Who Is Citing Slavery?

[Update: I expanded on this post in an article for the North Carolina Law Review Forum. If you want to read more, you can find it here: David J.S. Ziff, Citation, Slavery, and the Law as Choice: Thoughts on Bluebook Rule 10.7.1(d), 101 N.C. L. Rev. F. 72 (2023).]

The most-recent version of The Bluebook includes a new rule, Rule 10.7.1(d). Generally, Rule 10.7.1 deals with when and how to cite an opinion’s prior and subsequent history, like if an opinion affirms a previous opinion or is later reversed by a subsequent opinion. Stuff like that.

Rule 10.7.1(d) addresses something different. It provides a rule for indicating when an opinion involves slavery, either with an enslaved person as a party or as the subject of a legal dispute. Here is the rule in full:

(d) Slave Cases. For cases involving an enslaved person as a party, use the parenthetical “(enslaved party).” For cases involving an enslaved person as the subject of a property or other legal dispute but not named as a party to the suit, use the parenthetical “(enslaved person at issue).” For other cases involving enslaved persons, use an adequately-descriptive parenthetical.

As an example, The Bluebook provides Dred Scott:

Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.

This rule comes directly from a proposal offered by Professor Justin Simard in his article Citing Slavery, published by the Stanford Law Review in 2020. Here is Prof. Simard’s proposal:

Second, The Bluebook should require an additional signal, such as an “(enslaved party)” parenthetical, in citations to slave cases. The additional rule could be added as part (e) to section 10.7.1, which governs “Explanatory Phrases and Weight of Authority.” Such a requirement would prevent litigators from intentionally or accidentally obscuring a case’s origin in slavery. Requiring such acknowledgement in citation would provide transparency to the public but not limit the power of judges and lawyers to cite these cases. Federal and state courts could promote a similar process by passing local rules that require the flagging of slave cases.

Prof. Simard’s entire piece is worth reading if you’re interested in how courts should (and do) treat slavery-related precedents. And I want to stress that this Bluebook-specific suggestion is just one of Professor Simard’s proposals. It is not the focus of the piece. And he specifically addresses the need to avoid “canceling” individual judges or entire swaths of case law. He doesn’t propose ending the citation of slave cases. Rather, he views the parenthetical as a prompt for courts to examine their use of these cases, perhaps incentivizing courts either to justify continued use or, alternatively, to use different precedent.

But anyway, that’s Prof. Simard’s article. I’m just here to talk about The Bluebook.

It shouldn’t be surprising that this new parenthetical generated some pushback. Over at the Volokh Conspiracy, Professors Will Baude and Stephen Sachs described the rule as “wrong,” “legally misleading, morally misguided, and inconsistent with the goals of good scholarship.” Yikes! They invited Prof. Simard to respond, which he did here. If you’re interested in this debate, you should read their back-and-forth. And then the whole issue got a write-up in the Washington Post.

My goal here isn’t to summarize the debate or thoroughly analyze the arguments. (You can read the articles for that!) Instead, I want to raise a few points that I think have gotten lost in the discussion and that, I hope, will help clarify the debate. 

Importantly, I come at this issue as someone who has thought about and written about citation practices. I’m not a scholar of slavery or a scholar of legal history. Nor am I a scholar of constitutional law who cites a bunch of early-1800s opinions. (Heck, I’m just an Associate Teaching Professor with no tenure or publishing obligations, so maybe I’m not any kind of scholar of anything.) I say all that because I want to acknowledge that my perspective, and therefore my value-added here, is going to be very limited.

And I’m going to start, not surprisingly, with The Bluebook itself. I like The Bluebook. I like it, in part, because it helps large teams of student journal editors consistently and (dare I say) efficiently format citations in the footnotes of legal scholarship. As I’ve argued elsewhere, at nauseating length, complex uniform rules are often helpful when large groups of people need to perform the same task over and over and over again. That’s why the bulk of The Bluebook’s rules—located in the lengthy “Whitepages”—are preposterously specific and punctilious. They are designed for journal editors reviewing thousands of footnotes containing tens of thousands of sources.

Those rules don’t make any sense for practicing lawyers. Lawyers don’t have a staff of forty student editors. Lawyers don’t publish volumes of material with various authors. Instead, lawyers file briefs one at a time. Though consistency within a single filing might be important to a lawyer, they don’t need one uniform system for all filings over a year. 

The Bluebook recognizes this reality by including a set of separate, shorter, simpler, and more flexible rules for practitioners: The Bluepages. Where the Whitepages are filled with specific rules for journal editors, the Bluepages are focused more on guidelines or examples. And the Bluepages have fewer rules. If there’s a gap in the Bluepages, a lawyer could look to the specific Whitepages rule. Or they could just do whatever looks right in the moment without thinking about it too much. Nobody cares.

Ugh. That was boring. But here’s why I think it’s all important: My main quibble with Rule 10.7.1(d) is that it’s in the Whitepages. In other words, the parenthetical has been added as a rule for journal editors and scholarly articles. It is not a Bluepages rule, which would apply to practitioners and judges and courts.

That distinction explains some of the disconnect between Prof. Simard’s proposal and Profs. Baude and Sachs’s response. The response attacks the rule from the perspective of scholars writing law review articles. A quick read of Prof. Simard’s article, however, reveals that his analysis of slave cases has almost nothing to say about legal scholarship. Instead, the argument focuses on how courts and lawyers rely on slave cases, what that reliance says about our justice system, and how acknowledgement of the courts’ complicity in the atrocity of slavery might constitute a small step toward atoning for that complicity. 

These arguments have lesser relevance to a law professor writing academically about the history of appellate writs, for example. Indeed, Prof. Simard’s piece does not mention law professors or law review articles or law journals, not even once, in his discussion of slave cases. Prof. Simard writes, instead, with a focus on courts, arguing that “[e]xposing the practice of the citation of slave cases will allow judges and court systems to acknowledge and begin to atone for their past acts.”

Compare Prof. Simard’s focus on courts and atonement with Profs. Baude and Sachs on the general practice of citing cases involving underlying horrors: “[O]nce we recognize how many evils the law addresses, it’s no longer plausible to claim that citing these cases unflagged reflects any indifference to their moral contents. Citing the appellate-jurisdiction holding of Wiscart doesn’t show indifference to slavery, any more than citing the required-party holding of Republic of Philippines v. Pimentel shows indifference to the crimes of the dictator Ferdinand Marcos.”

Here, Profs. Baude and Sachs are talking about the abstract practice of citing a case. They are, of course, correct that legal precedent and citation always involve some level of abstraction, as we draw general principles from specific prior applications. But the “abstraction” of citation depends on the context and the entity doing the citing. A citation from a professor writing about habeas in the Columbia Law Review is very different from a citation in a formal opinion issued by the Supreme Court of North Carolina. The random professor is just one person. He didn’t author that 1800s-era opinion. And he likely has no individual need to atone for the legal system’s complicity in the past horrors of slavery. He truly can cite a case as a pure abstraction. 

But a lawyer citing a case in a motion is a different matter. A citation in a legal filing is an invitation to the exercise of state power. And a citation in a court’s opinion is a justification for the exercise of that power. The court’s power is decidedly not abstract. Though judges change and doctrines change over time, the court and the state itself are continuing entities. When a judge cites an opinion as precedent, he is making a statement: The state took an action at one time in the past. The court system honors that judgment. And because of the court’s judgment in that previous case, we are going to rely on that opinion to take a similar action here, against you, in this case. When that previous action is tainted by the stain of slavery, its use and endorsement by a later court carries a much different message than an abstract mention in the footnotes of a law journal.

That is why, I think, Prof. Simard’s proposal carries a much stronger moral weight when applied to lawyers and courts. Yes, they deal in abstractions. But they use those abstractions to call down state power. And Prof. Simard’s proposal serves as an information forcing mechanism, a nudge perhaps, to think about the use of slavery-related precedents. Maybe the court or the lawyers should reconsider relying on that precedent. Or, if they do rely on it, maybe they should explain why the precedent’s connection to slavery does not weaken its force, legally or morally, in today’s courts under today’s law.

The Wiscart and Pimentel examples illustrate another important distinction between many of the slave cases discussed by Prof. Simard and cases that involve other evils. As a matter of abstract legal principles, Profs. Baude and Sachs are correct. One can cite to either opinion without expressing an indifference to or approval of the underlying horrors. The opinions can be treated similarly in that respect. And that similarity may be sufficient for academics. 

From the courts’ perspective, however, the idea of “indifference” is quite distinct in the two examples. Reading Wiscart, I had to triple check for any reference to slavery. There’s one mention, as an aside. Like I said, I’m no constitutional law scholar or legal historian, but that seemed like indifference to me, at least by the original court in the original opinion.

Compare that passing mention with the various courts’ treatment of the underlying facts in Pimentel. The Supreme Court specifically notes that the case arises from Marcos’s actions: 

Alleged crimes and misfeasance by Marcos during his presidency became the subject of worldwide attention and protest. A class action by and on behalf of some 9,539 of his human rights victims was filed against Marcos and his estate, among others. The class action was tried in the United States District Court for the District of Hawaii and resulted in a nearly $2 billion judgment for the class.” 

The Court then cites the underlying court of appeals case, which states: 

This case arises from human-rights abuses—specifically, torture, summary execution, and ‘disappearance’—committed by the Philippine military and paramilitary forces under the command of Ferdinand E. Marcos during his nearly 14-year rule of the Philippines. The details of Marcos’ regime and the human-rights abuses have been set forth by the district court at 910 F. Supp. 1460, 1462–63 (D.Haw.1995).

Hilao v. Est. of Marcos, 103 F.3d 767, 771 (9th Cir. 1996).

One difference between these two cases is that, as Prof. Simard explains, the Thirteenth Amendment was not passed to remedy the human rights abuses discussed in Pimentel. And that’s certainly true. But I think Prof. Simard’s article provides an even stronger distinction.

The courts’ treatment of the abuses in Pimentel was never glossed over or tacitly accepted as normal or acceptable. Rather, the courts themselves recognized the horrors and acknowledged them in real time, as part of the various opinions. And the courts themselves were not implicated in those horrors.

Things are quite different for many slave cases. Prof. Simard’s article describes how many courts continue to cite slave cases without that sort of acknowledgement, either in the original case or in the subsequent citation. It’s that nonchalance that his article combats, and it’s a nonchalance that, to my read, is not present in Pimentel. I think a future court, citing Pimentel, would have less of a moral imperative to distance itself from the underlying evils of the case. The same cannot be said for the many slave cases Prof. Simard discusses in his article.

In the world of courts and lawyers, therefore, I think Rule 10.7.1(d) makes a lot of sense. But what does it mean for law professors? Not much. For example, here is an excerpt from a 2015 article from Professor Samuel Bray, published in the Vanderbilt Law Review, in which Prof. Bray relies on Wiscart:

More decisively, equitable has long been a technical legal term. It remains routinely used by Congress in newly passed statutes.[n76]  A good reason must be given before we assume that Congress has suddenly started to use a technical term in a nonstandard, lay sense.[n77]

Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997, 1012–13 (2015).

Obviously, Prof. Bray’s piece was published before the adoption of Rule 10.7.1(d). So here’s how his argument would read today, under the new rule:

More decisively, equitable has long been a technical legal term. It remains routinely used by Congress in newly passed statutes.[n76]  A good reason must be given before we assume that Congress has suddenly started to use a technical term in a nonstandard, lay sense.[n77]

There you go. The argument remains the same. For what it’s worth, here is what footnote 77 might look like under the new rule:

See Lorillard v. Pons, 434 U.S. 575, 583, 585 (1978) (treating “legal” as a term of art that should be given its established meaning unless a contrary meaning is compelled); see also Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2206 (2012) (recognizing that “quiet title” in a federal statute is a technical term); Wiscart v. Dauchy, 3 U.S. 321, 327 (1796) (Ellsworth, C.J.) (enslaved person at issue) (concluding that “Appeal” and “Writ of Error” are terms that “are to be understood, when used, according to their ordinary acceptation, unless something appears in the act itself to controul, modify, or change, the fixed and technical sense which they have previously borne”).

Not much to see there.

From reading Profs. Baude and Sachs, however, you’d think the new rule was an attack on legal scholarship or academic freedom. They argue that the parenthetical “manipulat[es] the content of . . . scholarship for ends other than truth-seeking” and thus constitutes “a breach of scholarly trust.” And they declare that “a mere style guide shouldn’t rule substantive arguments of law or morality out of bounds.” 

With apologies to Chief Justice Marshall, we must never forget that it is a citation guide we are expounding. I admit that I am not particularly worried about progressive law students canceling or silencing or out-of-bounds-ing legal arguments or citations using this rule. Perhaps if I wrote on the same subjects as Profs. Baude and Sachs, with more citations to 1800s-era cases, I would be more concerned. Or maybe they’ve experienced pushback from student editors. I don’t know. 

But I would counsel a “wait and see” approach. After all, Prof. Simard himself makes clear that he is not endorsing a policy of “stop citing cases with bad facts or written by judges who did bad things.” For all the reasons Profs. Baude and Sachs explain, I don’t see any reason why a law professor would be morally impugned for relying on a case with a slavery-related parenthetical. Prof. Simard’s article makes no such moral claim about law professors. I imagine law professors can (and will) keep on citing these cases for the reasons they’ve always cited them, parenthetical or not.

To the extent anyone cares about my views on the parenthetical [They don’t –ed.], I’m conflicted. On the one hand, I think the information-forcing dignitary effects of the parenthetical could have many benefits in the courts, for all the reasons Prof. Simard explains. I think it would be good for courts and lawyers to examine their reliance on slave cases. Putting The Bluebook aside, if a court were to adopt a requirement along the lines of Rule 10.7.1(d), I’d be all for it.

But on the other hand, I am generally against courts imposing Bluebook compliance on litigants. The Bluebook is a privately published citation guide. To the extent court rules require compliance with The Bluebook, they are mandating compliance with a paywalled, costly, private citation manual. I don’t think public institutions should do that. Moreover, to the extent a court is going to require Bluebook compliance, it should require compliance with the Bluepages—the shorter, simpler, and more practical rules designed for practitioners. A court rule that requires compliance with the Whitepages invites violation. Those rules are just preposterous as applied to lawyers. The Whitepages rules (for student journal editors!) should not be placed on equal footing with more important court rules, the violation of which should be met with punishment. Unfortunately, Rule 10.7.1(d) is in the Whitepages. 

Anyway, I am not sure if that clarified anything. But it seems to me that much of the disagreement stems from a disconnect between the theoretical foundation of the parenthetical and its adoption by The Bluebook. The underlying theory is anchored in court history and practice. It focuses directly on courts’ and lawyers’ role in the law of slavery and its continued influence on our legal system. And it calls on courts, as government actors, to take a more active role in acknowledging their role in the horrors of slavery. 

The practical adoption of the rule, however, applies primarily to law professors and law journals, not courts. I am not sure how much a parenthetical buried in the footnotes of a law review article will advance the public-focused and dignitary goals set out in Prof. Simard’s article. And I am skeptical that such a parenthetical would upset the scholarly freedom of folks like Profs. Baude and Sachs. So that’s my boring lukewarm take. Sorry. [Are you apologizing only for the lukewarm analysis, or also the length of the post? –ed. Maybe both, I guess.]