportunities” and which may or may not also involve publication opportunities — it is somewhere between permissible and obligatory to consider diversity. Dave argues that symposia (I don’t know if he sees symposia as different than the other speaking opportunities I mention) and articles serve different purposes, and hence, selection criteria should be different in these two contexts. Go read his argument, then come back for my response — and a bit of a confession.

Affirmative Action (In)Consistency (Obligatory Post on L’Affaire Scholastica)

As some of you may have noticed, (at least some of) legal academia is abuzz about the fact that Scholastica, the ExpressO competitor, asks authors to provide optional information about their gender identity, race, sexual orientation, and any additional “hardship diversity,” such as socio-economic status or geographic region. In response to objections by some, Scholastica has given individual journals the option of requesting the information or not, and to date, only California Law Review and NYU Law Review have done so. As a result, when you submit through Scholastica, you will be asked to provide optional demographic information only if you submit to one of those two journals. Josh Blackman has the background, including screen shots of the prior and current “diversity widget” and responses from various law review editors (here, here, and here). You can find additional musings about all of this at CoOps (here, here, and here), Prawfs, ProfessorBainbridge, and the VC. (Update 2/16/13, 5:30 pm: Kaimipono Wenger has a thoughtful Defense of Law Review Affirmative Action over at CoOps.)

Although these musing reflect a range of views, the majority, it seems to me, objects — in some cases vehemently, with calls for a boycott — to the notion of journals deliberately selecting articles on any basis other than merit. My immediate interest in this is not about the appropriateness, per se, of what I’ll call, for simplicity’s sake, affirmative action (AA) in article selection. (For thoughts on that, see the links above.) Rather, I’ve been struck by the strength of objections to this apparent practice in light of equally strong beliefs in the appropriateness of AA when it comes to selecting conference participants, and the like. Here’s the question I posed on one of Dave Hoffman’s Scholastica threads over at CoOps:

I’m curious if you have a position on using gender, race, and the like to select invitees for symposia, conferences, and similar speaking engagements. Is doing so an equally bad idea, in your view, or are there differences between the two situations that suggest different answers? I ask because my first instinct, on hearing of (what it seems to me fair to call) affirmative action at the level of scholarship selection, was that this, like many other aspects of legal scholarship, is a clear anomaly within academia at large (quite apart from its merits or lack thereof as a practice). But then I considered the fairly common — and fairly strong — norm (if not necessarily consistent practice) elsewhere in academia of trying to ensure that one invites a suitably diverse panel of speakers. Indeed, in philosophy, entire boycotts are currently afoot in response to perceptions that conferences failed to include sufficient numbers of women. So I’m wondering whether you think these situations are on all fours, or whether there are significant relevant differences. (To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice.)

Although “Anon” responded that s/he viewed these as “analytically equal” (and equally inappropriate), one "AnonProf" argued at some length that the two practices could in fact be distinguished, with AA appropriate — indeed, “very important” — for symposia invites, but not for article selections. Dave, who has said that AA in article selection is a “terrible, terrible practice,” agreed. [Update 2/17/13, 11:05 pm: Dave has clarified his reasons for distinguishing article selection from symposia invites here.]

As I said there, “I’m actually not convinced that the two situations are much different — and I’m definitely not convinced that any difference between them is as large as “very important [to do]” in the context of selecting diverse speakers (in AnonProf’s words) and “a terrible, terrible practice” in the context of selecting diverse writers to publish (in Dave’s turn of phrase).” Since the Faculty Lounge seems to be the only law blog without a Scholastica diversity post, and since my fuller response to AnonProf’s argument would have further hijacked Dave’s thread, I thought I’d move this aspect of the conversation here.

Tera Hunter on African American Marriage in Slavery and Freedom

I'm delighted to announce that Tera Hunter, Professor of History and African American Studies at Princeton University, will be delivering the 9th annual African American history month lecture here at UNC on February 21.  Her talk is entitled "“‘Bound As Fast In Wedlock As A Slave Can Be’: African-American Marriage, Slavery, and Freedom."  And she will be speaking in Wilson Library's Pleasants Family Room at 7 pm.  Here is a poster annoucing the lecture.

Some Keys to Django?

I think people are over-doing it with the comparisons of Samuel L. Jackson's character (Stephen) in Django Unchained to Uncle Tom.  I mean, have the people drawing these parallels ever read Uncle Tom's Cabin?  I'm guessing no.  If they had, they'd know that Uncle Tom was tortured to death because he refused to tell Simon Legree where two of Legree's runaway slaves, Cassy and Emmeline, were.  That is, the Uncle Tom of Stowe's novel has more in common with Django Freeman than with Stephen.  There were a few slaves in Stowe's novel who were complicit with Legree -- Sambo and Quimbo -- though they later repented their role in torturing Uncle Tom.  And therein makes me wonder about Stephen planting the idea in the mind of the white people at Candyland about what to do with Django.  I wonder if Stephen's suggestion that Django be sold to the LeQuint Dickey Mining Company might have been a way of saving Django in some way?  It certainly spared him from immediate mutiliation and death shortly afterwards and ended up being the means for his escape.  I'm just wondering if there is something buried deep in Stephen that was trying to help out Django in some way.  Maybe not -- I confess that I could too optimistic in my interpreation here.

All of this leads me to wonder, though, which sources did Tarantino read when he was writing Django? (The title of this post leans on Stowe's A Key to Uncle Tom's Cabin, which she published to discuss the sources she drew upon for the novel.) I'm guessing Uncle Tom's Cabin, because Calvin Candie's statement that "Under the laws of Chicakasaw County, Broomhilda is my property.  And I can do anything with my property I so desire" he's paralleling Legree's statement that "isn't he MINE?  Can't I do what I like with him?  Who's to hinder, I wonder?"  (More on Uncle Tom's Cabin here.)  And maybe some of the other antebellum literature, like William Goodell's non-fiction American Slave Code in Theory and Practice.  If you're looking for evidence of the brutality of slavery and the legal system, that's one place to start.

What about secondary sources?  I'm guessing a big no to U.B. Phillips' American Negro Slavery.  And I'm going to have to say no to the portrayal of slavery from Robert Fogel and Stanley Engerman's Time on the Cross.  I think Tarantino drew a bunch on works about slave life that emphasize brutality but also the strength of enslaved people.  What about Eugene Genovese's Roll, Jordan, Roll?  And though it's been largely rejected by literature written in the wake of the Civil Rights movement, I'm wondering if Stanley Elkins'  Slavery: A Problem in American Institutional and Intellectual Life might have been the basis for some of Stephen's character?  That's been a classic for generations.  Walter Johnson's Soul by Soul: Life Inside the Antebellum Slave Market's a distinct possibility.  Maybe Ariela Gross's Double Character because there's all that talk about warranties and contracts for sale of slaves.  Someone who know a fair amount about law obviously consulted on this.  I continue to be deeply interested in Schutlz' adherence to law -- in part that's obviously self-interest -- and his final act in violation of the law.  This part of the movie correlates with themes in Melville's Billy Budd and Stowe's Dred: A Tale of the Great Dismal Swamp (and debates over the Fugitive Slave Act of 1850).

And what about slaves and mining?  I'm wondering if Taratino drew upon the evidence of the California Slavery-Era Insurance Registry, which reveals that mine owners were frequent customrs of life insurance companies for their slaves.

All of this reminds me, though, of a suggestion of a friend of mine who's a fabulous historian of slavery that there's some excellent work to be done on "loyal slaves."  Perhaps the character of Stephen will provide an impetus to work on that important and strangely neglected topic.

The illustration of this post is the cover of Maurie McInnis' fabulous book, Slaves Waiting for Sale.

Race Card Project. Check it Out.

Taking twitter to new heights, kinda.

Seriously -- I think you'll enjoy Michele Norris' theracecardproject.com, which invites readers to "Think about the word race.  Now think about how you would express your thoughts about race and ethnicity in just six words."  Check out the race card project wall, too.

The Latest on Reparations: Two Articles and a Conference

I've been writing for some time now about the rebirth of writing on reparations.  Further to that point I see that there are two new articles on ssrn.  Eric Yamamoto has posted "Korean 'Comfort Women' Redress 2012 through the Lens of U.S. Civil and Human Rights Reparatory Justice Experiences."  Here is the abstract:

In light of international scrutiny, what might be next steps toward redress for the Korean and other World War II Military Sex Slaves, in terms of strategic framing of their claims to reparatory justice? More particularly, viewed through a lens of American redress experiences, and particularly the U.S. apology and reparations for the Japanese American World War II internment, what might human rights tenets of reparatory justice offer established governments faced with challenges to their legitimacy as democracies in the face of unredressed human rights transgressions? 

Redressing the wounds of injustice has become a matter central to the future of civil societies. Whether a country heals persisting wounds is increasingly viewed as integral, (1) domestically, to enabling it to deal with pain, guilt and division linked to its past in order to now live peaceably and work productively, and (2) globally, to claiming legitimacy as a democracy genuinely committed to human rights (which affects a country's standing on international security and responsible economic development.) People and governments -- especially democracies with histories of human rights abuses -- all have a stake in justice that repairs. 

This larger stake in democratic legitimacy that a country like Japan has -- especially as it seeks to expand its influence in international security -- lies at the heart of this assessment of strategic future paths toward "Comfort Women" redress.

Atiba R. Ellis has posted "Polley v. Ratcliff: A New Way to Address an Original Sin?"  Here is the abstract:

This essay recites the history of the Polley v. Ratcliff litigation and interrogates its relevance for modern considerations of racial inequality in America. The Polley case began in 1850s with the wrongful kidnapping of the children of Mr. Peyton Polley, an emancipated African slave who lived in Ohio. The litigation continued from 1851 to 1859 without clear resolution. Although this incident has been discussed at length by historians, the litigation itself came to a remarkable conclusion on April 6, 2012. On that day, some 162 years after this Dred Scott-era kidnapping, Judge Darrell Pratt of the Circuit Court of Wayne County, West Virginia, entered a decree declaring that Mr. Polley wrongfully kidnapped children — Harrison, Louisa, and Anna — “were, and are, FREE PERSONS as of March 22, 1859." 

This declaration represented a monumental historical moment in West Virginia history, and it represents, as this essay will argue, an opportunity to consider the question of what our societal response to slavery and racism has been over time and what it ought to be in the twenty-first century. The essay considers the various modes through which Americans look at the history of slavery and race-race consciousness, racial reparations, and post racialism — and then it argues that the Polley litigation represents a different model for considering the American history of race, a model akin to truth and reconcilliation.

I hope to talk some about both of these articles soon.  I also want to mention that UVA's Center for International Studies has a conference on reparations on March 21 and 22 of this year.  It is provactively title "Does Reparations Have A Future?   Rethinking Racial Justice in a "Color-Blind" Era."  While reparations lawsuits have been relatively unsuccessful, there has been some forward progress on reparations legislation -- and also on apologies.  So one part of the answer is yes, even as the case for wide-spread reparations action is remote.  The speakers include Martha Biondi, Professor of African American Studies and History, Northwestern University; Lisa Crooms, Professor of Law, Howard University; William Darity, Arts & Sciences Professor of Public Policy, Professor of African and African American Studies and Economics, Duke University; Adrienne Davis, Vice Provost, William M. Van Cleve Professor of Law, Washington University; Ted Delaney, Professor of History, Washington & Lee University; Darren Hutchinson, Professor of Law, American University; H. Timothy Lovelace, Jr., Professor of Law, Indiana University; Melissa Nobles, Arthur and Ruth Sloan Professor of Political Science, MIT; Margaret Urban Walker, Donald J. Schuenke Chair of Philosophy, Marquette University; and Verna Williams, Professor of Law, University of Cincinnati.  Here is the complete program.

The Resurrection of Nat Turner

I'm preparing for a CLE lecture I'm giving tomorrow afternoon on the trials in the wake of the Nat Turner rebellion.  Because I frame the lectures between two North Carolina cases -- State v. Mann in 1830 and State v. Will in 1834, I'm calling the lecture "Slave Trials in Virginia and North Carolina, 1830-1834."  But this is mostly about the trials in Southampton County in the wake of the rebellion.  There's some surprising stuff in those trials.  For instance, some people were actually acquitted.  But that's a story for later.  

Right now I want to talk about a two volume novel by my Durham neighbor Sharon Ewell Foster: The Resurrection of Nat Turner.  Foster's books are really interesting to me because she is grounded in many ways in the history of the rebellion and antebellum America.  The novel is framed by the efforts of Harriet Beecher Stowe to write about the rebellion in her novel Dred: A Tale of the Great Dismal Swamp.  And so Stowe and some other abolitionists -- including Fredrick Douglass -- are in the book.  Thus, Foster populates her book with actual historical actors -- and very exciting for me -- she bases a lot of this on data of how those people actually behaved.  Thus, a lot of the characters from the Turner rebellion are in the novel -- from the rebels to the white people of Southampton.  There are some of the key witnesses to the rebellion, who testified at the trials, and even some of the lawyers and judges.  As I historian I'm excited that the people I've come to know through the trial records are also people that Foster has come to know.  Of course as a novelist she has license to move well beyond what the historical record shows and to fill in gaps.  Even to extend into the world of what might have happened -- or how she thinks things should have happened.

Foster portrays Nat Turner as the son of a slaveowner who had promised Nat his freedom.  Nat's father even -- Foster supposes -- made him a trustee of the Turner Baptist Church.  But Nat's family members refused to honor his father's wishes and kept him in slavery.  Nat, though, who has heard about the cities of Ethiopia where his mother came from, plans to lead slaves out of Southampton County, to freedom.  Foster then turns to the trials afterwards and portrays the white slaveowners as claiming that more slaves were involved in the rebellion than actually were -- and they did this so that they would receive compensation from the state when their slaves were executed.   Thus, one of the key witnesses -- Levi Waller -- whose family suffered the worst losses of anyone in the rebellion, appears in Foster's novel as a person who lied on the witness stand in order to convict slaves, so that he could receive money for them.  Turner's lawyer, William Parker, as well as the lawyer Thomas Gray (who published the Confessions of Nat Turner) appear in the novel, as does the prosecutor William Brodnax and defense attorney William French.

As I say, Foster bases her characters on historical figures, but she also departs from the historical record -- some of this I've already discussed, as in Turner was promised his freedom by his father.  That may have happened, but there's not evidence of this.  Another example of this is Foster's treatment of Will ("the executioner"), one of the rebels who Foster supposes survived the rebellion and fled north.  As part of the process of investigating the rebellion, Stowe meets with Will.  I'm thinking that Will died during the rebellion, probably at the first clash with the local militia at Parker's field.  And Foster turns Thomas Gray, who published the "Confessions of Nat Turner" into someone who was in on the conspiracy to make Turner into more of a rebel than he was.

I think Foster's novel is important not just for her reconstruction of the lives of the actors in the Turner rebellion, but for how she interprets the motives behind the rebellion and the trials afterwards.  There was violence aplenty during and in the wake of the Turner rebellion.  Foster makes judgments about the nature of the trials -- and the motives behind them: this was not so much about restoring order through violence (how's that for a riff onRichard Slotkin's book?) as about making money from the execution of innocent slaves.  

I see the world somewhat differently from her -- there are different motives (I see the trials more about control and less about economics).  I struggle with trying to make sense of Turner.  Was he, as an antebellum observer in Richmond asked, motivated by a desire for freedom or for vengeance?  It's hard to make someone who kills indiscriminately into a hero -- even as we may seek to understand the world of violence from which he emerged.  I'm deeply interested in why Turner chose the families he did to attack -- was this an issue of proximity or revenge?  Both?  And it's important to remember the violence in the wake of the rebellion, too.  Enslaved people were indiscriminately shot and, of course, tortured.  (This is part of the context for my observation that Django Unchained had less violence than I expected.)  As happens so often in history, the violence of slavery led to the violence of resistance, which led to even greater violence as the rebellion was put down and vengeance was extracted on those least able to bear it.

The purposes of history and literature differ, often -- though in a lot of ways they also overlap.  We can learn a lot from Foster's reconstruction of the Turner rebellion and the responses to it, especially as her re-interpretation of it challenges us to see the motives behind the system of slavery and the impulses towards freedom that clashed in Southampton from August through November 1831.

The Duel in Django

Had a very fun dinner the other night with a few friends who are legal historians (and one philosopher) and the discussion turned to Django.  I said something along the lines of, if anything Tarantino under-played the violence in the institution of slavery.  And from the looks at the table -- even from my friend who's an expert on the sexual violence of slavery -- I may be the only person around who feels that way about the movie.

But that set me to thinking some more about the movie.  Did you know that the screenplay is on the internet?  The screenplay does not entirely match the movie.  And in one respect, there is an important difference: whereas in the movie Calvin Candie purchased Broomhilda (and Django and Schultz find out about this through a title search), in the screenplay Broomhilda came into Candie's possession through a card game at the Cleopatra Club, in which Broomhilda's owner (and lover) bet her.  The owner than protested that Candie had cheated at cards and Candie threw a revolver on the table to challenge him to a duel. 

Now, I'm somewhat skeptical of the role we can properly assign to honor in the old South -- but no one can dispute that the duel is central to culture in the old South.  Bertram Wyatt-Brown's Southern Honor certainly demonstrates the importance of duels to southern life.  And it's really interesting to me that Tarantino had planned one for Django.  This is further evidence that some serious historical work went into this movie.

Essie Mae Washington-Williams (1925-2013)

I saw in the obituaries at the New York Times yedsterday morning that Essie Mae Washington-Williams passed away on Feburary 4.  She was the daughter of Strom Thurmond.  A few years back the monument on the South Carolina statehouse grounds was altered to include her as one of Senator Thurmond's children.

What a story.

The Jurisprudence of Django

Well, I've finally been able to set aside time to see Django.  Though I rarely see first run movies, I make an exception when they relate to Jim Crow or  slavery.  Wow.  So much to talk about, like the depiction of slavery -- and especially the law of slavery and slave sales.  I was pleasantly surprised -- shocked might even be the right word -- with how much law is in that movie; jurisprudence even more so.

As we were walking into the theater, my colleague Rob Smith asked if I thought there'd be a character like Fed in it?  I paused for a moment and said, probably.  That requires a little explanation.... Turn back to the late summer of 1831 during the Nat Turner rebellion.  As panic swept Southampton where the rebellion was taking place, in neighboring Sussex County slave-owners worried what would happen when the rebels reached their county.  The rebellion never got there, but that didn't stop people from preparing to meet rebellion with violence -- and with violently responding to perceived threats to slavery.

One slave-owning family was convinced that their slave Fed would join the rebels and they repeatedly spoke about it in the presence of their slaves.   I wonder about who Fed was and why his owners were so convinced he would join the rebels.  Upon hearing the speculation that Fed would join the rebels, one slave said in essence -- yes, and I'd join them too.   At trial a few weeks later, as the white community sought to regain control and retribution, that slave who said he would join the rebels was sentenced to death.  Fed, however, was not convicted -- for he had never said anything.  Fed's fellow slave was convicted of plotting rebellion; Fed, who may very well have harbored designs of freedom through rebellion, was returned to his owner to suffer what fate we will never know.

I suppose Django's character has a lot in common with Fed -- and maybe with Nat Turner, too.  What surprised me about the movie was not the violence -- in fact, if anything it was less than I expected.  I guess it's because these days I'm so used to the extraordinary violence that lay at the heart of slavery that the scene of the slaves fighting to the death for the amusement of Candie -- or the dogs tearing the run-away slave apart wasn't all that suprising.  (I had initially written disturbing, but that's obviously the wrong word -- it was incredibly disturbing, just not out of keeping with what one might expect in this kind of movie.)  I'm used to reading descriptions of extra-ordinary brutality -- not so much for amusement of the owners, though it wouldn't surprise me if that was part of slavery -- as for money and control.  I mean, "Blackhead Signpost Road" got its name from the head of a supposed rebel that was placed on the road into Jerusalem, Virginia, as a warning to other rebels.

Two things particularly interested me about this, which I want to talk about now.  First -- and some of this is sort of transparent -- is the role of law.  There are three scenes of slave sales, where contracts (and particular warranties) loom large.  Maybe Ariela Gross should be writing about this instead of me, because she is the leading scholar on slave warranties, but wow I find it interesting that the movie is so framed by law.  There's the opening scene with the "sale," the talk of drawing up a contract for the sale of "Eskimo Joe," and the bill of sale and manumission document of Broomhilda.  But law is present in a lot of other places, too.  It frames what bounty hunters can do and on several occasions the community that's rising up against the bounty hunters accepts that there was a legal justification for killing.  They even go to a local records office to see who purchase Broomhilda.  I mean, how unexpected to find a title search in a Tarantino movie?!  And then there's the pervasive talk of property -- of how Candy can do whatever he wants with his property.  Tis is straight out of Harriet Beecher Stowe's Uncle Tom's Cabin.  And pretty closely related to Thomas Ruffin's State v. Mann.

Second is the jurisprudence of all of this, such as how the bounty hunters justified their killings of both the people they're seeking and the slave-owners at Candyland.  Maybe the most poignant scene of several in this regard is when Django kills a man who's plowing a field.  Obviously Django is doing his job (and also extracting punishment for past crimes), but he's bothered that he's killing a person with a family.  This may inspire people to go back and think again about the duties of people caught up in a system that is violent -- or in the case brutally oppressive.  I guess Django is in some ways like the anti-slavery judges that Robert Cover (and Harriet Beecher Stowe) wrote about, who recognize inhumanity, but still engage in the system.  Or maybe like lawyers for slaves, who try to work within a system that is unfair but still seek some balance for their clients.  Shades of Melville's statement in Moby Dick, "who ain't a slave?"

And what do we make of Dr. Schultz' final words after shooting Candie, "I had to do it."  (Or maybe it was "I couldn't resist.") In the moments leading up to the shooting, he was turning over in his mind Candie's order to have D'Artagnan fed to the dogs.  Schultz, though quite dependent on law for his living -- and someone who recognized the constraints of law (he convinced Django that they couldn't just go and rescue Broomhilda) -- he stepped outside of the southern law and he did so because he believed he had to.

I'm going to think on this some more.  Books and writing are all over this movie -- the contracts and receipts for sale; the record books; the wanted handbills; ... even the library at Candyland, where Dr. Schultz went to look for a copy of Alexandre Dumas' Three Muskateers.  God I love the history of the book.  One final thought -- don't you love how Broomhilda's emancipation papers were a pre-printed form?!  Further evidence of how far the technology of printing was put to use by law.  And one of these days I'll talk about the cemetery scene, too!

Reading Professor Obama

I want to talk a little bit more about a paper that Stacey Gahagan and I posted last fall, which we call "Reading Professor Obama." The title is a riff on James Kloppenberg's fabulous intellectual history of Obama, Obama Reading: Dreams, Hope, and the American Political Tradition, which reconstructs the Obama's intellectual culture from college through the presidency.

We looked at the syllabus for his 1994 course on "Current Issues on Racism and the Law" at the University of Chicago.  This got some attention back in 2008 when theNew York Times first posted on it and then ran commentary by a number of distinguished law professors -- like Pam Karlen, Akhil Amar, and Randy Barnett.  (I blogged about it back in August 2008.)  We contribute two things to the discussion that I think are important.  First, we tried as best we could to see just exactly what he assigned -- often it was a little unclear what pieces of articles and books he was assigning, but we made an educated guess about this.  And then we read that work to see what kind of ideas students would likely take away.  In contrast to those who link Obama closely to Derrick Bell -- and in spite of the fact that Obama assigned a lot of excerpts from Bell's Race, Racism, and American Law casebook -- Obama's readings from people like Anthony Appiah and George Fredrickson reveal that he likely departed from Bell's ideas about the permanence of racial classifications and of racism.  Moreover, his concluding assignment was Cornell West's essay written in the wake of the 1992 LA riot.  West's final sentences -- and therefore the last words that Obama assigned -- are “Let us hope and pray that the vast intelligence, imagination, humor and courage in this country will not fail us. Either we learn a new language of empathy and compassion, or the fire this time will consume us all.”

Our second insight -- really Stacey Gahagan deserves the credit for this -- was to look pretty closely at the class presentation topics that Obama suggested for the students.  For after the first four classes, groups of students made presentations on topics of their choice, though Obama provided twelve broad categories for them to choose from, including "the all-black, all male school," "racial gerrymandering," "welfare policy and reproductive freedom" and "reparations."  We looked closely at the topics and the questions Obama posed for the students on each one.  Stacey Gahagan linked those questions to the burgeoning critical race theory (CRT) literature in the early 1990s.  This suggests that Obama was deeply interested in issues that were in discussion in CRT circles.  Now, I think that no matter one's orientation towards CRT, a course on "current issues in racism and the law" should address a lot of these same issues.  Still, reading this syllabus makes me think that Obama had a closer affinity for CRT than one might expect given his usual and well-known posture of refusing to take sides on controversial issues.

One of the things I particularly like about the paper is our methodology -- we're trying to draw inferences from the documents Obama included in the syllabus.  And while certainly there are ideas in there he disagreed with -- such as, one imagines, Robert Bork's New Republic essay on federal civil rights law -- we get a sense of the ideas that were discussed.  That gives us a sense of what he was interested in; and I think we can draw some inferences from the central directions of the readings.  This is core intellectual history material -- and I've used a similar method in recovering the ideas about jurisprudence and constitutionalism at southern universities before the Civil War.

Our paper received some attention during the election season when the Daily Caller discussed it in an article on Obama's ideas about race.  They used our article to suggest that Obama was closely linked to CRT.  And while I agree that's one upshot of the paper, I think the central tendency of our finding is that there are significant differences between Obama and Derrick Bell.  This distance from Bell is particularly important given the discussion last spring about the "rediscovered" tape of Obama introducing Bell.  Our hope is that people will turn to the syllabus and our paper as they continue to seek the origins and contours of Obama's thinking about race.

Anyway, the paper's on ssrn and we'd be most interested in your thoughts.  David Garrow was kind enough to give me a detailed critique of the paper.  He emphasized Obama's interested in the practical rather than the theoreotical (in this case the CRT literature), among other points.  And as I said last August when I posted on this, we'd be most, most interested in the thoughts of people who took that course -- especially if any of you still have the readings packet.

The image of the University of Chicago Law School is from wikipedia.

Commemorating and Teaching the Emancipation Proclamation (and Farewell!)

Today marks the 150^th anniversary of the Emancipation Proclamation. In case a primer is in order, the National Archives has posted images and a transcript of the original document. Over the next year, libraries, museums, and universities will be commemorating the Proclamation with public lectures, conferences, workshops, and exhibitions: As an example, the Schomburg Center at the New York Public Library has on display “Visualizing Emancipation,” an exhibit of eighty antebellum and postbellum photographs of enslaved and free persons. It would be great to know if any of you are teaching the Proclamation to your law students; if so, how and in what classes?  I am not teaching Property this semester, but plan to include a mini-module on the Proclamation when I teach it again this Fall.

Today also marks the end of my stint in the Lounge. I have fully enjoyed the community and appreciate the opportunity to engage here; and even though my trivia skills remain lackluster, I look forward to rejoining the ranks of the blog’s avid readership.  Keep those hard-hitting posts coming, fellow Loungers . . . and Happy New Year one and all!