Thursday, February 26, 2015

VanderVelde on Mrs. Dred Scott and Lumley v. Wagner

Lea S. VanderVelde, University of Iowa College of Law, has posted two items from her backlist.  The first, written with Sandhya Subramanian is Mrs. Dred Scott, which was appeared in the Yale Law Journal 106 (1997): 1033:
This article argues that Harriet Robinson Scott's significance as co-plaintiff in Dred Scott v. Sanford has been overlooked for generations in part because her status was a contradiction. Recognizing her existence, however explains the incongruities that this particular case represents if one focuses only on the factual record about her husband, and the motivations implied from that record.

Harriet was the wife of a slave. Analytically, Harriet's existence as doubly subordinated through the institution of marriage and the institution of slavery, demonstrates the paradox of married and enslaved women. Marriage was conventionally seen to be legally inconsistent with the status of slavery. A wife would be a dependent, and a slave could have no dependents. This double subordination explains why she is so little known and why the case litigated under her husband's name.

The article is compensatory legal history, both in adding into the equation a long neglected party, and in by her addition, providing rationale for the sustained lawsuit. This article sheds light on the motives behind the Scott's suit for freedom and addresses questions that have long plagued scholars such as why Dred didn't sue sooner or escape to free territory. Harriet was in all likelihood the cornerstone of the litigation.

This article offers a reassessment of the Dred Scott decision. Lea VanderVelde followed this article with a full scale biography of Harriet in the book, Mrs. Dred Scott: A Life on Slavery’s Frontier (Oxford 2009). This article is completely distinct from the book.
The second is The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, which appeared in the Yale Law Journal 101 (1992): (1992):
The English case Lumley v. Wagner is part of the canon of contract law. The case maintains that although employees cannot be specifically ordered to perform on a contract, they may be enjoined from working for a competitor.
This article demonstrates how hostile the Lumley rule was to the American ethos of free labor when it was first introduced in the United States in the mid-nineteenth century. However, the Lumley rule was ultimately accepted into American Law, and indeed into the canon, through a curious pathway. This rule became incorporated in the American common law through a series of cases all of which involved women who performed on stage. Only after application in a series of cases enjoining women performers did the rule gain a foothold in American common law. This injunction was legally acceptable in cases involving women because it was consonant with a rule applied against women in divorces, that is, they could sever the marriage but they were not permitted to remarry. This was also socially acceptable because the social position of women stage performers was seen as lacking the propriety expected of women by Victorian standards of morality.
Thus, a rule that was counter to the American ethos of free labor came into the canon, and came to be applied to men, only after it had been applied against women. By the time that American treatises reported the rule, the gendered identity of every previous application was overlooked.