The Faculty Lounge

How do you enforce an unenforceable contract for freedom? (Part 2)

In a prior post, I related the facts of the freedom petition of Beverly Dowling. Briefly stated, Dowling had struck an oral agreement with his mistress, Sophia Bland, to purchase his freedom for $200, paid within six months of the date of the agreement. It took Dowling nearly two years to collect all of the money. During that time, Bland appointed an agent to do what he think proper with Dowling, and the agent reported him as a runaway and inquired as to what price he could get for Dowling. Dowling subsequently traveled to New York on a steamboat as a waiter, and returned with the last of the $200 purchase price, but was arrested and then sold to Austin Woolfolk. Dowling petitioned the Baltimore City Court. (For a more complete set of facts, see the original post.

The judges of the Baltimore City Court instructed the jury that if they found that Sophia Bland had indeed made an agreement that it could be taken as evidence that she had given her implied consent to Beverly Dowling to travel across state lines. If she gave this consent, and if he had then traveled to New York and become free by New York’s laws, then Sophia Bland could not reclaim Dowling as a slave without violating Maryland’s law forbidding the importation of slaves into the state. The jury found for Dowling.

On appeal, Bland’s attorneys argued that 1) slaves were not competent to make contracts, and especially not with their owners; 2) the court should not allow the oral agreement to be proof of the owner’s consent for Dowling to leave the state. Several reasons were summarized in the record for this second argument, namely that the presumption of law should be against consent when the act resulted in a forfeiture of property and that the law did not presume that slaves who went about the state at their liberty had authority from their masters. In short, Bland’s attorneys said that the court erred in leaving the matter to the jury at all.

Justice Stephenson Archer of the Maryland Court of Appeals delivered the opinion of the court upholding the Baltimore City Court’s instructions. He agreed with Bland’s attorneys on their first point, holding that slaves could not make contracts (he also spent a good deal of time knocking down Dowling’s attorneys arguments to the contrary). But he disagreed as to the second point, holding that it was proper for the judges to leave the jury to discover whether the agreement was ample evidence of the transfer of discretion from the owner to the slave, which therefore meant Bland’s consent could be implied.

This second holding could have gone either way. In fact, Bland’s arguments appear to be more in line with Maryland law than not. It was well established that manumissions must be in a formal legal document (deed or will) and strictly meeting all the forms of law (two witnesses, properly recorded, etc.). Slaves also needed written authorization to carry out certain acts on their own, including travel within the state and to sell certain items. Would it not have made more sense for court to have held that permission to leave the state must be written?

Perhaps more to the point, what juridical justification could there be for the very idea of a general transfer of discretion? Since there was no real analogue in slave law for such a principle (at least, not one in which I am aware), it had to be borrowed from elsewhere—most likely from the law governing principal and agent. As the principal, Bland was bound by what her agent did, and her agent (Dowling) was empowered to act as he saw best fit in order to carry out her wishes (that is, to raise the money). But to make this argument is to treat the slave as analogous to a person and governed by the laws governing persons.

Historians are somewhat divided on the subject of whether slaves actually had rights at law. Andrew Fede has been a leading voice denying that the American law of slavery extended any rights, formal or informal, in theory or practice, to slaves. Martha Jones, Anne Twitty, and others have argued that slaves did have rights that the white man was bound to respect, and that courts had to take these rights seriously. Bland v. Dowling might speak to this disagreement. On the one hand, the court had made an unenforceable contract enforceable. That was certainly the result of the case, as Dowling went free and disappeared from Baltimore and the grasp of Sophia Bland. But on the other, the Maryland Court of Appeals had made the entire case hinge on the mistress’s agency and the accident of having taken a steamboat to New York City.

It is tempting to conclude, as several famous historians have, that American slave law was by nature unstable. That it could not handle the contradictions of treating people simultaneously as people and property. For these historians, Bland v. Dowling might be just more grist for the mill. I’m not so sure. I think it more likely that the judges of the Maryland Court of Appeals just wanted to hold Sophia Bland to her word. And through the law, they found a way.

(I would like to thank Andrew Fede for some critical comments he gave me after my initial post, including some very helpful factual information that my research had not yet turned up.)

Fugitive Slaves as Constitutional Actors

When constitutional law professors talk about constitutional law, they most often refer to court cases, especially the United States Supreme Court’s interpretation of the Constitution.  However, I am more interested in popular constitutionalism, constitutional interpretation outside of the courts.  Political advocates engage in popular constitutionalism when they invoke the constitution to support their claims.   Sometimes political activists expressly invoke constitutional language and make arguments that sound in law.  Other times, they invoke more general constitutional values in their political rhetoric.  Perhaps the most eloquent form of popular constitutionalism occurs when people with little or no legal knowledge demand rights that sound in constitutional law.  Fugitive slaves were one such group of constitutional actors. 

Prior to the Civil War, some antislavery argued that slavery was unconstitutional.  For example, they claimed that slavery violated the right to liberty under the Fifth Amendment Due Process Clause and natural rights which, they claimed, were protected by the Preamble to the Constitution.  Some antislavery constitutionalists made arguments before courts, which were ultimately unsuccessful.  However, most antislavery constitutionalists made their arguments in the political context.  They formed antislavery parties, including the Liberty and Free Soil, Free Labor parties.  Many of these popular constitutionalists were founders of the Republican Party. 

A second group of antislavery activists participated in the underground railroad, which helped fugitive slaves to escape.  For example, in 1858 leaders of the town of Oberlin, Ohio, acted together to rescue an alleged fugitive slave who had been kidnapped.  Several of them were tried in federal court for violating the 1850 Fugitive Slave Act, and two were ultimately convicted.  These activists knew that federal law prohibited them from assisting fugitive slaves, but they claimed that they followed a higher law under which slavery was illegal. They did not expressly invoke the constitution, but they asserted their right to resist federal law.

The fugitive slaves themselves were a third group, at the heart of this resistance.  Fugitive slaves asserted their own rights claims by attempting to escape slavery.  Fugitive slaves defied all odds, and certain punishment, if not death, if they were captured.  Their goal was to escape to northern states and into Canada, where they could live a free life.  Some fugitives sued in courts for their freedom, and surprisingly, some won.  But most fugitive slaves had to hide from slave catchers, under constant threat of capture (as were free blacks).  With their actions, fugitive slaves served as a catalyst for constitutional change.

Fugitive slaves brought about a constitutional crisis.  Tensions mounted between people in northern states such as Ohio, who wanted to protect fugitive slaves, and southern slave owners, who believed that they had a right to have their slaves returned to them.  Southern slave owners had the law on their side.  Federal Fugitive Slave Acts enforced their right to retrieve their slaves.  In the Dred Scott decision, the United States Supreme Court agreed that slaveholders had a constitutional right to own slaves, rejecting Scott’s claim that he could free himself by fleeing to a free state or territory. 

Nonetheless, fugitive slaves and northern antislavery activists persisted, and continued to argue against the legality of slavery.  Ultimately, these tensions led to the Civil War which created the conditions that enabled the end of slavery.  During the war, slaves fled across northern battle lines, demanding freedom, and some Union soldiers blocked the slavecatchers who pursued them.  Congress authorized military officials to “confiscate” the fugitives and set them free, a significant step in the campaign to end slavery.  After the war, Republican members of the Reconstruction Congress abolished slavery and enshrined the activists’ rights claims into law with the 13^th, 14^th and 15^th Amendments and legislation enforcing those amendments.

We are approaching the end of Black History month, in which we celebrate the contributions that African Americans have made throughout our history.  We should not forget fugitive slaves, who helped to bring about the end of slavery and the expansion of individual rights in this country.

How do you enforce an unenforceable contract for freedom?

In 1835, the Baltimore City Court heard the freedom petition of Beverly Dowling. The basis of his case was a parol contract he had made with his mistress, Sophia Bland. By statute, Maryland slaves could only be manumitted by deed or will, and even then only under specific circumstances. Beverly Dowling could claim neither a deed of manumission nor any under a will. Nonetheless, he prevailed in the case.

The record of the Baltimore City Court (housed at the Maryland Archives) holds some very interesting facts. On August 7, 1833, Beverly Dowling and Sophia Bland made an agreement: his freedom for a payment of $200. Dowling promised $100 up front and $100 over six months. On August 17, 1833 he made a payment of $100. It would take him another fourteen months to make an additional payment of $23. We know the precise timing of the payments because Beverly Dowling deposited them in the Bank of the Chesapeake where he received the antebellum equivalent of a bank check and a receipt from the bank’s cashier before paying Sophia Bland’s agent.

A lot happened in the fourteen months between Beverly Dowling’s first payment of $100 and second payment of $23. Sophia Bland’s agent wrote several letters to her complaining about the arrangement. (The letters did not make the appellate record because the court refused to admit them into evidence.) On June 7, 1834, Sophia empowered another agent of hers “to act as he thought proper” regarding the management of her Baltimore slaves. About a week later, this second agent instructed the Baltimore constable to arrest Beverly Dowling and “inquire what price could be had for him.”

All of this happened without Beverly Dowling’s knowledge. It was not until he made his second payment of $23, on October 25, 1834, that James Law told Dowling that “his mistress was not satisfied with his conduct, and would not ratify the contract she had made to set him free,” presumably because he was so tardy with his payment. This was news to Dowling, who offered to pay interest on the overdue amount.

Dowling was clearly spooked. The trial record suggests that he took extra precautions making his next payment of $50, on June 1, 1835 (nearly nineteen months after his first payment). At trial, the cashier of the Bank of the Chesapeake testified that this was the “first time” that he had heard about the contract, and that he had heard about it from Sophia Bland herself. Given that he had been receiving the payments all along, it seems reasonable that Dowling himself made certain to have the cashier note the precise reason for his payments to his mistress. Then Dowling, sometime between June and October of 1835, worked as a waiter on a steamboat from Baltimore to New York City in order to earn the remainder of the money to buy his freedom.

In October of 1835—just over two years after he had entered into a contract to purchase his freedom—he made his last payment of $27 to the bank. But Sophia Bland’s agent refused the check and Dowling was arrested on the streets of Baltimore as a runaway. While in jail, Bland sold Dowling to Austin Woolfolk of Baltimore. And then Dowling filed his petition.

The judges of the Baltimore City Court did not instruct the jury that the contract was enforceable. Rather, they instructed the jury that, if they found from the facts that Sophia Bland had indeed made the contract that it could be taken as evidence that she had given an implied consent to her slave to travel. If she gave this consent, and if he had then traveled to New York and become free by New York’s laws, then Sophia Bland could not reclaim Dowling as a slave without violating Maryland’s law forbidding the importation of slaves into the state. The jury found for Dowling.

There are several remarkable aspects about this case. Beverly Dowling may not have had a written contract, but he had a trail of evidence, including receipts for his payments to Sophia Bland. Her lawyers took this seriously, going to great lengths to prove that, even if such a contract had existed, it was Dowling who had breached its terms. Her consent to leave the state could not inferred and, in any case, her lawyers argued that the facts proved she had withdrawn her consent well before Dowling’s travel to New York. The judges refused to admit pivotal evidence in this regard (rejecting James O. Law’s letters as hearsay) and refused to instruct the jury in her favor.

Why would they do so? Sophia Bland was a rich woman, a resident of Annapolis and the sister of Theodorick Bland, the High Chancellor of Maryland. If there was local animus in Baltimore against the Bland family, I have found no evidence of it. There was no case law in Maryland holding that slaveholders who consented to their slaves’ travel to a free jurisdiction lost their property interest. The most plausible conclusion, at this stage of my research, is that the judges invented a technicality to allow the jury space to reach the conclusion that the spirit of the contract ought to be honored.

Bland’s lawyers, of course, had good reason to believe they would prevail on appeal. I will touch on this in another post. But in the mean time, the judges and jury of the Baltimore City Court had indicated that African-Americans did indeed have rights that the white man was bound to respect.

(One note—I have not mentioned in this blog post my considerable debts to the scholarship of Al Brophy, Martha Jones, Kelly Kennington, Loren Schweninger, Rebecca Scott, Anne Twitty, and Lea VanderVelde, all of whom have written extensively on such freedom petitions, and anyone familiar with their scholarship will see some parallels between this case and the evidence that they analyzed.)

Race, law, and the Super Bowl

The Super Bowl is the National Football League’s championship game, an advertising extravaganza in which 100 million television viewers are expected to watch the New England Patriots and the Philadelphia Eagles compete for the Lombardi trophy.

However, the Super Bowl was not always the NFL’s championship game. In its earliest days, the Super Bowl pitted the NFL champion against the champions of a completely different league: the American Football League. The rivalry between the NFL and AFL is not only an interesting chapter in sports history, but also a turning point in the racial dynamics of professional football, one with ramifications that are still felt today.

Teaching About Slavery in Schools

A new report issued by the Southern Poverty Law Center shows that our nation’s schools are failing at teaching the history of slavery in the United States to our children.   According to the report, “Schools are not adequately teaching the history of American slavery.  Educators are not sufficiently prepared to teach it.  Textbooks do not have enough material about it.”  Too often, slavery is romanticized and its cruelty underplayed.  Students do not learn about the centrality of slavery to our nation’s economy and overall history.  As a result, only 8 percent of 12^th graders surveyed identified slavery as the cause of the Civil War.   

As a scholar of the Reconstruction Era with a daughter currently taking AP U.S. History, this issue is especially interesting to me.  Unfortunately, I am not at all surprised.  Over the course of our history, the history of slavery and the Reconstruction Era has been heavily contested and politicized.  During the early Twentieth Century, the dominant school of history, known as the Dunning school, framed Reconstruction as northern domination and exploitation of the south.  In popular culture, the movie “Gone with the Wind” reflected this view.  Starting in the 1960s, and inspired by the Civil Rights movement, historians such as Eric Foner and Michael Les Benedict shifted the dominant narrative and showed that Reconstruction was a time when the federal government established fundamental rights for freed slaves and all people in the United States.   However, the new report shows that this historical consensus is not being adequately taught to our children.

It is not surprising that the dispute over the history of this era in the academy spilled over to our country’s elementary and secondary schools.  Michael Kent Curtis details this history in this marvelous essay.  In the early and mid-Twentieth Century, school children in northern states learned about the “War Between the States” and those in southern states studied the “War of Northern Aggression.”  Recent debates over the statues of confederate war heroes revealed the extent to which southern states romanticized the “lost cause” of the southern rebels.  Teaching about the brutal reality of slavery undermined this narrative, as did the indisputable fact that the confederacy was founded to protect slavery (made clear in the Confederate Constitution).  In the north, downplaying slavery implicitly justified the federal government’s failure to intervene in the Jim Crow south, and ignoring racism and segregation in the north.

Unfortunately our nation’s schools have not made much progress in the teaching of the complex and difficult subject of slavery and race in our nation’s history.  The continued failure to adequately teach about slavery is both disappointing and consequential.  The history of slavery still profoundly affects our country.  We can see echoes of slavery in the vestiges of Jim Crow, the mass incarceration of African Americans, the effective use of racism as a political rallying cry.  Misunderstanding our history also affects our law, reflected in the Supreme Court’s race blind approach to the Equal Protection Clause and restriction of voting rights laws.  The history of slavery is profoundly important, and it always will be in our racially troubled nation.

Black Power in a Prison Library

Happy February 1 -- and the start of African American history month.  I'm going to recycle a post I've couple before regarding books about black power that were added to a prison library back in the early 1970s. 

We are hearing a great deal about the project of “the history of the Book” these days.  It aims to understand the role of books as vehicles of change: how do books contribute to changes in society, how do they help to create and sustain identity.   Sometimes historians look at books, to measure a culture.  What does Invisible Man say about the culture of the United States on the eve of Brown?  What do Booker T. Washington’s Up From Slavery and W.E.B. DuBois’ Souls of Black Folk say about Jim Crow?

At other times, historians draw inferences about people from their libraries.  This post talks about a list of about 120 books on the "black experience" that Judge Don Young ordered to be placed into the Marion, Ohio prison library back in 1972,  Taylor v. Perini, 413 F.Supp. 189, 215-19 (D.C. Ohio 1976).  What interests me about the list is its potential for mapping the sources of identity in the late 1960s and early 1970s.  What, then, are the books that the judge ordered added?

The Harlem renaissance and its leaders are well-represented: W.E.B. DuBois’ Souls of Black Folk; Richard Wright’s Native Son and Uncle Tom’s Children; James Weldon Johnson’s Autobiography of an Ex-Colored Man; Claude McKay’s Home to Harlem (1928) along with some other Renaissance-era literature, like Rudolph Fisher’s Conjure Man Dies: A Mystery Tale of Harlem (1932) and Walls of Jericho (1928)).  Situated between the renaissance and the 1960s is Invisible Man.

There is the early 1960s literature that captured the possibilities of the Civil Rights movement:  Maya Angelou’s I Know Why the Caged Bird Sings (1969); King’s Where Do We Go From Here, The Trumpet of Conscience, Stride Toward Freedom (1958), and Why We Can’t Wait; Alan Westin’s Freedom Now! The Civil-Rights Struggle in America (1964); and Howard Zinn’s SNCC:  The New Abolitionists (1968).  Or, in the case of Claude Brown, Manchild in the Promised Land that explained life under Jim Crow and conveyed something of what it was like to grow up in a place many thought of as the promised land, however much it might not have been.   I might also put John Killen’s And then We Heard Thunder (1964), James Baldwin’s Tell Me How Long the Train’s Been Gone (1968); John Alfred Williams’ The Man Who Cried I Am (1967) in that category–they are situated in a place between the optimism of the Civil Rights era and the later separatism.  They ask, with King, what now?

The Thirteenth Amendment and Freedom of Contract

 

When the Thirteenth Amendment abolished slavery and involuntary servitude, it altered the fundamental principles underlying our country’s labor and employment law.  Prior to the Thirteenth Amendment, the paradigm of labor and employment law was unfree labor.  The Thirteenth Amendment replaced that paradigm of unfree labor with one of freedom of contract. 

The most obvious example of unfree labor in the antebellum United States was the institution slavery.  Slaves were under the complete control of the “masters” who exploited their labor.  Under the laws of slave states, slaves were treated as property and denied the most basic of human rights.  But slaves were not the only unfree workers in antebellum America.  Thousands of immigrants came to the United States as indentured servants, bound to their employers for terms of years and subject to criminal sanctions if they left those employers.  Other workers served as apprentices who were also bound to their masters for a term of years.  Early industrial workers were often required to sign year-long contracts, bound to their employers regardless of the wages and conditions of work.  These workers were unable to leave exploitative employers and thus lacked any means to improve their wages and conditions of work.

During the antebellum era, many anti-slavery activists argued that slavery violated fundamental human rights.  Above all, slaves were denied the right to free contracts.  They could not enter into contracts with employers, were prohibited from engaging in most commercial transactions (especially real estate transactions), and were often denied the right to enter into marriage contracts.  Anti-slavery activists generally agreed that freed slaves should enjoy the right to contract.  For many, the right to contract was a central feature of their antislavery ideology.  The Thirteenth Amendment also extended the right to free contracts to northern workers by abolishing “involuntary servitude” as well as slavery. 

But what did the right to contract mean?  Did it mean a formal right to contract without government assistance?  Or did the right to contract include the right to government intervention to equalize bargaining power and protect against exploitation?

Some members of the Reconstruction Congress believed that the formal right to contract was sufficient absent government support.   Many Freedman’s Bureau officials agreed, allowing former slaves to enter into contracts with their former masters without sufficient oversight of exploitative contracts.

However, a majority of the Reconstruction Congress chose the latter approach.  Immediately after the Thirteenth Amendment became law, members of the Reconstruction Congress began to enact legislation enforcing the right to free contracts.  Their primary focus was employment contracts.  The 1866 Civil Rights Act, which prohibited race discrimination in contracts, was targeted at southern Black laws that attempted to impose involuntary servitude on newly freed slaves.  The 1867 Anti-Peonage Act prohibited workers from either voluntarily or involuntarily entering into contracts which amounted to indentured servitude.  The 1868 Eight Hours Act limited the hours of work of federal employees.  All of the laws enhanced the power of workers to enter into fair and free contracts.

The debate over the meaning of freedom of contract continued into the Twentieth Century.  More on that later.

 

Martin Luther King, Jr. and A Positive Right to Free Labor

This week, I had the honor and pleasure of speaking at the Vermont Law School Celebration of Martin Luther King, Jr.  Preparing my talk gave me the opportunity to think about the civil right’s movement’s advocacy for a positive right to free labor.  As I have discussed in earlier posts, a positive right to free labor is the right to work free of undue coercion, for a fair wage, without discrimination based on immutable characteristics.  In my book, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction, I argue that the Reconstruction Congress established a positive right to free labor with the Thirteenth Amendment and statutes enforcing that amendment.  Today, I want to talk about the labor and civil rights movement’s efforts to promote a positive right to free labor in the Twentieth Century.

After Reconstruction, the southern United States descended into the Jim Crow system marked by racialized violence, the deprivation of civil and political rights, and the exploitation of black labor.  The leading rights movement in the early Twentieth Century was the labor movement.  Labor leaders asserted the right to organize, bargain collectively, and strike.  They also fought for protective legislation such as minimum wage and maximum hours laws.  Millions of workers engaged in strikes and demonstrations to advocate for these rights.  During the 1930s, the New Deal Congress responded, enacting the National Labor Relations Act, which recognized a federal right to organize; the Fair Labor Standards Act, which established a minimum wage and maximum hours; and the Social Security Act, which established an economic safety net that included unemployment insurance for workers. 

These New Deal measures enforced the two prongs for the positive right to free labor.  Belonging to a union empowered workers to bargain for fair wages and improved conditions of work.  To paraphrase Justice Robert Jackson in the case of Pollock v. Williams, belonging to a union gave workers “the power below to redress . . . a harsh overlordship or unwholesome conditions of work,” and combat coercive labor practices.  Jackson’s Pollock opinion interpreted the Reconstruction Era Anti-Peonage Act and articulated a judicially enforceable standard to for determining when employment practices create an unduly coercive involuntary servitude. The FLSA raised the wages of workers who did not belong to unions, also enforcing the second prong of a positive right to free labor. 

The third prong of a positive right to free labor, the right to work free of discrimination, was missing from New Deal measures.  Moreover, domestic and agricultural workers, many of whom were southern blacks, were omitted from New Deal protections. This glaring omission was due to President Franklin Roosevelt’s reliance on segregationist Dixiecrats for his New Deal program. However, at the urging of labor leader and civil rights activist A. Philip Randolph, Roosevelt created a Civil Rights Section in the Department of Justice.  As Risa Goluboff describes in her iconic book, The Lost Promise of Civil Rights, CRS lawyers sought to extend the New Deal promise of a positive right to free labor to black domestic and agricultural workers by enforcing the Anti-Peonage Act against exploitative employers. 

Meanwhile, the labor movement helped to sow the seeds for Dr. King’s civil rights movement. Yes, some unions discriminated on the basis of race, trying to exclude blacks from good jobs.  But others, such as the CIO in the 1930s, fought racism and sought to organize workers of color.    Moreover, Black union activists such as A. Philip Randolph played a leading role in the northern civil rights movement.   Randolph eventually became a mentor of Dr. King. Along with United Auto Workers President Walter Reuther, Randolph helped to organize the 1963 March for Jobs and Freedom, where King ascended to national prominence with his famous “I Have A Dream” speech.  Responding to King’s advocacy, Congress enacted the 1964 Civil Rights Act, which prohibits race and gender discrimination in employment, enforcing the third prong of a positive right to free labor. 

Dr. King is best known for his fight against segregation and for voting rights. Towards the end of his 1963 speech, King uttered the oft-quoted line, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” This beautiful line expresses an aspiration towards which our country is still striving.  However, to focus too narrowly on this part of one of King’s speeches is to risk overlooking the truly radical nature of King’s advocacy for economic rights. Protections against race discrimination alone are not sufficient to redress the chronic poverty of people of color in our society, economic disparities which date back to slavery.

King well understood the link between racial discrimination and economic subordination.  In his 1963 speech, King pointed out that blacks were not only “badly crippled by the manacle of segregation and chains of discrimination” but also living “on a lonely island of poverty in the midst of a vast ocean of material prosperity.”  In the last years of his life, King turned his focus to the poverty in northern ghettos and supported the Poor People’s Movement. King ended his life in Memphis, where he marched with striking city sanitation workers. Speaking to those workers the night before he was assassinated, King declared, “in the human rights revolution, if something isn't done, and done in a hurry, to bring the colored peoples of the world out of their long years of poverty, their long years of hurt and neglect, the whole world is doomed.” We should all heed King's call.

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too: Wrap-Up

In this series of posts, I’ve discussed a new draft that Phil Cook and I are circulating, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?. Our claim, which I laid out in my first post, is that there is a stronger case for compensating kidney donors than for compensating participants in violent sports. If this proposition is accepted, one implication is that there are only three logically consistent positions: allow compensation for both kidney donation and for violent sports; allow compensation for kidney donation but not for violent sports; or allow compensation for neither. Our current law and practice is perverse in endorsing a fourth regime, allowing compensation for violent sports but not kidney donation.

A common argument in support of the ban on kidney donation is that if people were offered the temptation of substantial compensation, some would volunteer to donate against their own “true” best interests. This argument is often coupled with a social justice concern, namely that if kidney donors were paid, a large percentage of volunteers would be poor and financially stressed, and for them the offer of a substantial financial inducement would be coercive. In sum, a system of compensated donation would provide an undue temptation, and end up exploiting the poor.

To these arguments we offer both a direct response, and a response by analogy with violent sport. My posts have touched on a few key points. First, the medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. On the other hand, the consent and screening process in professional sports is not as developed as in kidney donation. The social justice concerns stem from the fact that most players are black and some come from impoverished backgrounds.

Note that these arguments focus on the donors’ welfare, and ignore the welfare of people in need of a kidney. A comprehensive evaluation of amending NOTA to allow compensation requires that both groups be considered. Such an evaluation, conducted by Philip Held and colleagues, reached the following conclusion about a regime in which living donors were offered enough compensation ($45,000) to end the kidney shortage: “From the viewpoint of society, the net benefit from saving thousands of lives each year and reducing the suffering of 100,000 more receiving dialysis would be about $46 billion per year, with the benefits exceeding the costs by a factor of 3. In addition, it would save taxpayers about $12 billion each year.”

As stated by Held et. al., “dialysis is not only an inferior therapy for end-stage renal disease (ESRD), it is also almost 4 times as expensive per quality-adjusted life-year (QALY) gained as a transplant.” This means that the Medicare (which pays for the bulk of ESRD treatments) dollars currently spent on dialysis could be reallocated to compensating kidney donors, saving lives and tax dollars in the process. 

As I said, even a series of posts gives only an introduction to our arguments and evidence, so download the full paper here.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

Paying Kidney Donors, Football Players, And Boxers: Exploitation, Race, Class

Paying Kidney Donors, Football Players, And Boxers: Exploitation, Race, Class

In prior posts, I introduced the question, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?, and argued that the medical risks to a professional career in football, boxing, and other violent sports are greater than the risks of donating a kidney and that the consent and screening process in professional sports is not as developed as in kidney donation.

Although the primary focus of our paper is on the medical risk associated with living kidney donation, we also briefly discuss concerns about exploitation, coercion, race, and class, again with an analogy to violent sports. Living kidney donors in the United States have above-average incomes (after adjusting for sex and age). In a new regime in which donors were paid a substantial fee, it is predictable that the influx of volunteers would have below-average incomes. The prospect of financially stressed individuals attempting to make ends meet by “selling” a kidney raises a red flag for some ethicists. A compensation regime would expand the choice set for those in comfortable circumstances, but those in desperate circumstances might feel compelled to sell a kidney; in that sense, the option of selling could be seen as “coercive.” Furthermore, a system that in part depended on the poor to supply kidneys could be seen as “exploiting” the poor.

We believe that using words like “coercion” and “exploitation” to characterize the introduction of a new option by which poor people (and others) could earn a substantial amount of money provides more heat than light on this situation. The legitimate ethical concern is that so many Americans are poor, with inequality increasing over time. But that observation does not support a ban on compensation, which in fact limits the options available to the poor and thereby makes a bad situation (their lack of marketable assets) worse. But for anyone not persuaded by this argument, we note that these social-justice concerns apply with at least equal force to compensating boxers; most American professional boxers were raised in lower-income neighborhoods, and are either black or Hispanic.

As more has become known about the dangers of the repeated head trauma, similar arguments regarding football have become more prominent. About 70% of NFL players are black, and Pacific Islanders are also overrepresented as compared to the American population. Accordingly, much attention has been paid to the concussion crisis as a race and class problem. As one observer recently noted, “What’s a little permanent brain damage when you’re facing a life of debilitating poverty?” In reality, NFL players are better educated themselves, and come from better educated homes, than is average for Americans, in part because the NFL typically recruits college students. Still, some NFL players, like some would-be kidney donors, come from poverty.

Of course, this is only a taste of our arguments and evidence, so read the full paper here. In my next post, I’ll recap and wrap up.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

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The Jurisprudence of The Help

I'm excited to be back in the classroom in the spring and particularly excited to be teaching trusts and estates.  As I've been pulling my course together -- and dusting off a lot of notes about the Alabama probate code -- I have been thinking back to the movie The Help.  I want to use a vignette from The Help about a testator who "devised" her domestic servant to one of her children.  (How is it possible that movie came out six years ago?!)  Here's the excerpt from the screen play with the vignette that Cora tells about her relationship with her employer and her employer's daughter:

I worked for Miss Jolene's mother 'til the day she died. Then her daughter, Miss Nancy, asked me to come and work for her. Miss Nancy's a real sweet lady. But Miss Jolene's ma done put it in her will I got to work for Miss Jolene. Miss Jolene's a mean woman. Mean for sport. Lord, I tried to find another job. But in everybody's mind the French family and Miss Jolene owned me. Owned me.

And then the vignette comes up again near the end of the movie when several young women are trying to figure out if the book is based on their lives.  One woman says, "And, Jolene, didn't your momma leave Cora to you in her will?"  To which Jolene responds that, "Well, yes...But that's not odd, is it? Happens all the time, right?"  Well, there you have it, testimony that this might have happened with some frequency!

I've got a friend in Jackson searching for an actual example of such a will -- but for the spring I may just talk about this as one of many expressive statements that testators put into wills.  We'll see if an actual example ever turns up.  Still, you never know what you'll find in courthouses....

I don't see that vignette in Kathyrn Stockett's the novel The Help.  Yet, there is much law in the novel.  For instance, Skeeter reads a pamphlet "Compilation of the Jim Crow Laws of the South." What I'm not sure is whether the pamphlet was designed originally to critique Jim Crow--though I suspect it was.  (And maybe along the lines of James Chadbourn's Lynching and the Law.) In particular, though, I am intrigued by this: one of the women that Skeeter interviews asks about what law reform she thinks might be useful.  It is, actually, a question designed to show that reform is unlikely to be effective.  As in, "what kind of law could possibly work to improve my life?"  That question captures the sense of the limits of law.  There is, though, another exchange that blurs the line between law and culture (much as the vignette about Cora being devised to Miss Jolene does) -- it is where one of the women tells Skeeter that "Half this stuff don't have nothing to do with colored rights. ... Look to me like you just writing life." This is strangely reminiscent of Thomas Carlyle's essay "On History," where he talks about law as the stage on which we act.  It is also an important reminder that law and life blur together -- as the recent excellent literature on the law of social movements also makes clear.  That is, while Skeeter is looking at Jim Crow laws and trying to write a sociological analysis of domestic workers she's learning that law and social norms blend together.  For the women she is writing about, there are not distinct boxes of Jim Crow law and treatment by employers.

  You can check out those vignettes here.

Obviously I'd love any advice readers have on where to locate such a will -- or one like it.  Maybe a trip over to the Jackson probate office is in order.  I'm always pleasantly surprised by my trips to probate clerks.  You never know what cool wills you'll find.

Milewski, Litigating Across the Color Line

Over at the legal history blog Melissa Milewski spent last month talking about her new book Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights, which is about African Americans in who litigate against white people during the era of Jim Crow.  This is an exciting book and an important project.  You can also read about it in the November 2017 issue of The American Historian and also find some important teaching resources at her website.  Litigating Across the Color Line has some obvious connections to the growing literature on free people of African descent who litigated in the southern courts before the Civil War -- and even the occasional enslaved person who sued (or had a white person sue on their behalf) in the pre-Civil War south.

Joe Arpaio’s Pardon as a Problem in Remedies

My Lounge colleague Steve Lubet recently discussed in this space the op-eds published elsewhere by Martin Redish and Noah Feldman concerning President Trump’s pardon of former Maricopa County Sheriff Joe Arpaio.  Arpaio was found to be violating the Constitution by having his deputies conduct “saturation patrols” in which anyone who looked Hispanic was stopped and detained pending an immigration status check, and those believed to be undocumented were arrested and incarcerated.  Enjoined by a federal court to stop these practices, he refused to comply for at least a year and a half, and publicly boasted about it.

Arpaio was recently found guilty of a criminal contempt of the federal court’s injunction, subjecting him to up to six months’ imprisonment and fines.  That is the crime for which the President has pardoned him, stating publicly that Arpaio “kept Arizona safe” and that he was “convicted for doing his job.”

Prof. Feldman argues that this was a precipitous abuse of the President’s pardon power that could support an article of impeachment.  Prof. Redish goes further, arguing that the pardon of a criminal contempt of a federal-court injunction restraining constitutional violations by a public official should be considered beyond the pardon power the Constitution grants, essentially because it violates the separation of powers by invading the inherent power of the federal courts to enforce their own orders and the Constitution itself. 

Without discounting the horror that many have experienced at what the President did and why he says he did it, and leaving aside the political fallout that may result, I’d like to examine Prof. Redish’s creative and thoughtful argument as a problem in Remedies, and consider what recourse may now be left.   I’ll do just that after the jump:

USF Building Renamed Because of Anti-Asian Racism of its Namesake

In what may be a first, the University of San Francisco has renamed a residence hall because of the anti-Asian views of its namesake. Last week USF removed the name of James Phelan, a former mayor of San Francisco, U.S. Senator, and USF alumnus.  Phelan was among the leaders of the Japanese exclusion movement that swept California after 1905, and famously ran for reelection to the Senate in 1920 under the slogan, "Keep California White." That has not happened: the matriculating class this year at Phelan’s alma mater is 27.9% white. USF President Paul Fitzgerald, S.J. expressed no desire to scrub Phelan from USF’s history, and sees a continuing relevance in his story: “Phelan used xenophobia to gain political office . . . It’s important that our community recognizes that the temptation to run campaigns built on racism and fear of immigration, which was typical of Phelan’s era, continues to exist around the world today.”

Heinrich Krieger on the Race Laws of the United States

Further to my project of talking about James Whitman's terrific book and the Nazi lawyers' image of the Southern United States, here is Heinrich Krieger's book on the Race Laws of the United States.  To make the files manageable, I have broken this into four parts.   Here is the front matter through page 101. Here are Krieger pages 102-99.  Here are Krieger pages 200-307.  Here are Krieger pages 308 through the back matter.

The fourth section has the bibliography, which I find most interesting because so much of it is work that argues against slavery (or Jim Crow). For instance, this note in the Columbia Law Review, which Krieger cites, argues for a limitation of race discrimination. Interestingly, it also has a metaphor I had not heard before -- that of the vapors of the fourteenth amendment (a sort of penumbra for smell)!

The Value Of The Pence Protest

I know there is an active debate among progressives about whether the Hamilton audience and cast response to Mike Pence was appropriate or strategically counterproductive.  My own take is that it is important to recognize Hamilton as a piece of explicitly political art, not an anodyne feel-good musical about a founding father.  In both its content and its casting, it sends a political message that is in direct opposition to the views of the new administration.  I have long felt uncomfortable about the appropriation of Martin Luther King - his words and his symbolism - by conservative politicians whose views are directly opposed to King's views at the time, and values he always stood for.  This is a real danger - and in the present context is an actual form of the "normalization" people rightly fear.  The response to Pence's visit to Hamilton was an utterly appropriate way to flag the deep inconsistency of Pence simultaneously embracing Hamilton and believing that immigrants are dangerous, that African-Americans are dangerous and that gay people have an illness that should be treated by conversion.  And that's just a start.  

You don't get to like Hamilton, and suggest that you're on the same page as this piece of hot Americana, and at the same time burn down the lives of the millions of people who animate the values of Hamilton.  Hamilton has a message and it isn't "Make America Great Again." 

University, Court, and Slave

I'm delighted to say that University, Court, and Slave, which has been in the works for years and years, is now available.  If you're willing to read it on kindle, it's actually reasonably priced. Amazon has it for under $15.  And OUP is offering the book at a 30% discount (so for about $28 plus shipping) -- if you use the code on this flyer. 

I want to provide an overview now and I'll be talking about various pieces in future posts.  The book is about proslavery thought in the South from Nat Turner's rebellion in 1831 to the opening of Civil War.  It opens with the Nat Turner rebellion -- but my primary focus in the first chapter is on a William and Mary professor, Thomas Dew, who wrote an important and widely read proslavery pamphlet in the wake of the rebellion.  My primary focus in the first part of the book is proslavery thought in southern universities.  I follow the evolution of ideas from Dew's pamphlet in 1831 down to secession, at schools around the south from UVA, Washington College, VMI, Hampden-Sydney, and Randolph Macon in Virginia, down to UGA, Alabama, and Ole Miss -- with cameo appearances from a number of other southern schools.  I also discuss the antislavery thought that appears in schools, especially at UVA and Washington College.  I have a couple of faculty who're particularly important -- in addition to Thomas Dew, my major subjects include Henry Ruffner of Washington College (an anti-slavery advocate), Albert Taylor Bledsoe, a professor at UVA, and James Holcombe, a law professor at UVa.  The proslavery faculty increasingly focus on the role of hierarchy and slavery in history, and the economic importance of slavery.

The second part shifts to the ideas of proslavery thought in more public settings -- like Congress.  I focus in particular on the debates around the Fugitive Slave Act of 1850. (The anti-slavery response to the Act has been well-covered, but I'm more interested in how proslavery ideas, history, political theory, and economics, were mobilized to support the Act.)  The middle part also focuses on how the anti-slavery writers understood and responded to the historical and empirical arguments about slavery.

The final part turns to proslavery ideas and actions in the judiciary and among lawyers.  While I suspect that the first part will get the most attention, this is my favorite part of the book because it traces how ideas were put to use by actors at the center of southern power.  Part three looks at several key judges -- Thomas Ruffin of North Carolina and Joseph Lumpkin of Georgia -- as well as some less-well-known judges and lawyers, to see how they used proslavery arguments as part of their decisions on issues from criminal law to torts, to emancipation and trusts.  I also discuss judges like John Archibald Campbell, who wrote several articles on the legal history of slavery, John Catron, who issued an anti-slavery decision when he was a judge in Tennessee (shocking, I know), and Ebenezer Starnes who wrote an epistolary novel about a slave-owner who brought a slave to England.  The slave couldn't wait to get back to slavery in Georgia.  It was a terrible piece of literature, but is illuminating of Starnes' world-view.  (I discuss a number of the sources here.)

My favorite chapter centers around Thomas Cobb, a lawyer from Athens, Georgia, who wrote the most comprehensive proslavery treatise of the pre-Civil War era.  He synthesized decades of work on history, "science," economics, and law to create a zealously proslavery argument.  Cobb was not some closeted academic; he was an activist scholar.  Following Lincoln's election, he traveled to the Georgia capital to make a speech in favor of secession -- and then he took to the battlefield to defend the Confederacy.  Cobb died at Fredericksburg in December 1862.  The upshot of the final section is to illustrate how ideas of slavery, property, and political theory appeared in legal arguments -- from treatises to opinions to legislative debates -- and how those arguments help illuminate the minds of southerners as they moved towards secession.

I hope this will intervene in a series of debates.  The first is growing literature on slavery and universities.  There's been some fabulous work on this -- some of it goes back decades, such as Drew Faust's A Sacred Circle: The Dilemma of the Intellectual in the Old South -- but  a lot of it is recent, such as Craig Wilder's Ebony and Ivy.  Wilder's focus is on northern schools, where proslavery ideas--particularly "science"--and funding from slavery are even more surprising than in southern schools.  And then there's Michael O'Brien's expansive Conjectures of Order, which is more intellectual history that sweeps across the old south, though it deals with university faculty.  Building on that outstanding work, I have been able to delve the proslavery political theory, history, and legal ideas of southern faculty more deeply than have other scholars.  I hope that this will help show the detail of those ideas and how they shift over time -- often, I think, in response to anti-slavery advocacy -- and to show how much the academy was linked to ideas in circulation elsewhere in the south.  There were complex and important -- as well as extremely disturbing -- ideas on those campuses.

Second, I hope this will help expand our sense of the sophistication of pre-Civil War jurisprudence.  Where so many people treat American jurisprudence as though it began in 1870, the judges and lawyers here reveal that there were extensive historical and empirical arguments, as well as political theory, decades before that.  And it may very well be that the post-war historical and empirical jurisprudence owes its origins to those hotly contested debates over slavery.  Third, I hope this will add detail to how ideas circulate between popular culture and legal thought.  The proslavery ideas built up over time in terms of depth and sophistication in and out of the judiciary.  Judges drew on common tropes and added to them.  This reflects the close connections between judges and their culture.

Finally, I hope this causes us to realize how close arguments about property rights lie to the center of debates over secession.

You can read some of it on books.google now.  And I hope if this interests you that you'll recommend it to your school's library.  I look forward to talking about more specifics -- such as the content and reach of Thomas Dew's thoughts, proslavery ideas in graduation addresses, the increasing belief that slavery was consistent with natural law in the 1850s, the role of Frederick A.P. Barnard in slavery at the University of Alabama and Ole Miss, Thomas Cobb's proslavery legal treatise and role in secession, lesser-known jurists and their prolsavery writings, and finally property and constitutional thought in secession debates.

The Talk

Many commentators have lamented the fact that the sole African-American on the Court for a two generations has been a Justice with a perspective on race that is atypical of the average of African-American citizen.  Often that's understood in terms of outcomes: Clarence Thomas is way more conservative on almost every issue than most African-Americans.  But what is less obvious is that we are missing content.  Today, in Utah v. Strieff, Justice Sotomayor's dissent shows us what we've been missing:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification.  As the Justice Department notes, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.  But it is no secret that people of color are disproportionate victims of this type of scrutiny.

For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.  They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. (Some cites omitted.)

This is powerful stuff.  Steven will presumably be underwhelmed by Justice Sotomayor's citation to On the Run, however.

Slavery's Capitalism

If you're been watching Roots, then you've seen a lot about slavery and the market economy the last two nights.  This August the University of Pennsylvania Press will publish an important volume edited by Sven Beckert and Seth Rockman that deals with recent work on slavery and capitalism.  It's called Slavery's Captialism: A New History of American Economic Development.   Close readers of the faculty lounge may recall that I blogged about the conference with the same title, "Slavery's Capitalism," where a bunch of these papers originated.  This is a vibrant area of discussion among historians -- and legal historians.  For the market (as I refer to it rather than capitalism) had a lot to do with the growth of slavery.  (The market also had a lot to do with its decline; one of my favorite quotes along these lines comes from Emerson who said of trade that it pushed down feudalism and would do the same to slavery -- but that is also came along with a lot of hardship.)  You may have seen Jenny Schuessler's piece on historians' new takes on capitalism in the New York Times, which deals in part with the discussion of slavery.  And here's an accessible essay Sven and Seth published on this over at Bloomberg.

It's astonishing to me how long many historians clung to the idea that the south was in some ways anti-market.  I think a lot of it has to do with the over-hang of ideas that plantations were like families -- an absurd idea, to be sure, but one that was popular for decades in the "moonlight and magnolia" school.  But there was another reason -- rooted in antislavery , too.  The only type of criticism allowed of slavery in the south for much of the ante-bellum period was that slavery was bad for white people.  And so slavery was depicted by antislavery advocates as economically disastrous for the southern economy.  That interpretation fit well -- perversely -- with the proslavery interpretation that slavery was about a loving relationship between the owners and their enslaved human property.  Both sides had an incentive to talk about how bad slavery was for the southern economy.  And I think that interpretation has proven very sticky.  While there have been some powerful interpretations of slavery as economically beneficial for the slave-owning class over the years, it's only been in the recent past that we've been fully embracing just how much slavery contributed to the economy.  And this book looks at many places to see how the system worked to extract labor at the lowest cost and how much the rest of our country benefited from this.

I'm honored to have a chapter in Slavery's Capitalism; my chapter deals with the southern legal system's market-orientation.  I discuss some cases involving slaves, running from the limitation of tort liability of slave-owners for torts committed by their slaves to the use of trusts to manage enslaved people effectively, as well as the ideas of judges who linked slavery, economic development, and law.  A lot of this will sound familiar to legal historians -- it's in large part an expansion of themes in Morton Horwitz' Transformation of American Law to the context of the slave-owning south.  Those themes, which appear in judicial opinions and in speeches and books by judges and lawyers, reveal the centrality of slavery to southern law and vice versa.

The table of contents is as follows:

Playing With Cards: Bringing It All Together

When I write about issues of discrimination and identity, I try when feasible to use a mix of racism, sexism, and anti-Semitism examples to illustrate my point. So, for example, in Playing with Cards I discuss the bad faith "card" retort to discrimination claims by looking at how Gamergaters responded to Anita Sarkeesian's contentions of sexism in the video game community (to talk of sexism is an "I-win button") and how Caryl Churchill dismissed objections that her play Seven Jewish Children was anti-Semitic ("It's the usual tactic."). It's the same move, just applied to different people.

And sometimes, the world reciprocates. Breitbart News has been engulfed in scandal (well, a new scandal anyway) recently after it published David Horowitz calling Bill Kristol a "renegade Jew" (stemming from the latter's rejection of Donald Trump). The fallout has led to alarms being raised about the rise of anti-Jewish sentiment in the conservative movement (not that this should really surprise us given the basis of Trump's appeal-- anti-Muslim sentiments and anti-Semitic sentiments are in fact excellent predictors of one another), including by one-time conservative wunderkind Ben Shapiro. And to Sharpiro's concerns, well, Breitbart published this yesterday: