Professor Justin Simard Writes In on The Importance of Citing Slavery
Professor Justin Simard of Michigan State University has graciously provided this response to our previous post about slavery and the Bluebook:
The Importance of Citing Slavery
Why the addition of a rule acknowledging the context of slave cases to The Bluebook will improve legal writing.
In my recent article Citing Slavery, 72 Stan. L. Rev. 79 (2020), I recommended that The Bluebook require that citations of cases involving slaves include an explanatory parenthetical acknowledging their context. Will Baude and Stephen Sachs have argued here that the rule is legally misleading, morally misguided, and unscholarly. Josh Blackman has made similar arguments. They have graciously allowed me to respond.
Let’s start with an example. In Garrett v. Burris, 735 S.E.2d 414 (N.C. Ct. App. 2012), the North Carolina Court of Appeals held that common law marriage did not exist in North Carolina. The court relied in part on State v. Samuel, 19 N.C. 77 (1836), in which the court held that “the incapacity of a slave to enter into . . . contracts” meant that common law marriage could not exist. That reasoning was abrogated by the Thirteenth Amendment, but the Garrett court did not acknowledge the abrogation.
And indeed, the Bluebook rule requiring the acknowledgment of negative treatment would not have required the Garrett court to note the abrogation. That’s because only the reasoning, and not the holding itself, was abrogated. Indeed, as Baude and Sachs point out, “[t]he Bank of the United States no longer exists, but M’Culloch v. Maryland hasn’t been ‘subsequently abrogated by statute.'” Baude and Sachs are right that the existence of the Bank of the United States is unimportant to the federalism principles in M’Culloch, but the analogy is faulty: slavery was critical to the holding in Garrett. It’s legally misleading not to mention the slave context of Garrett.
Of course, some other citations to slave cases are less egregious than Garrett, and Baude and Sachs are undoubtedly correct that “[p]ointing out a judge’s flawed reasoning or distinguishing a case from its applications are the task of good lawyers and scholars.” But this argument works just as well for other explanatory phrases and weight of authority statements in
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