Parise on ownership in American Civil Law jurisdictions

Agustín Parise, Maastricht University, has published Ownership Paradigms in American Civil Law Jurisdictions: Manifestations of the Shifts in the Legislation of Louisiana, Chile, and Argentina (16th-20th centuries) with Brill. From the publisher: 

In Ownership Paradigms in American Civil Law Jurisdictions, Agustín Parise assists in identifying the transformations experienced in the legislation dealing with ownership in the Americas, thereby showing that current understandings are not uncontested dogmas.  

This book is the result of research undertaken on both sides of the Atlantic, and covers the 16th to 20th centuries. Agustín Parise offers readers a journey across time and space, by studying three American civil law jurisdictions in three successive time periods. His book first highlights the added value that comparative legal historical studies may bring to Europe and the Americas. It then addresses, in chronological order, the three ownership paradigms (i.e., Allocation, Liberal, and Social Function) that he claims have developed in the Americas.

Full Contents after the break:

Happy Endings in History

Do I want my story to have a happy ending or a sad ending? As I was completing The Sit-Ins: Protest and Legal Change in the Civil Rights Era, I found myself, to my surprise, stuck on this question.

Not the typical question the historian asks, right? If the history ends happily, then go happy. If not, go sad. Of course academic historians are serious folk, we write serious history, and sad is more serious than happy, so we usually go sad. If things are looking bright, point out the shadows. If things are looking dark, show just how serious (systemic, structural, durable) the dark is.

I suppose we’re allowed a happy-ending pass if we focus on groups who are working against immeasurable odds and resisting oppressive circumstances. But here too, even as we praise remarkable accomplishments, we must then rein in that optimism by ensuring the reader’s attention never strays far from the oppressive forces that remain, of setbacks down the road, of other groups that remain left behind.

Here’s the problem: I’m a happy guy. My glass is half full. I tend to be more curious about why good things happen than why bad things happen. This surely helps explain why I first became fascinated with the 1960 lunch counter sit-in movement, a moment in history that even the most pessimistic of historians would recognize as a remarkable achievement.

But, still, as I finished writing The Sit-Ins, I was stuck. Did I want to close the book by emphasizing what was achieved by this protest movement and the ensuing national debate over racial discrimination in public life? Or did I want to emphasize what the sit-ins failed to achieve? Was this to be a story of victory or noble defeat?

I went with a victory. I wanted to write a book that could not just explain but also inspire. Plus, historians are trained to listen carefully to the words of those whose lives they describe, and the students who sat in protests at lunch counters in the spring of 1960 talked all the time (during and afterwards) about the movement’s victories.

It is important to note that I had a choice here. And the reason I had a choice is because there are so many viable options for measuring victory. This point holds whether we impose our own definition of victory or whether we locate a definition of victory held by the historical actors themselves.

The most obvious measure of victory for the sit-in movement was the desegregation of pubic accommodations, a process that culminated in the passage and successful implementation of Title II of the 1964 Civil Rights Act. But well before that unmistakable achievement, the students themselves identified countless other measures of success. Standing (and sitting) alongside thousands of other college students as part of this new, defiant movement was an achievement. Creating student-run organizations that would strategize and coordinate sit-in protests might be cited as a win for the movement. Students saw going to jail as a valuable experience, both for the individual protester and the larger movement. For the most dedicated of freedom fighters, even enduring a beating was a victory. “This was an experience we needed,” one participant explained about the violence against sit-in protesters. The Sit-Ins documents the many opportunities the protesters found to declare victory.

But there is another side to this story, one that emphasizes the conspicuous failures of the sit-in movement. Even as they strategized and touted these attainable movement victories, activists and their allies also defined their goals in a more idealistic, aspirational register. The sit-ins, as Ella Baker famously proclaimed, “are concerned with something much bigger than a hamburger or even a giant-sized Coke.” The true goal of the movement, she said, was “to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”

“We are willing to go to jail, be ridiculed, spat upon and even suffer physical violence to obtain First Class Citizenship,” one student group declared. For James Baldwin, the sit-in movement was aimed at “nothing less than the liberation of the entire country from its most crippling attitudes and habits.”

Measured by these standards, the sit-in movement might be classified as, at best, a qualified success. Or perhaps, if we use Baldwin’s standard as the benchmark, a noble failure.

In the midst of the battle over discrimination in public accommodations, few questioned the importance of the issue they were fighting over. The mere fact that white southerners fought so hard to protect their “right” to discriminate confirmed the importance of the issue. Yet once the battle was won, and Title II of the 1964 Civil Rights Act was the law of the land, people on both sides began questioning the significance of the victory.

“Desegregation of public accommodations does not basically alter the pattern of social life anywhere,” observed a Mississippi restaurant operator. “That is why it has been accomplished as easily as it has.”

From a very different perspective, civil rights organizer Bayard Rustin arrived at much the same conclusion. “[W]e must recognize that in desegregating public accommodations, we affected institutions that are relatively peripheral both to the American socio-economic order and to the fundamental conditions of life of the Negro people,” he wrote in his famous 1965 essay, “From Protest to Politics.” The sit-ins had targeted “Jim Crow precisely where it was most anachronistic.” They had toppled an “imposing but hollow structure.”

Or, as the African American comedian Dick Gregory once explained: “I sat in six months once at a Southern lunch counter.  When they finally served me, they didn’t have what I wanted.” It’s a funny line, with enough truth to cast a shadow over any victory celebration.

What I settled on in the end was to acknowledge these voices of caution and pessimism but to not let them be the final word. I sought to convey the limitations of the changes the sit-in movement made possible, but to leave the reader with something more hopeful. Not quite a happy ending, but something closer to happy than sad.

Here are the closing paragraphs of The Sit-Ins:

The resolution of the issue first given prominence by the students sitting at lunch counters in the winter of 1960 was one of the greatest achievements of the civil rights era. This book is, in part, an effort to celebrate the sit- in movement and the legal battles over discrimination in public accommodations that the movement sparked. It is an effort to draw attention to this triumphant moment in our ongoing struggle for racial justice, to better understand why this campaign for social and legal change worked, when so many others did not.

Other battlefronts in the African American freedom struggle proved far more difficult to uproot than racial exclusion in public accommodations. The powerful synergy between social protest and legal change that made the campaign against racial discrimination in public accommodations so powerful and consequential was hard to replicate in other areas. The struggle to implement Brown dragged out for decades, and we still face pervasive segregation in our schools. Disparities of wealth and income across racial lines persist, a particularly stubborn reminder of the continuing effects of slavery and Jim Crow. Racial disparities in our criminal justice system—from the stunning overrepresentation of racial minorities in our bloated prison populations to racially discriminatory police practices—remain one of the most significant challenges we face as a nation.

Our challenge is to find new ways combine social protest and legal claims to disrupt those practices and policies that perpetuate old inequalities and create new ones. The lunch counter sit- in movement shows that it can be done.

Weekend Roundup

• An article in Politico on the demoralization of workers in the federal government includes the report that officials at the National Archives and Records Administration forbid the presentation of a program on “the historic context of immigration to the United States because it might attract ‘unwanted attention’" and jeopardize NARA funding. 

• On Tuesday, April 10, 2018, at 4:30 p.m., at Barat House, Boston College Law School, BC’s Clough Center for the Study of Constitutional Democracy will host The Public Roots of Private Ordering: An Institutional Account of the Origins of Modern American Arbitration, a lecture by Amalia D. Kessler, Stanford University.

•  We’re indebted to H-Law for posting Dominique Clement’s report that a complete collection of briefs to Canada's Special Joint Committee on the Constitution (1980-1) has been posted to Canada's Human Rights History.

• We realized the other day that the Great Courses is marketing a lecture series by Douglas O. Linder, University of Missouri–Kansas City School of Law, entitled The Great Trials of World History and the Lessons They Teach Us.  For many years, Professor Linder has performed an invaluable public service by gathering well-chosen materials on dazzling and ever-expanding collection of famous trials and making them available gratis.  If any professor deserves the patronage of the public for such a venture, he does!

• Harvard Law School hosted a panel discussion on George H. Gadbois Jr.' Supreme Court of India: The Beginnings this past week, featuring LHB blogger Mitra Sharafi, Mark Tushnet, and Sugata Bose. The session was chaired by Vasujith Ram, co-editor of the book, which is a posthumous publication of Gadbois' 1965 PhD dissertation. Here is an obituary for George Gadbois, who passed away in 2017, by the other co-editor of the book, Vikram Raghavan. 

• On May 8, the Supreme Court Historical Society and the John Simon Guggenheim Memorial Foundation will cosponsor a conversation between Professors Randy Barnett and Richard Primus about Modes Of Constitutional Interpretation.  Judge Patricia A. Millett will moderate the discussion. 

• The Riots of 1968: Hitting Home Here in Washington, a presentation by Jamie Stiehm, a Creators Syndicate columnist, on Saturday, April 14, 1:00pm, in the Peabody Room at Georgetown Neighborhood Library.

• ICYMI: Jed Shugerman and Ethan J. Leib, Fordham University School of Law, on the Take Care Clause and presidential pardons, in WaPo.  Also, we’ve previously noted the SSRN draft of Martin S. Lederman’s “The Law(?) of the Lincoln Assassination.”  The article is now out in the Columbia Law Review 118 (March 2018): 323-489.

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Rethinking the Role of State Courts in the Lives of Black Southerners: What I've Learned

I've very much appreciated the opportunity to blog about the research in my new book Litigating Across the Color Line this month. Today, on my final day of blogging here, I thought I would reflect on some of the things that I have noticed and learned about black southerners’ participation in civil cases in state courts during this project.

1) Shifts in Legal Rights Were Aligned with Voting

There was no sudden shift in what appellate civil cases between black and white southerners looked like as Reconstruction gradually ended in southern states. Instead, the shifts seem to be aligned to some extent with voting rights. The types of cases black litigants could participate in became much more narrow at the end of the 19th century as disfranchisement set in. Then, beginning in the 1920s as the Great Migration led to increases in black voting around the nation, black southerners' civil cases became much less constrained once again and began to engage a wide variety of issues. This broadening of cases continued in the 1940s as voter registration drives had some success in the U.S. South.

2) Civil Litigation continued throughout different periods, but shifted to fit the constraints of the time

Even as black southerners’ ability to litigate different kinds of civil cases in southern appellate courts widened or narrowed during different periods, African Americans continued to litigate civil cases against whites from 1865 to 1950. In other words, at no time did they actually stop interacting with state governments through the legal sphere. Instead, as their political and social constraints narrowed, they shifted the kinds of cases they litigated and how they presented themselves in their cases.

3) Black Southerners engaged with the government at multiple levels

In the cases I looked at, I found African Americans at times engaging the government at multiple levels over a single dispute– including engaging with the local, state, as well as the federal government.  The case of Henry Buie that I discussed in my blog post yesterday gives us one example of this engagement with the government at multiple levels. After his master took his mule, Henry Buie turned for assistance to the local branch of the Freedmen’s Bureau and successfully convinced them to take action in his cause. But it was not only federal power – but also state power that the freedman accessed. When his former master filed a civil suit to regain the mule, the former slave responded by hiring his own lawyer and fighting his former master’s claim in the local county court and then in the state supreme court. In this case alone, then, the suit was fought on at least three levels – before the Freedmen’s Bureau, before the local court, and before the state supreme court. In other cases, I found similar attempts to bring cases before multiple arbitrators and to attempt to pick the arbitrator that would be most sympathetic to their cause.

4) Government Institutions that seemed hostile could still be possible realms to exercise rights – if you could align your interests with the interests of those making decisions in that realm, or at least make your case seem harmless

I learned that government bodies that seem initially to be hostile to African Americans could still be institutions in which African Americans could have some success. Again and again – not only during Reconstruction, but in the two decades following as well as in the first half of the 20th century – some African Americans were able to negotiate the white-dominated southern legal system to gain decisions in their favor. To win civil cases against whites in state and county courts, black litigants often had to align their cases with whites’ interests, so that it was in the interests of the legal system to rule for them, rather than for the opposing white litigant. At the very least, they had to make it appear that ruling for them would have a net zero effect on the larger system of white supremacy. But when African Americans’ cases directly confronted the interests of larger numbers of whites in a substantial way – even when they appealed to rights such as property, they were frequently unsuccessful.

5) It was necessary to use whites to access the southern legal system and government power

In order to access government power through the courts, African Americans had to use and appeal to whites – white lawyers, white judges, white witnesses, and white jury members. Black litigants could not have litigated in southern courts without these whites. But working with whites had consequences. White lawyers limited the kinds of cases black southerners could litigate and shaped the arguments their cases could make. The important role of white witnesses in such trials also gave preference to suits in which whites agreed to testify. Moreover, black litigants’ dependence upon white juries and judges for favorable decisions at times led them to tailor their testimony and cases to their audiences, presenting themselves as more loyal or uneducated than they really were.

6) These suits were often intensely personal, involving long histories between the black and white litigants

In two-thirds of these cases during Reconstruction and about a third of cases in the two decades after Reconstruction, men and women who had been considered property now sued the very people who had owned them or their former owners’ heirs. They carried with them into court their long histories together during slavery.

7) The actions of black litigants played an important role in the outcomes

African Americans negotiated within the white-dominated courts by recognizing the interests of the people wielding power in this realm, and framing their claims to appeal to such parties. Often, black litigants had been coached by their lawyers on what to say in their testimony. But black litigants also made decisions about what to say in their testimony based on their knowledge about race relations in their communities and, at times, their understanding of relevant law and the facts of the case. Their testimony and other choices during the course of litigation often played an important role in the success of their cases.

8) Not just the usual suspects participated in civil cases. 

The final lesson I learned was that participants in the state courts went far beyond educated black men. Ordinary black men and women all played a part in the courts during the 85 years after the Civil War. During the three and a half decades after the Civil War, even the African Americans who gained a hearing of their case before a state’s highest court usually had very little formal education. Many had lived part of their lives as slaves or were the children of former slaves. In addition, in an era when white men dominated politics, almost half of these black litigants were women. Between 1865 and 1950, black women formed approximately 41 percent of African American litigants in civil cases between black and white litigants in the eight appellate courts examined.  The role of ordinary black men and women in these cases re-envisions the courts as not only a forum for test cases backed by organizations, but as a place where ordinary black and white southerners challenged each other and worked out their economic disputes against each other.

Please feel free to be in touch (contact details here) if you have any questions about my research. I will continue to release the transcripts and archival records of some key cases related to my research on my website in the coming months as well. Thank you again for the opportunity to blog here this month!

Black Southerners' Suits Against their Former Masters: Cases and Teaching Resources

I'm back for a final week of blogging about the research in my book Litigating Across the Color Line. Today I'll be discussing the cases that I found between former slaves and their former masters and the heirs of both parties. These cases make up about two-thirds of the appellate civil cases between black and white litigants in the eight states I examined during the Reconstruction era (1865-1877) and about one-third of such appellate cases during the two decades after Reconstruction (1878-1899). These cases are a particularly rich source to examine African Americans' experiences during slavery and their shifting interactions with their former masters and mistresses after emancipation as well as an important source to examine the legal strategies that these groups used against each other in the years after emancipation.

Courtesy Mississippi Dept. of Archives & History

Cases involving former slaves and former masters are often intensely personal, with both parties testifying in court not only about their changed relations after the Civil War, but also about their decades of previous interactions with each other during slavery. Both former slaves and former masters characterized their experiences with each other during slavery in certain ways to win their suits. At times during trials, former masters argued that their former slaves were disloyal or dishonest. In contrast, some formerly enslaved men and women presented themselves as particularly hardworking or faithful. Other black litigants boldly challenged their former masters and their former masters' heirs, claiming that their former masters' heirs and executors had fraudulently taken funds directed for them or earned by them. At the same time, former slaves and former masters (and their heirs) both frequently drew on their long-term knowledge of each other to gain the advantage in their suits. Former slaves noted in their testimony conversations and experiences that they had had with their former masters to support their legal claims. Meanwhile, former slaveholders sometimes used their previous experiences with the black litigants to try to hurt former slaves' reputations.

In a number of cases, former slaves challenged their former masters' wills. At times, they asserted that bequests to send them to Liberia could be received without such migration. In the 1872 Missisippi case of Cowan v. Stamps a slaveholder named Abner Cowan had written a will in 1850 that directed that all of his slaves and their "increase" be sent to Africa after his death. According to the will, all of his property should be sold after his death to pay for their travel and any remaining funds were to be given to his former slaves for their "use and benefit" upon "their arrival on that Continent." However, Abner Cowan did not die until the end of 1864 and at the time, the area of Missisippi in which he lived was a no-man's land between Union and Confederate forces, making it impossible to initiate probate proceedings. After the war, about 30 of his former slaves became litigants in the civil action over his will and claimed that they should be able to receive the proceeds of his estate without immigrating to Liberia.

In other cases, former slaves challenged their former masters' ability to control them or their property after the war. In the 1869 North Carolina case of Buie v. Parker, Henry Buie had found a mule that had been abandoned by General Sherman's forces during the last months of the Civil War. At the time that he found the mule, his master had recently fled before the Union Forces, telling his slaves that "they could go to the Yankees or stay at home, as they pleased." Henry Buie remained on his former master's plantation, but when his master eventually returned after the war's end, he insisted on keeping the mule for himself. He continued working on the same plantation, though, now as paid labor. Matters came to a head sometime between the end of 1865 and the beginning of 1868, when Henry Buie's former master John Buie forcibly took possession of the mule. In response, the freedman made a claim to the local office of the Freedmen's Bureau which mobilized the Union Army to return the mule to the former slave. To try to regain the mule, his former master then filed a suit against him in the local county court. Henry Buie responded by hiring a lawyer of his own and requesting not only that he retain possession of the mule but also that the court award him "one hundred dollars damages" for his former master "taking and withholding" the mule.

In a few cases, former slaves litigated suits against their former masters claiming funds that they had earned while they had been enslaved. In the 1869 North Carolina case of Lattimore v. Dixon, Abner Lattimore claimed that his former master Thomas Dixon had stolen over $1,000 in promissory notes that he had earned as a slave through livestock trading and money lending. In a limited number of other cases, the sexual violence that enslaved women experienced played a role in ensuing litigation. The 1877 Alabama case of Potter v. Gracie revolved around whether or not Mary Gracie -- who had a son fathered by her former master -- had been her former master's "mistress" after emancipation (a piece of property hung on the answer to this question).

In some of these cases, we can see the shifts in the interactions of former slaves and former masters taking place -- and at times such shifts seem to be spurred in part by the litigation itself. During the course of the litigation with his former master, for instance, Henry Buie changed his actual name, throwing off the surname of his former master and taking on the name Henry Parker. Appealing to the memory of their former masters could be a useful tactic to win cases, therefore, but litigation itself could also shift the relations of former masters and former slaves as well.

On my website, www.melissamilewski.com, I have put up transcripts and scans of the case files of a number of cases involving former slaves and former masters (including the cases mentioned here). After the jump below are also brief excerpts from the Lattimore v. Dixon and the Cowan v. Stamps cases.

What Kinds of Civil Cases Black Southerners Litigated Against Whites in Southern Courts, 1900-1950

Yesterday, my blog post discussed the kinds of civil cases black southerners most frequently litigated against whites in eight southern state supreme courts between 1865 and 1899. Today, I'm drawing on the research in my new book Litigating Across the Color Line to discuss the most common kinds of appellate civil cases litigated by African Americans against whites between 1900 and 1950, and how black southerners' cases shifted during this period.

Courtesy: Library of Congress

Black southerners had litigated a range of appellate civil cases against whites between 1865 and 1899, and often asserted their rights in such cases boldly. But as disfranchisement and segregation increasingly set in at the end of the 19th century, the kinds of civil cases black litigants were most able to litigate against whites in their state's highest courts shifted. During the first two decades of the 20th century, in particular, the types of appellate civil cases between black and white southerners narrowed significantly. Now, almost three-fourths of the appellate civil cases examined involved personal injury or fraud in property dealings. To a limited degree, this reflected larger legal trends, including the nationwide growth in tort cases. However, I argue that fraud and personal injury cases occurred especially frequently in appellate civil cases between black and white litigants during this period because the legal claims necessary to support these cases also sometimes supported whites' ideas about racial inequality. According to the law, it was difficult to bring a case of fraud if both parties in the transaction stood on an equal footing. Similarly, in personal injury cases, litigants needed to demonstrate that they had suffered injuries that caused them pain and loss of income. As a result, black litigants in such cases had strong motivations to present themselves as particularly vulnerable, and/or uneducated, which they almost uniformly did in cases that reached southern state supreme courts. Such presentations supported both their legal claims and white jury members' and judges' ideas about race, allowing black southerners to litigate cases against whites even at the height of Jim Crow.

In one 1907 Alabama fraud case, the white defendant J.W. Abercrombie had defrauded the elderly black plaintiff, 81-year-old Andrew Carpenter, by telling him that he was signing a mortgage when he was actually deeding away his property. In response, Carpenter brought a civil suit against Abercrombie. In his testimony, just as in the testimony of almost every other black litigant in an appellate fraud suit during this period, Carpenter emphasized his lack of business knowledge, stating “I do not know anything about the significance of deeds and mortgages, or legal papers.” But even as they emphasized their lack of education in such suits, African Americans' defiance and assertions of their rights still sometimes clearly came through. Carpenter also testified that when he confronted the white man about the fraud, Abercrombie had offered to pay him a small fraction of the costs of the property. Carpenter then testified, “I told him I would not take $100 but before I took that I would die first.” He continued, “I came on then to see if I could get any rights in court.”*  Despite such assertions of individual rights, however, most such cases during the first two decades of the 20th century made no larger claims for African American rights as a whole.

Then, between 1921 and 1950, the kinds of cases that black southerners could litigate in southern appellate courts broadened once again. In addition, more and more seemingly everyday kinds of suits litigated by individuals over personal injury, property, contracts, and wills began to include challenges to the racial status quo. Unlike the personal injury cases of the first decades of the 20th century, for instance, Ethel New's mid-1940's personal injury case challenged racial discrimination as well as claiming damages for the plaintiff's injury. New’s husband was stationed in Virginia as WWII came to an end and when the incident occurred, she had been returning from a visit to him, three months pregnant. She stood up for the first 81-mile leg of her bus journey as there were no seats in the section on the back of the bus reserved for African Americans. Finally, in Lynchburg, Virginia, she obtained a seat in the second to last row. A few minutes later, though, a bus driver ordered her to move to the last row of the bus to accommodate the white passengers who had just boarded. Seeing that the back bench was hard and did not recline, New refused to move. In response, the bus driver and an officer dragged her off the bus by her shoulders and legs. After reaching her destination of Kentucky, New’s back and leg ached and she suffered a miscarriage. She hired a lawyer to file a personal injury suit. The suit protested not only her own treatment and the loss of her unborn child, but also the segregation laws that required her to sit in the back of the bus. Indeed, the suit stated that New’s injuries had been a direct result of her race. While New's case was ultimately unsuccessful in both the trial and appellate courts, she had asserted not only her own individual rights, but the rights of African Americans to equal treatment on public transportation.**

These largely individual-led civil cases challenging discrimination during the 1920s, 1930s, and 1940s existed alongside the NAACP's legal efforts to challenge discrimination. Ethel New's law firm, for instance, also played a part in representing Irene Morgan in the 1946 NAACP-led suit Morgan v. Virginia over interstate bus travel. In general, though, the civil suits during this time that challenged discrimination in southern appellate courts seem to have been brought by individuals who had economic stakes in the suits, as well as concerns over equal rights. In these ways, these suits had many similarities to the many civil appellate suits between black and white southerners that had occurred in the decades before.

 

* Abercrombie v. Carpenter, 150 Ala. 294 (1907).

** New v. Atlantic Greyhound Corporation, 186 Va. 726 (1947)

What Kind of Civil Cases Black Southerners Litigated Against Whites in Southern Courts, 1865-1899

As black southerners litigated civil cases against whites in southern appellate courts from the end of the Civil War to the mid-20th century, they found it far easier to litigate certain kinds of civil cases against whites than others. The types of civil cases that they could litigate in appellate courts also shifted over time.

Courtesy: Library of Congress

A baseline for what kinds of cases state supreme courts around the country were hearing can be

established from an extensive study of almost 6,000 cases heard by 16 state supreme courts around the U.S. (including several in the South) completed during the 1970s. An analysis of the kinds of cases found to be coming before these courts between 1870 and 1970 appeared in the January 1977 Stanford Law Review. In contrast, the research for my new book Litigating Across the Color Line found the proportions of different kinds of appellate civil cases litigated by black southerners significantly diverged from the proportions of such cases documented in U.S. state supreme courts as a whole.

The most frequent types of appellate civil suits litigated by black southerners against whites between 1865 and 1899 were suits over wills/bequests, cases over transactions/contracts, property dispute cases, and cases over personal injury. In particular, during this period, African Americans litigated appellate civil cases against whites over wills and estates far more often than such cases appeared in general appellate litigation. While the 1977 study found cases over inheritance/estates made up 6% of overall cases between 1870 and 1900, inheritance/estates cases made up approximately 36% of black litigants' appellate civil cases against white litigants in the 8 courts examined between 1865 and 1899. In such cases, black litigants frequently litigated suits against white heirs to obtain a bequest left in a former master or former employer's will. For instance, a number of former slaves who had been left money in former masters' wills to facilitate their migration to Liberia brought civil suits after the Civil War to claim the bequests without having to move to Liberia.  I argue that such cases made up a large proportion of black southerners' litigation because they drew on the power of a white person's will and appealed to respected legal precedents around bequests.

In addition, cases over contracts and transactions occurred about twice as often in African Americans' appellate civil cases during Reconstruction than they occurred in general appellate cases during this time. In these cases over contracts and transactions, black litigants presented themselves as able to function competently and independently in the postwar economic realm and at times boldly challenged economic injustice. In one such contract suit in 1873, a black sharecropper named Moses Summerlin did not tend his crops for several weeks after his wife died. He soon returned to the fields but when he asked William Smith, the white owner of the land, to aid him in hauling the cotton and corn, Smith refused and accused the sharecropper of producing only half of the crop that he could have. In response, Moses Summerlin brought a civil case against Smith that appealed to the law of contract to gain his portion of the crop. In his testimony, Summerlin emphasized his economic abilities, stating that he had employed “five or six hands” to work for him. At great personal risk, Summerlin also told the court that when he had asked the white landowner to give him his portion of the crop, Smith ordered him out of the yard and told him “if he came back he would kill him.”  In the end, the county court ordered the white landowner to pay $113.18 and legal costs to Summerlin, and on appeal, the Georgia state supreme court upheld the decision. While this was significantly less than the amount the sharecropper had claimed, Summerlin had shifted -- in some small way -- the terms upon which he and Smith operated.* Through his litigation and testimony, he had also publicly expressed his own ideas about how the post-war southern economy should function.  At the same time, by hearing such suits and at times ruling in favor of the black litigant, white jury members and judges could show the supposed justice of southern courts and seek to elide widespread unfairness in the labor system and property transactions.

I'll be back tomorrow morning to discuss the kinds of appellate civil cases black litigants most frequently litigated against whites in southern courts between 1900 and 1950.

*Smith v. Summerlin, 48 Ga. 425 (1873).

The American Historian magazine's November issue on Law and the Courts

Cover Design: Ashlee W. Smith; Photo: Emmanuel Huybrechts        

The Organization of American Historians' magazine, The American Historian, has focused its November 2017 issue (out online today) on Law and the Courts. The issue includes resources for teaching legal history, including a discussion of several scholars' favorite court cases to use in the classroom and an article by Robert Cohen and Laura Dull that encourages including Ruth Bader Ginsburg when teaching about the women’s rights revolution.

Additionally, the issue contains a roundtable in which three scholars discuss "Historians in Court," including the ethical difficulties posed by historians’ participation in the courtroom and how effective historians’ testimony is in the courtroom. As part of the roundtable, Tomiko Brown-Nagin discusses her experience filing amicus briefs with the U.S. Supreme Court in cases dealing with discrimination and affirmative action in education, Linda Gordon talks about amicus briefs she has participated in in abortion cases, and Kenneth Mack explains his experiences supervising a professional historian’s expert report as a young lawyer and later signing amicus briefs from scholars and historians to the US Supreme Court. 

My own article in this issue, “Rethinking the Role of the Courts in the Lives of Black Southerners,” discusses how black southerners’ civil cases reframe the traditional narrative of African American political participation.  In the traditional narrative, black southerners move from institutional engagement during Reconstruction and its aftermath to a fight largely outside of government institutions in the US South, only to take up the fight for the vote again in the decades immediately before the Civil Rights movement. I argue that looking at black southerners’ engagement in southern courts shifts this story, showing continuing engagement with one southern government institution – the courts – from Reconstruction to the Civil Rights movement. In addition, the magazine contains an article by Susan J. Pearson on "Anticruelty Organizations and Statebuilding in Gilded-Age America” and a consideration of the history of felon disfranchisement laws and prison gerrymanders by Christina Rivers. 

The full issue can be accessed by OAH members on the OAH website here, but non-members can also look out for selected articles from the issue that may be released to the public on the magazine's website.

How Black Litigants Shaped Their Civil Cases Against Whites

Today I’m guest blogging about how black southerners negotiated the post-Civil War legal landscape.  In particular, I want to consider how they worked to shape their civil cases against whites. This research is laid out in greater detail in my new book, Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights.

As African Americans litigated civil cases against whites in the U.S. South from the end of the Civil War to the mid-20^th century, they saw that the outcomes of their cases would often have enormous economic effects on their families. At the same time, black litigants generally seem to have recognized the difficulties of operating within the southern legal system – an institution in which those making decisions generally had very different interests than their own. To give their cases the best possible chance, then, black litigants in almost one thousand civil cases that reached eight southern appellate courts between 1865 and 1950 often employed a range of strategies.  While their lawyers undoubtedly played a key part in many of these strategies, black litigants played an important role in shaping and executing them as well.  

First, in almost every civil case between black and white southerners that I found in eight southern state supreme courts, black litigants had hired white lawyers to represent them. The white lawyers involved were often prominent members of the community and seem to have generally taken on a few black litigants’ cases alongside their larger practice of cases involving white litigants.  Often, white lawyers seem to have taken on black clients because their cases promised to yield a large financial reward. At times, however, they seem to have also been influenced by personal connections, paternalism, ideas of professionalism, or very occasionally, to have genuinely sympathized with the causes of their black clients. Using a white lawyer helped make black litigants’ cases seem less threatening and more acceptable to white judges and juries. At the same time, it limited the kinds of cases they could bring and the types of arguments that their suits could make.

A number of black litigants also emphasized connections with prominent whites in their communities.  While this occurred particularly often in cases during the three and a half decades after the Civil War, such strategies were also occasionally employed in the first half of the 20^th century.  At times, black litigants mentioned their ties with local whites in their testimony, including at times their connections to former masters. In other cases, black litigants may have played a part in identifying the white witnesses who frequently testified in their favor in such cases.  

Black litigants also shaped their testimony based on their understanding of the relevant law. Case files suggest that they gained some knowledge of the law from coaching and conversations with their lawyers. They also learned from participating in legal actions and daily experiences in a law-saturated society.  Black litigants then often worked with their lawyers to shape their testimony to meet the demands of the law for their particular case. In suits over bequests, for example, black litigants’ testimony sometimes helped to establish the testator’s intention to leave the bequest to them, an element that one 19^th century Tennessee judge called “the great rule in the construction of wills.”[i] In fraud cases, on the other hand, black litigants’ testimony often worked to establish proof of physical injury and loss of income, two important elements to proving such a claim.

Finally, some black litigants used their knowledge of white southern racial attitudes to present themselves in ways that would elicit favorable responses from largely white juries and judges. In the decades after the Civil War, they occasionally presented themselves as having been loyal to their former masters, even after the end of the war.  At other times they presented themselves as hardworking, “respectable,” or unthreatening. The ways in which they presented themselves also shifted over time. During the two decades after widespread disfranchisement occurred at the end of the 19^th century, black litigants often presented themselves in their testimony as more ignorant, more vulnerable, and more trusting of whites than they actually were. 

These strategies played a part in some African Americans’ continuing ability to litigate and win civil cases against whites in the Jim Crow South, even after black men largely lost the right to vote. At the same time, these strategies sometimes limited their cases in important ways.  Moreover, even as they carefully negotiated the southern legal landscape, black litigants found that in contrast to the broad range of cases litigated between whites, they had the most success bringing certain kinds of cases against whites.  The kinds of cases they could litigate shifted over time, as well, as the constraints they operated under changed.  I’ll be back talking about this in my next blog post in a few days.

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[i] Lynch v. Burts, 48 Tenn. 600 (1870).

How to Find Civil Cases Between White and Black Southerners in State Court Records

I’m excited to be guest blogging all month here at the Legal History Blog. I am a lecturer in American History at the University of Sussex in England and my new book Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights is releasing this month. My book examines almost one thousand civil cases between black and white southerners that took place across eight southern state supreme courts from 1865 to 1950. In these hitherto largely unexamined cases, individual black and white southerners contested economic matters central to their lives including disputes over property, contracts, transactions, personal injury, and bequests.  These suits between black and white southerners continued to regularly take place in southern courts even after disfranchisement set in around the South. My book considers how African Americans were able to litigate and win suits against whites in the Jim Crow South – and the limitations they met and compromises they had to make in order to do so. 

Throughout the month, I’ll be blogging about different aspects of my research, including the role of black women in these suits, the frequent suits brought by former slaves against their former masters, how these suits shifted over time, the strategies used by black southerners that helped them to win suits against whites, and these suits' links to the U.S. Civil Rights movement. I’ll also be providing links to some excerpts from the archival case files of some key cases examined in my book, which highlight what these sources look like and may be useful for teaching.

Before discussing what I found in my research, though, I wanted to start by discussing how I found these court records. These appellate civil cases are a very rich source in which much further research remains to be done. While the suits themselves are not representative of all civil cases litigated by African Americans in lower courts, they allow analysis of African Americans’ experiences in both trial and appellate courts. The archival case files of suits that reached southern supreme courts generally include the full trial records of the lower court case as well as records of the appeal. Often, the archival records for each case number 200 or 300 pages and include extensive trial testimony from African Americans as well as others in their communities.

I found these civil cases involving African Americans by doing advanced keyword searches on the LexisNexis database in the state supreme court records of each of the states examined. The search terms I used included “slave, freedman, freedwoman, Negro, black, Africa, African, color, colored and Negress.” As these cases took place over 85 years, certain terms were more common during certain periods than others.

After these keyword terms produced thousands of cases on LexisNexis, I then went through the LexisNexis record of the court cases to determine if the case actually involved a black litigant, and whether it took place between black litigants or between one or more black and white litigants. In many cases it was possible to determine this from the LexisNexis record, but in some cases it was necessary to look at the archival record or census data to determine the racial identity that southern courts and southern society assigned to the litigants.

Courtesy of the Kentucky Dept. for Libraries and Archives.

After compiling long lists of cases that might involve African Americans for each of the eight states, I then turned to archives in each state to examine the original archival case files. Generally, the case files were held by the state archives of that particular state. In Arkansas, however, the records were at the University of Arkansas at Little Rock’s Law Library and in Virginia, records were held by the Virginia State Law Library, The Library of Virginia, and the University of Richmond’s William Taylor Muse Law Library (for a complete list of all the archives I consulted, see the Bibliography of Litigating Across the Color Line).  Fortunately, the vast majority of case files involving African Americans that I sought at these archives and law libraries still survived.  Some case files were still tied in what seemed to be their original faded ribbon, and several archivists noted that these records had only rarely been requested.  I concluded my search for these cases here at the archives by examining the case files to check the racial identities assigned to the litigants. As a result of this research, I found 980 appellate civil cases between black and white litigants and 397 appellate civil cases between two or more black litigants in the state supreme courts of eight southern states from 1865 to 1950.

I’ll be back again in a few days with more about how I analyzed this data and what I found in these cases. 

Using film to teach US legal history

[This is the first of two posts on film & pedagogy. The second is on global and non-US legal history.]

Credit: IMDb

What films (and film clips) do you use when teaching legal history? This summer, we asked many of you this question (H/t: Law & History CRN). We received an avalanche of responses. Here they are, hopefully just in time for your fall syllabus needs. (Most responders describe films and video clips shown in class, but some assign videos to be watched in advance.)

For teaching US legal history:

• Winston Bowman: I frequently use two clips: (1) the scene from Dirty Harry in which a prosecutor tells Clint Eastwood's character that a serial killer will be set loose because he failed to follow proper procedures. Rather oddly, the scene includes a judge and professor from Berkeley who scolds him for failing to obtain a warrant. (2) a surprisingly affecting cartoon from Orson Welles' adaptation of Kafka's The Trial. The cartoon is an interpretation of "Before the Law," a parable about the tantalizing and confounding promise of access to justice that is included in the novel and was also published as a short story. 
• Al Brophy: I brought my legal history seminar students (it was a seminar on slavery and property) to 12 Years a Slave back when it was a first run movie.
• Orna Alyagon Darr: I use Gideon's Trumpet that tells the story of Gideon v. Wainwright when I teach the history of the right to counsel & the public defenders system.

More after the jump.

Goold on Owning Body Parts

Imogen Goold, St Anne’s College Oxford has published Flesh and Blood: Owning our Bodies and Their Parts with Hart Publishing. The book is in part historical in its approach. From the press:

For centuries, human bodies and their parts have been used for scientific and medical research, as a source of transplant organs and even for the creation of artistic works. Human tissue is taken, tested and stored during forensic investigations and stored in databases across the country. We can examine the DNA in almost any cell of the body to yield personal information, while increasingly tissue's importance for research and the production of treatments has seen it become an item of commerce. Tissue is both object and information, laden with psychological, cultural and emotional significance while also being a tool that is used daily in medicine, criminal investigations and research. Its use presents complex challenges for legal regulation. As a result common law legal systems have so far struggled to produce a coherent, principled approach to regulating the use of human body parts. Drawing on the fields of ethics, law and history, the author develops an interdisciplinary and holistic account of the challenges arising from human tissue use and the options for regulation. Part one of the book contextualizes the difficult issues surrounding the use of human tissue by presenting an historical account of how we have dealt with bodies and their parts since ancient times. Part two provides a detailed examination of the law covering tissue use in the United Kingdom, Australia and the United States. Part three explores the range of regulatory mechanisms that might be applied to human tissue, focusing on the notion of property at common law. The book concludes by analysing how property principles might be applied to human tissue and argues for why they should be.

Further information is available here. 

Prest and friends on Blackstone's Commentaries

Now out with Hart is a collection edited by Wilfred Prest, University of Adelaide: Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts. From the press:

This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. 

In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. 

The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. 

This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).

Here’s the line-up:

·     I WORDS AND VISIONS
1 Blackstone's 'Stutter': the (Anti)Performance of the Commentaries
Kathryn Temple
William Blackstone: Courtroom Dramatist?
Simon Stern
2 Blackstone as Draughtsman: Picturing the Law
Cristina S Martinez
3 Blackstone's Commentaries: England's Legal Georgic?
Michael Meehan

II BEYOND ENGLAND
4 Blackstone in the Bayous: Inscribing Slavery in the Louisiana Digest of 1808
John W Cairns
Legal Jambalaya
Stephen M Sheppard
5 Blackstone and the Birth of Quebec's Distinct Legal Culture 1765–1867
Michel Morin
6 Blackstone's Ghost: Law and Legal Education in North Carolina
John V Orth
7 Antipodean Blackstone 
Wilfrid Prest

III LAW AND POLITICS
8 Blackstone's King
Paul D Halliday
Modern Blackstone: the King's Two Bodies, the Supreme Court and the President
Ruth Paley
9 Blackstone's Commentaries and the Origins of Modern Constitutionalism
Horst Dippel
10 Reading Blackstone in the Twenty-First Century and theTwenty-First Century through Blackstone
Jessie Allen

You can read more about the book here.

Hutchinson on "great cases" and their stories

Allan C. Hutchinson, Osgoode Hall Law School, York University published Is Killing People Right? More Great Cases that Shaped the Legal World with Cambridge University Press in 2016. From the publisher:

"Great cases" are those judicial decisions around which the common law pivots. In a sequel to the instant classic Is Eating People Wrong?, this book presents eight new great cases from the United Kingdom, the United States and Australia. Written in a highly accessible yet rigorous style, it explores the social circumstances, institutions (lawyers, judges and courts) and ordinary people whose stories shaped the law. Across the courts' diverse and uncoordinated attempts to adapt to changing conditions and shifting demands, it shows the law as the living, breathing and down-the-street experience it really is. Including seminal cases in end of life, abortion and equal rights, this is an ideal introduction for students to legal history and jurisprudence.

Here's the Table of Contents:

1. Introduction: on the road (again)

2. Is killing people right? Law and the end of life

3. Oil on troubled waters: the consequences of civil liability

4. The politics of law: cats, pigeons and old chestnuts

5. The companies we keep: the moralities of business

6. Fifty shades of Brown: consent and the criminal law

7. Putting up a defence: sex, murder and videotapes

8. Wade-ing into controversy: a case of accidental activism

9. Playing a different tune: fairness in deal-making

10. Conclusion: surfing the tides.

Further information is available here.