Justin Simard, a law professor and legal historian at Michigan State University — Henderson’s alma mater — has been fighting bias with an unlikely weapon: footnotes. Director of the Citing Slavery Project, Simard is building a database of cases involving enslaved people and modern cases that cite them as a precedent. He even got the editors of the Bluebook — the legal profession’s arcane but rigorously adhered-to citation bible — to change its rules in its 2021 edition, requiring cases involving slavery to be identified.
Simard got the idea for the rule change when he saw a pre-Civil War case related to slavery cited as precedent in 2012. He started looking for other examples from the past 30 years, thinking he’d find one or two. Instead, he found more than 300.
Simard was disturbed. For a case involving an enslaved person to be good precedent in, say, a property matter, “you have to continue to treat that person as property,” he told me. The new Bluebook citation rule shines a light on this practice, forcing lawyers in search of precedent to find some not entangled with the reprehensible human trafficking that has riven the Western Hemisphere since 1619. Alternatively, these lawyers must own the fact that their legal theories find support in historical suffering.
“This forces judges and lawyers to confront the fact that they’re relying on slavery,” Simard said. “Is that the best support for their proposition?”
Rule 10.7.1(d) is unlikely to inspire a national racial reckoning — it demands, quite literally, parenthetical change. As the Bluebook’s website explains, enslaved parties are now noted as exactly that: “(enslaved party).” And, the rule states, those cases “involving an enslaved person as the subject of a property or other legal dispute but not named as a party” are noted as “(enslaved person at issue).”
These parentheticals are indeed a modest change in legal citation overall and would be overlooked by those without a bar exam in their past or future. They appear amid the tangle of other information routinely included in case citations: party names, case year, and the volume number and page number of the case collection, or “reporter,” where the case can be found.
In the Bluebook’s new edition, “Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857)” — the infamous case that denied U.S. citizenship to a Black man held captive in Missouri — becomes “Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) (enslaved party).” Another example of the change: “Wall v. Wall, 30 Miss. 91 (1855),” which saw a man’s widow and his brother fight over who would inherit the people he enslaved, becomes “Wall v. Wall, 30 Miss. 91 (1855) (enslaved person at issue).”