Law and Race Commons^™

Two "Wrongs" Do/Can Make A Right: Remembering Mathematics, Physics, & Various Legal Analogies (Two Negatives Make A Positive; Are Remedies Wrong?) The Law Has Made Him Equal, But Man Has Not, John C. Duncan Jr

Journal Publications

This article demonstrates the incomplete logic and inconsistent legal reasoning used in the argument against affirmative action. The phrase "two wrongs don't make a right" is often heard in addressing various attempts to equalize, to balance, and to correct the acknowledged wrongs of slavery and segregation and their derivative effects. Yet, "two wrongs do/can make a right" has a positive connotation. This article reviews the history of societal and judicial wrongs against Blacks, as well as the evolution of the narrowing in legal reasoning concerning discrimination against minorities, including Blacks. Next, the legal reasoning behind legacy programs will be reviewed …

Reparations Talk In College, Alfred L. Brophy

Michigan Journal of Race and Law

Review of Uncivil Wars: The Controversy Over Reparations for Slavery by David Horowitz

Introduction, Hanoch Dagan, Keith N. Hylton, Anthony J. Sebok

Faculty Scholarship

On April 9th and 10th, 2004, Boston University School of Law sponsored a symposium titled The Jurisprudence of Slavery Reparations. As the principal conference organizers, we are pleased and a bit awestruck to see the symposium contributions published in this issue of the Boston University Law Review. The papers published here - in the first symposium of its kind in a major law review - should serve as an immensely valuable reference on the jurisprudence of reparations

The Plight Of "Nappy-Headed" Indians: The Role Of Tribal Sovereignty In The Systematic Discrimination Against Black Freedmen By The Federal Government And Native American Tribes, Terrion L. Williamson

Michigan Journal of Race and Law

This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations …

Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske

Articles

In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the …

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.

Reparations As Redistribution, Kyle D. Logue

Articles

The most controversial, and most intriguing, remedy sought by proponents of slavery reparations involves massive redistribution of wealth from whites to blacks within the United States. This is not to say that reparations proponents have focused only on racial redistribution. Some have called for an official apology from the U.S. government. Others seek the creation of a foundation or institute, funded by U.S. tax dollars, to be devoted to furthering the interests of African Americans, including the funding of K- 12 educational programs for black children and the funding of general civil rights advocacy to counteract the lingering effects 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 …

Pennsylvania Legislation Relating To Slavery

Adams County History

The following acts have been taken, complete or in part, from the published volumes of The Statutes At Large of Pennsylvania and Laws of Pennsylvania. These extracts are not all-inclusive, but do cover the years 1725/6-1847, from the province's first general statement of the legal standing of blacks, full-blooded and mixed, and the treatment to be afforded them, up to the state's rewritten and strengthened prohibition of the kidnapping of free blacks and the seizing of fugitive slaves. Included are not only acts showing the status and the protection of slaves, whether residents or sojourners, but also those requiring resident …

Obligations Impaired: Justice Jonathan Jasper Wright And The Failure Of Reconstruction In South Carolina, Caleb A. Jaffe

Michigan Journal of Race and Law

Part I of this article, on the historiography of South Carolina Reconstruction, explains the difficulty scholars have had in uncovering the documentary history of Reconstruction, and outlines the development of historical interpretations of Reconstruction from the Nineteenth century Redeemer-era accounts to the revisionists of the 1970's. Part II provides brief biographies of both Justice Wright and William James Whipper. Parts III and IV track the different approaches of Whipper and Wright on two vital issues of their day: (1) whether to repudiate all private debts relating to slavery; and (2) how to construct a homestead law to protect cash-poor landowners. …

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 …

Slavery And The Roots Of Sexual Harassment, Adrienne D. Davis

Scholarship@WashULaw

In recent years, feminist scholars and activists have demonstrated the ways that U.S. slavery functioned as a system of gender supremacy. It entailed the dominance of men over women as well as whites over blacks. Adding the gender lens has shed immense light on the ways that sex, law, and power operated in the racially supremacist enslaving South. In recent years, this literature has emphasized the ways that slavery's sexual and racial subordination converged around the bodies of enslaved black women. One project within this literature characterizes slavery as a "sexual political economy" to make explicit the connections between its …

Race And The Development Of Law In America: Introduction To The Symposium, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Sexualized Racism/Gendered Violence: Outraging The Body Politic In The Reconstruction South, Lisa Cardyn

Michigan Law Review

From its establishment in the months following the Civil War by a motley assortment of disgruntled former rebels, the first Ku Klux Klan, like its many vigilante counterparts, employed terror to realize its invidious social and political aspirations. This terror assumed disparate shapes - from the storied nightriding of disguised bands on horseback, to cryptic threats, horrific assaults, and, not infrequently, murder. While students of Reconstruction have considered many facets of klan violence, none to date has focused exclusively on sexual violence in its historical specificity. Yet, as the work of Catherine Clinton, Laura Edwards, and Martha Hodes persuasively demonstrates, …

What's Wrong With Our Talk About Race? On History, Particularity, And Affirmative Action, James Boyd White

Michigan Law Review

One of the striking and original achievements of the Michigan Law Review in its first century was the publication in 1989 of a Symposium entitled Legal Storytelling. Organized by the remarkable editor-in-chief, Kevin Kennedy - who tragically died not long after his graduation - the Symposium not only brought an important topic to the forefront of legal thinking, it did so in an extraordinarily interesting way. For this was not a mere collection of papers; the authors met in small editorial groups to discuss their work in detail, and as a result the whole project has a remarkable coherence and …

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske

Articles

In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …

Tricky Magic: Blacks As Immigrants And The Paradox Of Foreignness, Lolita K. Buckner Inniss

Publications

Since the beginning of the nation, white Americans have suffered from a deep inner uncertainty as to who they really are. One of the ways that has been used to simplify the answer has been to seize upon the presence of black Americans and use them as a marker, a symbol of limits, a metaphor for the "outsider." Many whites could look at the social position of blacks and feel that color formed an easy and reliable gauge for determining to what extent one was or was not American. Perhaps that is why one of the first epithets that many …

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …

The Devil And The One Drop Rule: Racial Categories, African Americans, And The U.S. Census, Christine B. Hickman

Michigan Law Review

For generations, the boundaries of the African-American race have been formed by a rule, informally known as the "one drop rule," which, in its colloquial definition, provides that one drop of Black blood makes a person Black. In more formal, sociological circles, the rule is known as a form of "hypodescent" and its meaning remains basically the same: anyone with a known Black ancestor is considered Black. Over the generations, this rule has not only shaped countless lives, it has created the African-American race as we know it today, and it has defined not just the history of this race …

A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of The Nature Of Slave Property, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents a new understanding of the nature of slave property. Slave property was divided and fragmented into many different interests including those with application to real property such life estates, remainders, shifting and spring interests, and leasehold interests. With regard to these interests, the article overlays the first-year, law-school property course onto slaves as property. Property interests in slaves were also divided by credit mechanisms including mortgages and secured credit transactions. Warranties are another example of divided property interests in slaves.

The fragmented, Hohfeldian nature of slave property distributed the stake that southerners had in the …

“Like Master, Like Man”: Constructing Whiteness In The Commercial Law Of Slavery, 1800-1861, Ariela J. Gross

Cardozo Law Review

In 1836, Leonard Wideman bought a slave named Charles from Jonathan Johnson, paying in part with a $100 note. Not long after, Johnson sued Wideman in the Circuit Court of Abbeville, South Carolina for failing to pay his note. In defense, Wideman argued that he should not have to pay Charles's price because Johnson had fraudulently represented Charles to be sober, honest, and humble, when, in fact, he was insubordinate, vicious, a drunkard, and a runaway. The trial turned not only on Charles's character, but also on the character of his masters: Johnson, Wideman, and others who had previously owned …

Roman Slave Law: An Anglo-American Perspective, Alan Watson

Cardozo Law Review

The most influential secular system of law in the West has been Roman private law. This is true even of its slave law, which was received not only in states of Europe where slavery survived, but also in European colonies in America, whether those of Spain, Portugal, France, or the Dutch West India Company. Though slavery had died out in France and the Dutch Republic, when slavery appeared in the colonies, recourse was had above all to Roman law.

The First Slave (And Why He Matters), Jonathan A. Bush

Cardozo Law Review

This Article has two purposes. The narrower, straight historical purpose is to explore in further detail the status of blacks in the earliest years of Britain's colonies in the New World. The second, more legal aim is to explore what is, for many of us, still the hardest question in American legal history: namely, to understand the route by which slavery came to be legal in the early seventeenth century, in a culture that had long rejected unfree status and that seemed to retain that view.

“Under The Present Mode Of Trial, Improper Verdicts Are Very Often Given”: Criminal Procedure In The Trials Of Slaves In Antebellum Louisiana, Judith Kelleher Schafer

Cardozo Law Review

When Louisiana became an American possession in 1803, a primary concern of the new territorial government and its inhabitants was what kind of law would be most appropriate to provide stability and maintain order in a heterogeneous population composed of free persons of French, Spanish, and American ancestry, those of African origin, free and slave, American Indians, and various combinations of these cultures and races.

Estranged Fruit: The Reconstruction Amendments, Moral Slavery, And The Rearticulation Of Lesbian And Gay Identity, E. Nathaniel Gates

Cardozo Law Review

David A.J. Richards has composed a thoughtful and suggestive narrative that centers on the excavation of the antislavery constitutionalism forged by a small, but arguably influential, group of antebellum abolitionist feminists. Central to his narrative, and to the constitutional theses of the abolitionist feminists, is the concept of "moral slavery" which, on Richards' account, constitutes a crucial element of the hermeneutic background essential to a proper interpretation of the Reconstruction Amendments. According to Professor Richards, an understanding of the figure of the abolitionist feminist as a "multiple exile and outcast" who in opposing "moral slavery" played a vital role in …

New Histories Of The Private Law Of Slavery, Mark Tushnet

Cardozo Law Review

The new scholarship on the private law of slavery, exemplified by the articles in this Symposium, differs from earlier scholarship in its focus on the law in lower courts, as in Ariela Gross's article, and on the law in action, as in Thomas Russell's. The prior generation of scholarship, including my own, focused almost exclusively on appellate decisions and commentary by pro and antislavery lawyers. The new scholarship resembles its predecessor, however, in using legal materials to explore aspects of the ideology of slavery. For example, Gross develops a highly nuanced account of the image of the good master from …

Gender In The Law Of Slavery In The Antebellum United States, Andrew T. Fede

Cardozo Law Review

In her thought-provoking paper Finding Sojourner's Truth: Race, Gender, and the Institution of Property, Cheryl I. Harris explores the connections between slavery, race, and gender in the law of the antebellum United States. Harris acknowledges that slaves alone were defined as property at law, and, therefore,*the legal status of slaves differed from free white women and free black women. She also acknowledges that "white women" were allowed property rights on "male-defined terms" but asserts, nevertheless, that free women could be considered as a form of property.

Property, Parenthood, And Peonage: Reflections On The Return To Status Quo Antebellum, Margaret A. Burnham

Cardozo Law Review

Cheryl Harris demonstrates how intertwining racial and gender boundaries, whose shadows are long, longstanding, and ominous, were initially constructed around the legal principle of human chattel as personal property. She insightfully argues that slavery inextricably linked the concepts of race and property in the American legal imagination; that property originates from rules that are "racially coded" and determined. Cheryl Harris's contribution to this Symposium is a continuation of her project of illuminating how law ratifies and implements a racialized conception of property. This comment considers the application of Professor Harris's argument, that property, in the context of race-based slavery, is …

Comment On Hans Baade’S The Gens De Couleur Of Louisiana: Comparative Slave Law In Microcosm, Morris S. Arnold

Cardozo Law Review

Hans Baade invented colonial Louisiana legal history. Before he started doing research in the eighteenth-century records in New Orleans and elsewhere, virtually no serious historical work involving the judicial and notarial archives of colonial Louisiana had ever been done. Professor Baade also undertook years ago to trace the various French and Spanish statutory enactments that bore on Louisiana legal history, and this proved to be a virtually impenetrable mare's nest. Before Professor Baade began his work, most of what had been written about Louisiana's colonial legal past was both amateurish and antiquated. It should therefore come as no surprise that …

The Gens De Couleur Of Louisiana: Comparative Slave Law In Microcosm, Hans W. Baade

Cardozo Law Review

That slavery can be nothing but bad is a universally accepted proposition; it has therefore been contrary to international law for quite some time. Yet there remains the following debate: were there systems of slavery in the past that were "better" than others-better, that is, for the slaves? It is worth recalling that according to the only surviving account of the history of Roman law written in antiquity, Gnaeus Flavius, the son of a freedman, utilized his position as the High Priest's scribe to make public the original register of the forms of action which had hitherto been kept secret. …