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Fighting racial bias with an unlikely weapon: Footnotes

(Jonell Joshua/For The Washington Post)
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When Harold Henderson, a 79-year-old retired labor lawyer, was a teenager visiting his grandfather’s farm in Albemarle County, Va., his grandfather showed him a rock. It was a large rock — more like a boulder. While standing on this rock, Henderson’s grandfather said, your great-grandfather was sold as a slave at the age of 12.

Decades later, after poring over census and property records, Henderson’s sisters went looking for the rock. Driving around the area where they expected the rock would be, they instead found a man working at a construction site. The man knew nothing about the history of the land, but he knew about the rock — he had broken it up to make space for a garage and thrown the debris in bushes nearby. Henderson’s sisters went looking in the bushes. The rock, in pieces, was there. Now, a three-pound chunk of it sits in Henderson’s office. To him it’s a symbol and a stark reminder that the justice system in which Henderson built a career — as general counsel for Amtrak and as head of labor relations for the National Football League — is built on a corrupt foundation.

What concerns him is the citation of legal precedents dating to slavery. “It bothers me not so much specifically as a Black person, but as a lawyer,” he said. “The precedent that stands today — there’s still prejudice, bias and misconception that tended to shape the law.”

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).”

As small as this change seems, it has critics. Ahead of the rule’s adoption last year, University of Chicago law professor Will Baude wrote in Reason magazine that it was “legally misleading, morally misguided” and “unscholarly.” In an interview, Baude said slavery was a “moral horror” but a blanket rule wasn’t nuanced enough to address its legacy. Some decisions, such as Dred Scott, are so caught up in the Supreme Court’s struggle with slavery that they wouldn’t be blithely cited without direct reference to their historical meaning, he argued.

However the legal profession handles the issue, Baude said the remedy is not “tossing in some parentheticals.” Indeed, phrases in parentheses may help normalize a historical wrong that should never be normalized. “I’d hope when we’re reading something, and suddenly the word ‘slavery’ is there, it raises our eyebrows,” he told me. “If we get used to seeing ‘slavery yada, yada, yada’ every time … that’s a harm.”

Those behind the Bluebook — compiled by student editors at Harvard, Yale, Columbia, and University of Pennsylvania law schools — aren’t talking about Rule 10.7.1(d). The style guide’s current and most recent former editor declined to comment.

Julie Graves Krishnaswami, Yale Law School’s head of research instruction, dismissed criticism of the rule as “opinions from outliers.” The Bluebook is edited by elites behind closed doors, she said, then sold to every law student in the country for profit. The product often lags behind technology and popular practice — as when female scholars fought for a rule change in the early 1990s to include their first names in citations, ending “rigid depersonalization and a sort of patriarchal system.” Though often confined to the margins of law review articles, names matter, Krishnaswami said.

“Authority is important,” she said. “Naming in citation is linked to how a discourse is shaped, how a field is shaped, and how one was placed in the hierarchy.”

Henderson said he hadn’t touched a Bluebook in 30 years. However, he was eager to work with scholars at Michigan State and at the University of Virginia, where researchers found three of his enslaved ancestors were forced to build the college, to learn more about how enslaved people built the country.

“Knowledge is empowering,” Henderson said. “If we get researchers working — if we get academics pressing the issue and following up on it, giving input and guidance — the next generation will be much better informed.”

Justin Wm. Moyer is a Washington Post staff writer.

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