The cases involving enslaved persons often conflate traditional legal categories by treating individuals as property. This confusion can lead to these cases being misused by contemporary legal professionals. Recent scholarship has examined the ongoing reliance of courts on cases involving slavery, highlighting a failure to recognize their obsolescence and the frequent presence of racially prejudiced reasoning within these decisions.
The twenty-first edition of The Bluebook provides a new rule (R10.7.1(d)) in the Whitepages, without guidance or explanation, for citing cases involving enslaved persons.
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 examples, The Bluebook provides the following two illustrative citations from the Whitepages (including the proper citation to Dred Scott v. Sandford):
This rule follows a 2020 article in the Stanford Law Review by Professor Justin Simard, which discusses how courts continue to rely on cases involving enslaved persons without acknowledging their outdated status or the racist reasoning often used in these decisions. In Citing Slavery, Professor Simard details "the living law of slavery" (pp. 94-107) and provides cases where judges address the harms of citing slave cases (pp. 113-115).
In the referenced key articles, the authors start with the principle of utilizing precedent in legal arguments, which is rooted in the notion that a current case possesses substantial similarity to a previous case. Accordingly, such a case should be resolved in a similar manner. This principle retains its authoritative force irrespective of the personal agreement or disagreement of legal practitioners with the outcome of the prior case. Therefore, contemporary objections to the institution of slavery, no matter their strength, may not necessarily detract from the relevance of a case involving slavery as a legal precedent.
Professor Simard found that courts fail to address the underlying racism in many of these decisions and do not discuss the cases' slavery context in 80 percent of citations. The law still significantly relies on cases involving enslaved persons in various fields, including contracts, property, evidence, civil and criminal procedure, statutory interpretation, and torts. The recent scholarship highlights the ongoing use of "slave cases" by courts and legal professionals, where decisions involving enslaved individuals either as parties or as the subject property are cited in modern legal opinions, even though their rulings might have been invalidated by the Thirteenth or Fourteenth Amendments.
Thoroughly steeped legal traditions evolve slowly. Professor Simard suggests that the legal professional tends to favor the side of continuity" and issues a stern rebuke for the continued citation of cases involving enslaved persons (pp. 124-25).
Legal professionals, including judges, have a significant practical interest in the new Bluebook rule for citing cases involving enslaved persons. Implicitly, this rule encourages the reassessment of the ongoing use of such cases as precedential authority. While many courts call for practitioners to follow The Bluebook for citations, most jurisdictions are unclear on the Bluepages-Whitepages divide.
This distinction between Bluepages rules and Whitepages rules may seem insignificant, but it matters for properly citing cases involving enslaved persons. Importantly, The Bluebook rules require an academic writing or a law review article to note the slavery context of an authority. Notably, the rule for citing slavery is buried in a subsection of the section on "prior and subsequent history." A Whitepage rule may be used to supplement a corresponding Bluepage rule. However, because the Bluepages specifically provide a guide for the citation needs of legal professionals, the afore-referenced subsection in the Whitepages may be easily overlooked. Ultimately, a judge or an attorney relying on a case involving slavery in real litigation, affecting real parties, and involving a judgment of the state that carries the force of law would not be obligated to provide such information.
In Citation, Slavery, and the Law as Choice, Professor Ziff asserts that Rule 10.7.1 (d) is misplaced in the Whitepages. The editors of The Bluebook apparently rejected this focus and placed the rule in a section not applicable to judges, attorneys, or other practitioners—the very targets of Professor Simard's article. Professor Ziff advocates that courts adopt Rule 10.7.1(d) independently as part of relevant courts' local rules.
Professor Simard initiated the Citing Slavery Project to uncover the impact of slavery law in American law and to make that research accessible to others. The project offers a database of more than 3,000 historical slave cases and their continued citation in modern cases as precedent. The project reflects that American entities, from corporations to educational institutions, are acknowledging and dealing with the lasting impact of slavery. Importantly, the project contends that it is essential for the legal profession to thoroughly examine its historical ties to this abhorrent period of American history and take necessary steps to make reparations.