The law of slavery is still good law. In the twenty-first century, American judges and lawyers continue to cite case law developed in disputes involving enslaved people. These cases provide law for a wide variety of subject areas. Judges cite slavery to explicate the law of contracts, property, evidence, civil procedure, criminal procedure, statutory interpretation, torts, and many other fields. For the most part, judges cite these cases without acknowledging that the cases grew out of American slavery and without considering that a case’s slave origins might lessen its persuasive authority. Nor do they examine the dignitary harms that the citation of slavery may impose. In citing slavery, lawyers thus demonstrate a myopic historical perspective that creates legal harms and reveals the ethical limitations of their profession. This Article illustrates the benefits a broader historical perspective can bring to bear on contemporary doctrinal issues. At a time when American groups and institutions from businesses to universities are coming to grips with the legacy of slavery, the legal profession has an obligation to do the same.
* Justin Simard is a Visiting Assistant Professor at Willamette University College of Law and will be an Assistant Professor at Michigan State University College of Law beginning in 2020. Thanks to generous research support from the Baldy Center for Law and Social Policy, the American Bar Foundation, and Northwestern University. I am grateful for the useful feedback I have received on many drafts of this paper. Thanks especially to Greg Ablavsky, Julia Bernier, Anya Bernstein, Chris Beauchamp, Guyora Binder, Todd Brown, Smita Ghosh, Andrew Fede, Joanna Grisinger, Joe Gerken, Cassandra Good, Sally Barringer Gordon, David Hausman, Amanda Kleintop, Sophia Lee, Jonathan Manes, Errol Meidinger, Jeffrey Omari, Stephanie Phillips, Kumar Ramanathan, Caitlin Rosenthal, Willa Sachs, Chris Schmidt, Mary Rumsey, Matt Steilen, Karen Tani, and Adam Wolkoff. Also, thanks to the students in my “Law of Slavery” class, who helped me think through these issues.