Slave cases are still cited as good law across the U.S. This team aims to change that

This story starts — but certainly doesn't end — in 19th century Maryland, when John Townshend updated his will.

Townshend grew convinced at the end of his life that God would punish him if he did not free the enslaved people he owned and give them all of his property. But Townshend's relatives challenged his final wishes in court, arguing that his decision had been the result of a delusion.

That 1848 case was the first U.S. appearance of what became known as the "insane delusion rule," which remains grounds for contesting wills to this day. And Townshend v. Townshend itself has been cited in at least 70 other cases across the country — from New Hampshire to California — over the years, as recently as 2007.

It's one of thousands of cases involving enslaved people that lawyers and judges continue to cite as good precedent, more than a century after the 13th Amendment abolished slavery in the U.S.

Justin Simard, an assistant professor at Michigan State University's College of Law, estimates there are about 11,000 such cases out there — and about one million more that use them to back up their arguments.

"I've done some analysis just with a sample of cases and concluded that 18% of all published American cases are within two steps of a slave case, so they either cite the slave case or cite a case that cites a slave case," Simard tells NPR. "The influence is really, really extensive."

Simard has spent years documenting them, with the help of some two dozen law students.

The result is the Citing Slavery Project, a comprehensive online database (and map) of slave cases and the modern cases that cite them as precedent. They expect to add the last of their nearly 9,000 collected cases to the website this summer.

The project aims to push the legal profession to grapple with its links to slavery, an overdue reckoning that Simard hopes will start with lawyers and judges acknowledging their use of the troubling precedents.

He says 80% of the time judges don't mention that these cases involve slavery at all, either because they're unaware or uncomfortable.

"We're not saying don't cite them," he explains. "All I'm asking people to do is just don't cite them without acknowledgement, without thinking through whether it actually makes sense to cite them, which I think is a pretty reasonable thing to ask."

NPR has reached out to the American Bar Association and American Judges Association for comment.

As part of that effort, Simard successfully advocated for the Bluebook — the country's legal citation style guide — to add a rule requiring cases involving enslaved people to be labeled with a parenthetical, just as moot or overturned cases are.

Where enslaved people were parties in a case, the citation will read "(enslaved party)." Where they were the subject of a property or legal dispute, the footnote should include "(enslaved person at issue)."

Simard says the feature has been used some 70 times in secondary sources and by four different judges since the change took effect in the 2021 edition, which he sees as an exciting first step.

The project also has an education and outreach component, including a pilot program with a high school outside of Detroit.

"How do you fix this? It's not one simple thing, but I do think one thing we can do that ... certainly is helpful is to make the profession more diverse," he adds. "And so we're trying to use our research and engagement to do that as well. But yeah, it's also making it possible just to expose the problems so lawyers who want to engage with it can and lawyers who don't want to might be forced to."

That, says those involved in the project, will help make the justice system better for all who interact with it.

How they do it

Simard first stumbled into this work by accident about a decade ago while working on his dissertation, which was about the debt collection work of a Georgia lawyer.

He wanted to argue that laws in the North and South share more in common than we tend to think, by showing that Northern judges cited this lawyer's cases even at the height of sectional tensions in the 1850s and 1860s. He found lots of examples of that — and of such cases being cited as recently as the 2010s, which struck him as strange.

"So I started doing more research and I thought I'd find just a couple examples, but ended up finding [that] the more I looked, the more I found," he says, adding that within a few months he'd found more than 300 examples of judges citing slave cases within the last 35 years.

The project grew over the years, especially as his students got involved.

Together they comb through commercial legal databases, using basic searches to pull out any cases that mention slavery, then reading them in full, collecting relevant information — including the names of the enslaved people — and inputting it into their database.

The team uses Harvard's Caselaw Access Project to connect their cases to all of the others that cite them later on, painting a picture of their lasting influence.

For example: The concept of adverse possession, or squatter's rights, was first extended to personal property in the form of enslaved people. Separately, a 19th-century case in which a slave-owner sued for damages over injury to his personal property was invoked in 1999 by a tire shredding company after its machinery was damaged by a third party.

"Slavery is all over the place," Simard says. "Part of the goal of our project is to make sure that influence is accounted for."

He says it's interesting to see how many cases from outside the South are linked to these slave cases, and how frequently they appear in private law — things like contracts, trusts and estates, mortgages and so on.

The collection shows that many of these cases involve regular commercial transactions, which Simard says is part of the reason they've been ignored.

Recent Michigan State law graduate Bret Bicoy estimates that he's personally collected somewhere between 3,000 and 4,000 cases during his time working on the project.

He told NPR over email that his biggest takeaway is simple: While many people might associate the word "slave case" with Dred Scott or rulings on the institution of slavery itself, the vast majority of cases aren't that at all.

"You see enslaved persons having been listed in someone's will right alongside their cattle, or their horses. You see people who took out mortgages on human beings the way we do with homes. You see people who sued the person who sold them an enslaved person because they deemed said enslaved person to have been 'faulty,' just like you may sue someone for dishonestly selling you a faulty car," he wrote. "They are, unequivocally, the most dehumanizing and despicable documents I have ever read."

He said sometimes he'd have to "slap and remind" himself that all of these were real human beings, not just words on a will.

"I hope our work can help break the legal profession out of that very same trance," he added.

Why it matters

There are other troubling areas of law that need to be similarly investigated, Simard says, pointing to racist opinions that are cited as a matter of fact in many immigration and Native American law cases today.

But, he points out, their problematic foundations are not necessarily a big secret.

"What's unique about slavery is that many of these cases are still just considered basic commercial law cases ... they've kind of permeated into nearly every area of law, and no one has really accounted for that," he says.

Many other countries have gone through some sort of truth and reconciliation process to address similar harms, he adds, like South Africa after apartheid and Germany after World War II.

The U.S. hasn't done that, Simard says. The country has continued to cite and normalize slave cases long after the Civil War and even after the racial reckoning of 2020, which spurred many institutions to grapple with the darker parts of their histories.

"It's very strange if people are tearing down a monument to a slave owner across the street from a courthouse where some judge is secretly citing cases that were designed to [benefit them]," Simard says. "It's like these little monuments all left scattered across our case reporters."

He says the project has been generally well-received, though is not without its critics.

Some law professors have criticized the Bluebook rule for being "unscholarly" and violating academic freedom, while certain scholars have questioned whether the context of the cases really matters (as opposed to the law that's decided by them) and argued that the impact of slavery should be left up to judges' discretion.

Simard says his research proves otherwise. Lawyers and judges have a tremendous amount of power in society, he says, arguing that it makes sense for the public to stop and think about how their authority is constituted through slave cases and what that suggests about their ability to be fair.

"It's no secret that outcomes for Black people are worse in our legal system, and I think people are attuned to that," he adds. "And this gives people another reason to question whether the legal system is actually providing justice."

And while many people describe Simard's work as timely, he doesn't necessarily agree.

"I think it would have been timely 50 years ago, and I'm afraid it'll probably still be timely in 50 years," he says.

What comes next

The team is aiming to complete their final round of data entry in July, but Simard says that won't be the end of their efforts.

"Some Black studies scholars argue that emancipation has never really happened yet, and I think maybe I think about that the same way," he adds. "The Citing Slavery Project will be done when the project of emancipation is done, which may not be in my lifetime."

Simard wants more legal authorities to identify slave cases as such, and has started reaching out to Westlaw and LexisNexis, the main databases used for case research, to lobby for some kind of symbol.

He says their next big frontier is legal education. They've just started a project that involves analyzing the textbooks used by law professors to examine how much slavery has shaped the cases within them and, they hope, eventually help authors and professors to rethink how they discuss race in their curriculum.

And of course, there's the grant-funded pilot program that enabled Simard and several students to meet with high school juniors and seniors, teaching them about precedent and encouraging them to consider law school for themselves.

They also bused a group of high-schoolers to the law school for an event, and hope to continue reaching grade school students and teachers through similar programming.

Taylor Hall, who was involved in the project before graduating this spring, organized and helped lead the workshop at her own alma mater. She told NPR in a phone interview a handful of students seemed interested in becoming lawyers after the presentation.

"We're showing you this not to be like, 'Now it's your turn to become a lawyer and solve all this or whatever in 10 years,' " she said. "But hopefully the connection is students are able to say, 'What is the legal field shaping now that we should be involved in?' "

African Americans make up 5% of the legal profession despite accounting for 13% of the U.S. population, Hall said — a bigger gap than that of other minorities like Asians and Native Americans, who are also underrepresented in law.

"When you meet new people, your perspective changes and you just learn more and you start to see people as people," she added. "That's what diversity and inclusion could do if we had more Black lawyers."

Hall says her experience with the Citing Slavery Project will stay with her as she begins her career, with a job in corporate law.

"A lot of the laws I'll be dealing with are related to slave law and case law," she adds. "I think moving forward, now that I have this in mind, I'll be able to bring this perspective to a place where I'll be like the only Black person in the room. I also know that's not my complete burden to bear, but it's good to know I'll have that in the back of my mind." [Copyright 2023 NPR]