Law and Race Commons^™

A Different Type Of Property: White Women And The Human Property They Kept, Michele Goodwin

Michigan Law Review

A Review of Incidents in the Life of a Slave Girl. by Harriet A. Jacobs, and They Were Her Property: White Women as Slave Owners in the American South. by Stephanie E. Jones-Rogers.

U.S. Race Relations And Foreign Policy, Susan D. Page

Michigan Journal of Race and Law

It is easy for Americans to think that the world’s most egregious human rights abuses happen in other countries. In reality, our history is plagued by injustices, and our present reality is still stained by racism and inequality. While the Michigan Journal of International Law usually publishes only pieces with a global focus, we felt it prudent in these critically important times not to shy away from the problems facing our own country. We must understand our own history before we can strive to form a better union, whether the union be the United States or the United Nations. Ambassador …

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined …

International Law And Contemporary Slavery: The Long View, Rebecca J. Scott

Michigan Journal of International Law

The three essays in this special issue come together to confirm the value of exploring varying domestic expressions of and adaptations to international legal ideals. In each polity, lawmakers have viewed the terms “slavery” and “slave labor” in part through a domestic historical lens, and have drafted (or failed to draft) legislation accordingly. The United States inherited core concepts dating back to the moment of abolition of chattel slavery, and thus initially built its prohibitions of modern slavery on nineteenth-century rights guarantees and anti-peonage statutes, later reinforced by modern concepts of human trafficking. Having just emerged from a long dictatorship, …

An Insurmountable Obstacle: Denying Deference To The Bia’S Social Visibility Requirement, Kathleen Kersh

Michigan Journal of Race and Law

In the last fifteen years, the Board of Immigration Appeals has imposed a requirement that persons seeking asylum based on membership in a particular social group must establish that the social group is “socially visible” throughout society. This Comment argues that the social visibility requirement should be denied administrative deference on several grounds. The requirement should be denied Chevron deference because Congress’s intent behind the Refugee Act of 1980 is clear and unambiguous and, alternatively, the requirement is an impermissible interpretation of the statute. The requirement is also arbitrary and capricious under the Administrative Procedures Act. This Comment argues that …

Isolated Confinement In Michigan: Mapping The Circles Of Hell, Elizabeth Alexander, Patricia Streeter

Michigan Journal of Race and Law

For the past twelve months, there has been a burgeoning campaign to abolish, or greatly reduce, the use of segregated confinement in prisons. Advocates for the campaign call such classifications "solitary confinement" despite the fact that in some states, like New York, prisoners in these cells are often double-celled. The Michigan Department of Corrections, as well as other prison systems, uses labels such as "segregation," "special management," "special housing," and "observation" for these classifications. Prisoners ordinarily use traditional terms, such as "the hole." In this Essay we will refer to such restrictive classifications as "segregation" or "segregated confinement." Our perspective …

The Federal Bureau Of Prisons: Willfully Ignorant Or Maliciously Unlawful?, Deborah Golden

Michigan Journal of Race and Law

The Federal Bureau of Prisons ("BOP") and the larger U.S. government either purposely ignore the plight of men with serious mental illness in the federal prison system or maliciously act in violation of the law. I have no way of knowing which it is. In a complex system comprising many individual actors, motivations are most likely complex and contradictory. Either way, uncontrovertibly, the BOP and the U.S. government, against overwhelming evidence to the contrary, continuously assert that there are no men with serious mental illnesses housed in the federal supermax prison, the Administrative Maximum facility in Florence, Colorado, also known …

Prison Segregation: Symposium Introduction And Preliminary Data On Racial Disparities, Margo Schlanger

Articles

For this Introduction, I undertake to look a bit more broadly at recent data. The best sources of demographic information about prisoners are the various surveys and censuses conducted by the U.S. Department of Justice Bureau of Justice Statistics (BJS). While no BJS publication directly addresses the issue, and no BJS dataset allows its full analysis, it is possible to glean something from the most recent BJS prison census, the 2005 Census of State and Federal Adult Correctional Facilities.

Under Color Of Law: Siliadin V. France And The Dynamics Of Enslavement In Historical Perspective, Rebecca J. Scott

Book Chapters

When is it appropriate to apply the term ‘slavery’—a concept that appears to rest on a property right—to patterns of exploitation in contemporary society, when no state extends formal recognition to the possibility of the ownership of property in a human being? Historians, who generally position themselves as enemies of anachronism, may be particularly resistant to the use of an ancient term to describe a twenty-first century reality. And jurists have often been understandably reluctant to employ a word whose historical meaning was so closely tied to a specific property relationship that has long since been abolished in Europe and …

Paper Thin: Freedom And Re-Enslavement In The Diaspora Of The Haitian Revolution, Rebecca J. Scott

Articles

In the summer of 1809 a flotilla of boats arrived in New Orleans carrying more than 9,000 Saint-Domingue refugees recently expelled from the Spanish colony of Cuba. These migrants nearly doubled the population of New Orleans, renewing its Francophone character and populating the neighborhoods of the Vieux Carre and Faubourg Marigny. At the heart of the story of their disembarkation, however, is a legal puzzle. Historians generally tell us that the arriving refugees numbered 2,731 whites, 3,102 free people of color, and 3,226 slaves. But slavery had been abolished in Saint-Domingue by decree in 1793, and abolition had been ratified …

Slavery And The Law In Atlantic Perspective: Jurisdiction, Jurisprudence, And Justice, Rebecca J. Scott

Articles

The four articles in this special issue experiment with an innovative set of questions and a variety of methods in order to push the analysis of slavery and the law into new territory. Their scope is broadly Atlantic, encompassing Suriname and Saint-Domingue/Haiti, New York and New Orleans, port cities and coffee plantations. Each essay deals with named individuals in complex circumstances, conveying their predicaments as fine-grained microhistories rather than as shocking anecdotes. Each author, moreover, demonstrates that the moments when law engaged slavery not only reflected but also influenced larger dynamics of sovereignty and jurisprudence.

Rawls And Reparations, Martin D. Carcieri

Michigan Journal of Race and Law

In the past two years, four related events have sharpened debates on race in the U.S.: President Obama's election, the nomination of Judge Sonia Sotomayor to the Supreme Court, that Court's ruling in Ricci v. DeStefano, and the arrest of Obama's friend, Harvard professor Henry Gates. The President has spoken of a "teaching moment" arising from these events. Moreover, his writings, speeches and lawmaking efforts illustrate the contractual nature of Obama's thinking. The President (and all concerned citizens) should thus find useful an analysis of racial policy and justice in light of the work of John Rauls. Rawls may …

She...Refuses To Deliver Up Herself As The Slave Of Your Petitioner': Émigrés, Enslavement, And The 1808 Louisiana Digest Of The Civil Laws (Symposium On The Bicentennial Of The Digest Of 1808--Collected Papers), Rebecca J. Scott

Articles

Philosophically and juridically, the construct of a slave-a "person with a price"--contains multiple ambiguities. Placing the category of slave among the distinctions of persons "established by law," the 1808 Digest of the Civil Laws Now in Force in the Termtoiy of Orleans recognized that "slave" is not a natural category, inhering in human beings. It is an agreement among other human beings to treat one of their fellows as property. But the Digest did not specify how such a property right came into existence in a given instance. The definition of a slave was simply ostensive, pointing toward rather than …

Reinventar La Esclavitud, Garantizar La Libertad: De Saint-Domingue A Santiago A Nueva Orleáns, 1803-1809, Rebecca J. Scott

Articles

From French and Creole to Spanish, the domain of the Napoleonic Empire to the king of Spain, crossing the strait separating the French colony of Saint-Domingue and the Spanish colony of Cuba entailed a change of language and government. Some 18,000 people made that transition between the spring and summer of 1803 during the Revolutionary War in Saint-Dominque. Six years later, many crossed the Gulf of Mexico from Cuba to New Orleans and the recently acquired Louisiana Territory under the authority of a territorial governor and the United States Congress. What would these crossings lead to for those who had …

It Could Happen To "You": Pay-To-Stay Jail Upgrades, Kim Shayo Buchanan

Michigan Law Review First Impressions

In the jails of Los Angeles County, about 21,000 detainees are held in filthy cells so overcrowded—four men in a cell built for two, six to a four-man cell—that, as federal judge Dean D. Pregerson observed in 2006, inmates must stay in their bunks at all times because there is not enough room for them to stand. These men—ninety percent of whom are pretrial detainees— are held in these conditions twenty-four hours per day, seven days per week, and are typically allowed only a single three-hour exercise period weekly. Other inmates are held for days in a county “reception center” …

A Cuban Connection: Edwin F. Atkins, Charles Francis Adams, Jr., And The Former Slaves Of Soledad Plantation, Rebecca J. Scott

Articles

Edwin F. Atkins and Charles Francis Adams, Jr., stand out on this stage not as major players but as a particularly intriguing Boston connection. Among the truly major players, planters like Juli?n Zulueta and the Count of Casa More owned hundreds of slaves and shaped Spanish policy. On the Cuban nationalist side, few could equal the impact of Antonio Maceo, the mulato insurgent general who insisted on full emancipation at the end of the 1868-1878 war, or the thousands of rebels who fought under the orders of rebel generals Maceo and Maximo Gomez. As the master of some ninety-five patrocinados …

Public Rights And Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Articles

Tracing the history of a family across three generations, from enslavement in eighteenth-century West Africa through emancipation during the Haitian Revolution and subsequent resettlement in New Orleans, then France, then Belgium, can shed light on phenomena that are Atlantic in scope. A business letter written in 1899 by the cigar merchant Edouard Tinchant to General Máximo Gómez in Cuba frames an inquiry that opens out onto a family itinerary that spanned the long nineteenth century. Rosalie Vincent’s achievement of freedom in the shadow of slavery in Saint-Domingue in 1793–1803 can be seen as linked to her grandson Edouard Tinchant’s participation …

Why Sudan? Ambiguous Identities Forge Persistent Conflict, Laura Nyantung Beny

Articles

The following essay is excerpted from the prospectus for Perspectives on Genocide and Genocidal Violence in the Sudan, edited by Law School Assistant Professor Laura N. Beny, Sondra Hale of UCLA, and Lako Tongun of Claremont Colleges, California. The book is under advance contract for publication by the University of Michigan Press. Its 14 chapters, written by prominent historians, anthropologists, social scientists, political leaders, and others, “tell overlapping stories about the social constructions of race, gender, culture, and religious and political loyalties, each of which underlies the longstanding conflict” in Sudan, according to Beny, whose essay in the book is …

The Provincial Archive As A Place Of Memory: The Role Of Former Slaves In The Cuban War Of Independence (1895-98), Rebecca Scott

Book Chapters

Prof. Scott focuses on the study of the role of former slaves in the Cuban War of Independence, in light of the avoidance of the theme of race within this war in Cuban historiography. She discusses reasons for the silence on race issues, and for the historic construction of the "myth" of racial equality in this era.

Beyond State Sovereignty: The Protection Of Cultural Heritage As A Shared Interest Of Humanity, Francesco Francioni

Michigan Journal of International Law

In this paper the author will try to explore the topic from a different perspective: i.e. the emergence of cultural heritage as part of the shared interest of humanity, with the consequent need for international law to safeguard it in its material and living manifestations, including the cultural communities that create, perform and maintain it. Culture in itself is not extraneous to the formation of the modern nation State. Especially in the history of nineteenth century Europe, culture as language, religion, literary and artistic traditions provided the cement and the legitimizing element to support the claim to independent statehood.

Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott

Articles

By seeing events in the past as part of a dynamically evolving system with a large, but not indefinite, number of degrees of freedom, we can turn our attention to the multiple possibilities for change, and to the ways in which societies that are initially similarly situated may go on to diverge very sharply. Thus it is, I will argue, with societies in the 19th century that faced the challenge of building citizenship on the ruins of slavery.

Foreword: Why Retry? Reviving Dormant Racial Justice Claims, Martha Minow

Michigan Law Review

Two familiar arguments oppose lawsuits and legislative efforts to address racial injustices from our national past, and a third tacit argument can be discerned. "Why open old wounds?": this question animates the first argument. The evidence is stale - this expresses the second argument. The third, less explicit objection reflects worries that exposing some gross and unremedied racial injustices from the past will reveal the scale of imperfections in the systems of justice and government and thereby undermine the legitimacy of those systems. To introduce the meticulous and passionate essays in this Colloquium, I elaborate and respond to each of …

American Racial Jusice On Trial - Again: African American Reparations, Human Rights, And The War On Terror, Eric K. Yamamoto, Susan K. Serrano, Michelle Natividad Rodriguez

Michigan Law Review

Much has been written recently on African American reparations and reparations movements worldwide, both in the popular press and scholarly publications. Indeed, the expanding volume of writing underscores the impact on the public psyche of movements for reparations for historic injustice. Some of that writing has highlighted the legal obstacles faced by proponents of reparations lawsuits, particularly a judicial system that focuses on individual (and not group-based) claims and tends to squeeze even major social controversies into the narrow litigative paradigm of a two-person auto collision (requiring proof of standing, duty, breach, causation, and direct injury). Other writings detail the …

Tres Vidas, Una Guerra Rafael Iznaga, Bárbara Pérez Y Gregoria Quesada Entre La Emancipación Y La Ciudadanía, Rebecca Scott

Book Chapters

In this article, Scott takes a microhistorian approach as she looks at the ways in which three Cubans of color (Rafael Iznaga, Bárbara Pérez and Gregoria Quesada), from the same rural neighborhood, sought to define and attain citizenship during and immediately after the Cuban War of Independence from 1895-1898. Juxtaposing oral and written sources, Scott shows how such evidence can be both complementary and contradictory, and how each source should be examined in light of the others.

Rafael Iznaga fought in the war as a soldier of the Liberation Army, and returned with prestige and status. While his life can …

Apartheid As A Crime Against Humanity: A Submission To The South African Truth And Reconciliation Commission, Ronald C. Slye

Michigan Journal of International Law

The question of whether apartheid is a crime against humanity might seem an odd one for many people living outside South Africa-and indeed for the vast majority of people living inside South Africa. With the recent demise of legalized apartheid in South Africa, one might ask if apartheid's status under international law has any contemporary relevance beyond a small group of legal academics. The status of apartheid under international law-in particular whether apartheid constitutes a crime against humanity-is a question that the South African Truth and Reconciliation Commission ("TRC") was obligated to address in its final report.

A Proposal To The Hanodaganyas To Decolonize Federal Indian Control Law, Robert B. Porter

University of Michigan Journal of Law Reform

In this Article, cast in the form of a letter to President William Jefferson Clinton, Professor Porter argues for the decolonization of federal Indian control law. After detailing the religious and colonialist roots of early Supreme Court decisions dealing with the Indian nations and giving an overview of the evolution of federal Indian policy, Professor Porter argues for the decolonization of federal Indian control law on several grounds: 1. the world community has rejected colonialism policies; 2. federal Indian control law denies basic human rights of self-determination; 3. colonization has partially succeeded in destroying the Indian nations; and 4. decolonization …

Race Discourse And Proposition 187, John Sw Park

Michigan Journal of Race and Law

Proposition 187 inspired a visceral public discourse. Proponents and opponents of the measure discussed several themes important to contemporary political theory, particularly themes related to sovereignty and civil rights. This Note shows how participants in that debate-including people of color-spoke of "rights" in a way that denied the possibility for undocumented aliens to have rights. When citizens spoke, they did so in a way that implicitly linked rights to citizenship; in other words, they assumed that without citizenship, persons were not entitled to rights or rights-based claims. Ironically, the debate about Proposition 187 pointed to the achievements of a "civil …

Safeguarding Due Process In A Hostile Environment: Foreign Lawyers In South Africa, David S. Abramowitz

Michigan Journal of International Law

Part I of this note briefly describes the effect of apartheid on human rights in South Africa. It then examines how liberal South African attorneys use procedural due process, as defined by the rule of law, to counter these effects. Part II discusses the methods used by foreign attorneys to support South African human rights lawyers. In particular, this section focuses on the activities of the International Commission of Jurists and the Lawyers' Committee for Civil Rights Under Law. The note concludes that infusing fair process into the South African legal order is the most significant contribution foreign lawyers can …

Justice At War: The Story Of The Japanese American Internment Cases, Michigan Law Review

Michigan Law Review

A Review of Justice at War: The Story of the Japanese American Internment Cases by Peter Irons