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), https://digitalcommons.law.uw.edu/faculty-articles/930
Slavery, Legal Writing, Precedent, Citation, Bluebook
Today, more than 150 years after the end of the Civil War, lawyers and judges continue to rely on antebellum decisions that tacitly or expressly approve of slavery. This reliance often occurs without any acknowledgement of the precedent’s immoral and legally dubious provenance. Modern use of these so-called “slave cases” was the subject of Professor Justin Simard’s 2020 article, Citing Slavery. In response to Professor Simard’s article, the latest edition of The Bluebook includes Rule 10.7.1(d), which requires authors to indicate parenthetically when a decision involves an enslaved person as a party or the property at issue. Unfortunately, Rule 10.7.1(d) applies only to academic writing—journal articles authored by law professors and students. It therefore does not address the moral and dignitary harms that result from courts’ and lawyers’ use of slave cases to invoke the legal force of the state. Courts themselves, therefore, must decide whether to require a parenthetical for slave cases. As it should be. Courts, not a student-written style guide, are responsible for addressing the judiciary’s connection to slavery. That responsibility counsels in favor of adopting Rule 10.7.1(d) as a tool to prompt lawyers and judges to carefully consider—and perhaps forgo—continued reliance on slave cases.