The National Archives has announced the Beta Release of 119,000 searchable documents consisting of correspondence and other writings of six Founding Fathers. The project, made available through a cooperative agreement with the University of Virginia Press, will enable users to read and search through thousands of records from George Washington, Benjamin Franklin, Alexander Hamilton, John Adams, Thomas Jefferson, and James Madison.
One of the fantastic benefits of the Internet is that so many cases and codes are available online for free. Here are some links for you to bookmark. Why so many that overlap? They differ in coverage, ease of use, ease of searching, formatting, and so on. As you try each, you will get to know what works best for you.
One [huge] caveat: Shephardizing (or the ability to Keycite) is NOT available for free on the Web. And we can extend this warning: there are new developments in laws that can’t even be found by Shephardizing. For example, sometimes states pass laws that vitiate previously existing statutory or case law, but do not refer to the statutes or cases they are repealing. It helps to do a news search on the subject matter just to make sure!
Cornell Legal Institute is a portal for just about everything you could want, including cases, statutes, U.C.C., C.F.R., Table of Popular Names (especially helpful when checking newspapers and other resources for changes in laws!) and so on. I prefer it because of its great formatting and ease of use.
Google Scholar’s court opinion coverage is limited to state appellate and supreme courts from 1950; federal district, appellate, tax and bankruptcy courts from 1923; and the U.S. Supreme Court from 1791. In a useful feature, cases are sorted by the extent to which they have been discussed in citations. See Google’s explanation here.
Also, Google Books contains many compendia of case law, some of which contain scanned transcripts of old cases you can’t find anywhere else. If you search for the specific case in Google Books, you can often flush out the relevant compendium and access the case.
Library of Congress “Thomas” Database for Statutes and Bills
Electronic Code of Federal Regulations (unofficial editorial compilation of CFR material and Federal Register amendments kept very current)
Includes proposed regulations
Updates for state statutes
Hot legal issue links
List of links of where to find them
Statutes at Large
Oh, you know you don’t want to root through all of that yourself! Get some help! Here is a link to free legislative histories on the Web!
Special Focus: Native American Law
The Meaning of It All
Finally, when nothing else will do, the whole (free) Blackstone’s Commentaries, here.
Upholding the Law: Is it the Attorney General’s Job to Help Argue for Laws that are Not Inherently Moral, and How Is The Line Drawn?
On April 20, 2013 we attended a panel discussion about the impact of Edward Levi on the office of United States Attorney General. (Edward Levi was the 71st Attorney General, serving from 1975 to 1977. He was recruited from the University of Chicago by President Gerald Ford to bring transparency, independence and integrity back to the Justice Department after the debacle of Watergate.) The evening began with formal remarks by the current (and 82nd) U.S. Attorney General Eric Holder. These were followed by a discussion moderated by Geoffrey Stone and featuring the former (79th) Attorney General John Ashcroft, as well as Jack Fuller, the Pulitzer Prize winning journalist who served as a Special Assistant to Levi and is now the editor of a new collection of his speeches (Restoring Justice: The Speeches of Attorney General Edward Levi, University of Chicago Press, 2013).
The event quickly became politicized however, beginning with the somewhat-of-a-stump speech by AG Holder, who did, however, manage to deliver a wonderful paean to Levi. Perhaps Holder’s most controversial remark came when listing the Obama Administration Justice Department achievements, among which he included the decision not to support the Defense of Marriage Act before the Supreme Court. (The Defense of Marriage Act, known as DOMA, which passed by overwhelming margins in both houses of Congress in 1996 and was signed by President Bill Clinton, bars federal agencies from recognizing the validity of same-sex marriages in the states where they are legal.)
After the panel session ended, some audience members stayed behind to continue the discussion. A number expressed outrage that Holder would not uphold the laws he was sworn to uphold (such as DOMA) in his capacity as the nation’s top lawyer. The dialogue then segued into a debate over the importance of the Rule of Law vis-à-vis laws that appear, at least to some people, to be patently unjust. Historically, these tend to have been laws that have facilitated, enabled, or encouraged discrimination against discrete minorities, such as Jim Crow laws, and even the Dred Scott decision by the Supreme Court. The “Rule-of-Law Camp” opined that, if we all were free to act upon our own preferences or even consciences, there would be no “law” nor even any point for a body of law.
However, strong counterarguments were profferred as well. First of all there is the notion that one can in fact reference an inherent concept of morality or justice that is the basis for all systems of duty and obligation. As John Rawls famously wrote in A Theory of Justice:
Each person possesses an inviolability founded on justice that event the welfare of society as a whole cannot override. Therefore in a just society the rights secured by justice are not subject to political bargaining or to the calculus of social interests.”
And yes, Lincoln famously maintained that he would defend the Fugitive Slave Acts because they were the law of the land, but he made every effort, both above and below the table, as it were, to make sure those Acts were struck down or nullified in practice. Similarly, he averred that he could not free the slaves because the Constitution seemed to recognize slaveholders’ property rights in their slaves, and the 5th amendment guaranteed those rights could not be abridged without due process of law. But he used his knowledge of the intricacies of the law, his courage, his faith in morality, and his audacity to find a way around that barrier as well.
Other controversies enlivened the proceedings. It was clear during the Q&A session that the presence of AG Ashcroft was seen as an opportunity to assail the policies of the Bush Administration – particularly regarding Guantanamo. Ashcroft, clearly affected, took up the challenge in the little time he could. In addition to the specific defenses he made, he emphasized several times that if the public has a problem with the President and/or the Administration, they have a remedy every four years.
As for the Rule of Law argument, our own view is that we should endeavor to remember that as much merit as there is in adhering to “the Rule of Law,” one mustn’t reify that concept to the extent that it escapes all context. Specific interests from political, economic, religious, and/or class perspectives and values go into the formulation of laws, and these interests can bias social, political, and/or economic outcomes, no matter how “facially neutral” the law may appear or how “non-intentional” any invidiously harmful consequences. In the case of DOMA, the discriminatory effect of the law is not even obscured. Moreover, as Eric Posner observes in “How the Law Should Deal with Dzhokhar Tsarnaev” (posted on Slate.com April 22, 2013), “…criminal procedural rights [and other laws and precedents] [are] cobbled together over decades by fallible judges, who [are] responding to the needs of the time.”
Should constitutional or congressional evil be upheld? As Sanford Levinson wrote, “…one person’s notion of justice is often perceived as manifest injustice by someone else…” (Constitutional Faith, Princeton University Press, 1989). But that doesn’t mean that on occasion there really is a clear demarcation between the just and the unjust! A mechanistic view of the legal system only enables responsibility for results to be externalized, and for responsibility for the ensuing harm to be evaded. As the constitutional scholar Charles Black proposed, let us use the right not to be discriminated against as a fundamental yardstick. Let us reach beyond institutionalized phrases and blind obeisance to “rules” when those rules may require us to hurt others. Let us once again take up the mantle of the Declaration of Independence, and make a commitment to help everyone in society pursue their own vision of happiness, as long as it doesn’t harm anyone else.
But you can draw your own conclusions! The University of Chicago has provided a video recording of the entire event, which is well worth your time, and may inspire you to “join the conversation” (paraphrasing Reverend Al Sharpton every night on MSNBC).
Out of Order, by Sandra Day O’Connor, the first female justice of the Supreme Court of the United States, is an eclectic, somewhat uneven, collection of anecdotes.
At its best, the book features some incisive analyses of major constitutional cases. The author clearly has mastered her craft when it comes to explicating abstruse legal issues. An early chapter covers the history and development of the power relationship between the Court and the President with terse analyses of four seminal cases, from Marbury vs. Madison to Youngstown Sheet & Tube (the steel seizure case). O’Connor shines whenever she states the holding of an important case.
But the book is not pure history or pure law. It is anecdotal without an overriding sense of organization. It jumps from topic to topic, and not all the topics are particularly interesting. For example, it contains an entire chapter devoted to the various oaths (including full quotations of the oaths), judicial and patriotic, that justices take and have taken.
Nevertheless, it contains some interesting factoids about the current and previous Courts, such as: (1) written opinions were not required until 1834, during President Andrew Jackson’s administration; (2) the current Chief Justice, John Roberts, was the best oral arguer Justice O’Connor encountered in 25 years on the bench; (3) Justice Antony Scalia produces more laughter (by far) than any other justice; and (4) Justice Byron (“Whizzer”) White led the National Football League in rushing while attending law school. (He played with the NFL’s Pittsburgh Pirates (now the Steelers) during the 1938 season.)
The book also contains interesting descriptions of the tribulations of earlier justices, who had to “ride circuit,” (i.e., travel—usually by horseback– around the country and conduct trials) as part of their statutory duties. [Justice O’Connor doesn’t go into it, but many of the justices had to share not just rooms, as she notes, but even beds with other judges or attorneys. Abraham Lincoln got to be good friends with some of his “bedmates” from his (Eighth) circuit riding days!]
In addition, O’Connor’s draws some enlightening and engrossing portraits of earlier justices, in particular, James McReynolds and Oliver Wendell Holmes, Jr.
I listened to an audio version of the book rather than reading it. That may have made enduring the chapter on judicial oaths more tedious than it would have been in writing. The reader is Justice O’Connor herself. While that adds to the authenticity of the book, the Justice does not have an especially good speaking voice.
Because its organization is not linear, the book need not be read sequentially. Each chapter stands on its own, and can even be read – in a probable unintended play on title, out of order. Taken as a whole, it is a pleasant introduction to Supreme Court lore for those with no background in such matters. The Justice does not get into current controversial issues facing the Court.
For a more sophisticated collection of Supreme Court historical anecdotes, I would recommend The Nine, by Jeffrey Toobin, a large portion of which – ironically – focuses on the pivotal role of Sandra Day O’Connor in recent Court history (see our review, here.)
Note: I listened to the unabridged audio version published by Random house Audio, 2013, on 6 compact discs.
This interactive map of U.S. gun laws allows you to check out specific types of gun laws or all gun laws:
This interactive map enables you to compare gun fatalities with traffic fatalities for each state:
As “Mother Jones” reports, it’s not just homicides that are becoming more problematic, but suicides as well:
In the not-so-distant future, if current trends continue, more Americans will die from gun violence than from auto accidents, but the state of Utah is wrestling with the fact that it hit that grisly benchmark a few years ago. And it’s not “bad guys with guns” driving this trend; the vast majority of gun deaths in Utah for the past few years (89 percent in 2011; see chart) were people taking their own lives.”
This terrific interactive map fills you in on women’s legal rights in several dimensions. You can drag the slider at the top to select the year you want (with a range from 1892 to 20120.
You can mouse over a country to get a quick view of rights. And you can click on the country and get a new screen with a more detailed overview of rights with respect to healthcare, employment, and government service.
Review of “Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War” by Mark E. Neely Jr.
The subtitle of this book, “Constitutional Conflict in the American Civil War”, is much more descriptive of its content than its actual title. Only the first third of the book deals with Lincoln’s actions, and even then, much of the constitutional analysis applies to the writings of Lincoln’s contemporaries like Horace Binney, William Whiting, and Sidney George Fisher. In any event, the book’s focus is on the constitutional issues faced by not only the North, but also the issues faced by the Confederate States under their constitution.
The most important question faced by both the North and the South was whether the Southern states could constitutionally withdraw from the Union. Unfortunately, the Constitution itself had nothing to say on the matter. By contrast, even the “feeble” Articles of Confederation had claimed the Union was perpetual. In his inaugural address, Lincoln skirted the constitutional issue, and relied instead on a legal argument: if the Union was merely a contractual arrangement among the states, the South could not unilaterally rescind that contract by secession—it required the assent of the other parties to the contract. Lincoln also contended that the nation antedated the Constitution:
Having never been states, either in substance or in name, outside of the Union, whence this magical omnipotence of “state rights,” asserting a claim of power to lawfully destroy the Union itself?…The states have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has. The Union is older than any of the states, and, in fact, it created them as states.”
This claim had the advantage of adopting the Declaration of Independence, with its expression that all men were created equal, as a founding document. Famously, Lincoln solidified this vision at Gettysburg, declaring that the nation was created “four score and seven years ago” (the time of the Declaration of Independence) rather than “three score and sixteen years ago” (the time of the adoption of the Constitution).
Lincoln’s construction was not without precedent. In fact, the first Supreme Court Justice, James Wilson, wrote in Chisholm v. Georgia (2 US 419, 465, 1793):
Whoever considers, in a combined and comprehensive view, the general texture of the Constitution will be satisfied that the people of the United states intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in all its parts, with powers legislative, executive and judicial, and in all those powers extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national government?”
Lincoln also seemed savvy enough to be aware of the cultural negotiation of both history and memory, and that he could use his facility with words to reframe both of them.
Lincoln deliberately avoided subjecting the question of secession to any court rulings. Instead, the constitutionality of secession was to be decided in presidential speeches, spirited newspaper editorials, widely read pamphlets, and on the battlefield.
Lincoln did not trust the Supreme Court at that time. The Court was led by Chief Justice Roger B. Taney, the architect of the infamous Dred Scott decision, about which Lincoln had bruited powerful critiques. Lincoln wanted to avoid giving Taney the opportunity to turn the Court’s authority against him, because the constitutionality of other important issues loomed as well, such as the suspension of the writ of habeas corpus, the power to emancipate the slaves, and the power of the federal government to conscript members of the state militias. Taney had expended significant thought on some of these issues, and Neely says he was “itching to weigh in” on them. He never had the chance, however, because none of them ever reached the Supreme Court during the war.
During the Civil War, the writ of habeas corpus was used to attempt to free two groups of prisoners: (1) “political prisoners,” those jailed for inciting desertion by troops or otherwise “hurting the [Union] army” and (2) underage soldiers who changed their minds about serving in the army. Article I, section 9, clause 2 of the Constitution stated: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It does not, however, say who or which branch of government (e.g. Congress, the President, Courts) is authorized to do the suspending. Lincoln simply arrogated the power. In the process, he ignored the opinion of Chief Justice Taney in the Ex parte Merryman case, in which Taney opined that only Congress, not the President, could suspend the writ. [Note that Merryman was not an opinion of the full Supreme Court; rather it was simply a writ issued by Taney pursuant to the Court’s original jurisdiction in habeas corpus cases for federal prisoners.] Lincoln’s decision to ignore Taney’s opinion was never tested in court. It became moot at the end of the war.
Lincoln believed emancipation of the slaves was important for the war effort. However, the Constitution seemed to recognize slaveholders’ property rights in their slaves, and the 5th amendment guaranteed those rights could not be abridged without due process of law. Arguably, the war powers clause authorized the president to commandeer the property of the nation’s opponents, but that right was thought to be limited to actions necessary for victory or the safety of the soldiers. Lincoln could not prove that emancipation was necessary—only that it was useful. Nonetheless, the Proclamation was issued as soon as Lincoln thought it was politically feasible, and it was never challenged in court.
Interestingly, Lincoln feared that the racism of his own troops might render the Proclamation a disadvantage to the Union cause. In the event, the nationalism of the troops trumped (temporarily, at least) whatever racism was prevalent, and the Proclamation did not sow significant dissension in the ranks.
The Union’s power to confiscate Confederate ships pursuant to its blockade was the only major constitutional issue adjudicated by the Supreme Court during the war. Prize Cases of 1863 (67 U.S. (2 Black) 635) questioned whether Lincoln acted within his presidential power when he ordered the blockade of Southern ports in April of 1861, authorizing the seizure of vessels from which revenues could not be collected on account of the “insurrection.” The owners of merchant vessels affected by the blockade sued for the restoration of their property on the ground that blockades were only legal in wartime, but no war had been declared by Congress, as mandated by the Constitution. Lincoln himself refused to recognize the conflict as a “war” (with its implication of two sovereign nations in dispute) rather than a “rebellion” or “insurrection.” In a 5-4 decision, the Court held that the hecatomb taking place could not be ignored. It was just too massive. War may not have been formally declared, but the Court claimed to know a war when it saw one. In the words of Justice Robert C. Grier, “As a civil war is never publicly proclaimed eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know.”
Neely calls this decision “the most important Supreme Court decision of the Civil War.” Not only did the Court opine that the war could not be ignored as a fact, but it also disagreed on whether a civil war had to be publicly declared by Congress. James M. Carlisle, representing the ship-owners, insisted that “a war was something declared by Congress, period.” He averred:
The matter then comes back necessarily to the pure question of the power of the President under the Constitution. And this is, perhaps, the most extraordinary part of the argument for the United States. It is founded upon a figure of speech, which is repugnant to the genius of republican institutions, and above all, to our written Constitution.”
Richard Henry Dana, Jr., for the government, countered with the winning argument that war was “a state of things” and “not an act of legislative will.”
It’s a fascinating case, and still is relevant today. [For example, does the current confrontation with Al Qaeda trigger the president’s war powers?]
The Democrats also mounted an attack on the government’s war measures in state courts, where they expected a friendlier reaction than in federal courts. Their effort was unsuccessful, according to Neely, because the war ended before the cases could be resolved. He states, “[T]he nation was saved from violent confrontation with willful judges by the slowness with which the wheels of justice turned in the middle of the nineteenth century.”
More than 30% of the book is devoted to the issues faced by the Confederate states under their constitution. The Confederacy was formed by a process nearly identical to the process that formed the original United States. Each rebellious state held a “constitutional convention” that was outside of and in addition to its established state government. Neely asserts that the elections for the secession conventions were especially clean by the standard of the time, with a distinct absence of fraud or strong-arm tactics. The movement to secede, in Neely’s words, was “profoundly democratic.” [It might be suggested that because of the near unanimity of the sentiments of those attending the conventions, there was no need for fraud. However, fraud returned to southern elections in full flower after the war ended, especially with the prospect of freed black men and other republicans gaining political office.]
Although the Confederate constitution borrowed heavily from the federal constitution, each seceding state retained more autonomy under it than it had under the federal constitution—no surprise there. The government that resulted was not highly authoritarian, as one might expect from one led by slaveholders. Rather, it was very democratic in the sense the modern Israeli government is democratic: its constitution speaks of giving all its adult citizens equal rights [the Confederacy limited those rights to males], yet it blithely ignores the presence of a large minority who live within its jurisdiction, but who are accorded few if any rights.
The secession conventions produced constitutional crises of their own. Both the formerly legitimate state governments and the secession conventions continued to act, each ostensibly the sovereign power. Thus, every southern state had two separate governments claiming ultimate authority. Nevertheless, with the exception of South Carolina, the states resolved the problem pretty much without rancor and never with violence. Neely writes,
…some states simply enjoyed the fruits of the emergency actions of the conventions, including the democratization of war by ensuring that the men who fought for the slaveholding republic…could vote in [military] camp….Had the Confederacy prevailed…it would doubtless celebrate that period of government by secession conventions as the United States does today the 1787 Philadelphia constitutional convention.”
Neely raises interesting questions in comparing the Confederate and federal constitutions. For example, why did the Confederacy chose to emulate the federal form so closely? (The President even had a “white house” of his own.) He also notes that Jefferson Davis, like Lincoln, suspended the writ of habeas corpus, and even (near the end of the war) – out of desperation – considered arming at least some of the slaves.
Part of Davis’s problem was that the central government of the Confederacy was not as strong or centralized as that of the Union. Although there were Confederate national courts, there was no Supreme Court. The founders of the Confederacy were always troubled by their need to accommodate state rights with an expanded federal authority necessary to fight a war. Southern governors jealously guarded their state militias, and did not necessarily want them subject to conscription into the national army. The issue of conscription was tested in several state courts. Some lower courts found conscription illegal, but all the state supreme courts upheld its legality on appeal. Curiously, the Confederate national courts seem never to have organized a reporting system; thus their national courts never could exert their proper influence on state decisions.
Neely observes that the Confederacy faced issues remarkably similar to those faced by the United States in the War of 1812. There, the New England states opposed the use by the federal government of New England militias to launch an invasion of Canada.
He concludes by exhorting his fellow historians to begin a “series of titles, beginning with ‘Constitutional Problems under Madison’ and stretching through all of our wars until we have accumulated a shelf of volumes that reconsider the role of the Constitution in America’s wars.”
Evaluation: In only 349 pages, this book contains some very meaty legal analysis. Moreover, even though there is a paucity of case law during the relevant time period, the book also contains some very thoughtful constitutional analysis of issues faced by both the Union and the Confederacy. Interestingly, much of the contemporary analysis came from newspaper editorials and impressively trenchant political pamphlets. Neely’s scholarly prose is readable despite the density of his subject matter, and he avoids sounding too lawyerly. I highly recommend this book for anyone with a serious interest in our constitutional history.
Note: The author won the 1992 Pulitzer Prize for his book The Fate of Liberty: Abraham Lincoln and Civil Liberties. This book was awarded the Lincoln Group of New York Award of Achievement for 2011.
Published by The University of North Carolina Press, 2011
March 1 begins Women’s History Month. There are many resources on the web highlighting the history of women’s legal history. Just a small sample includes:
Has equal opportunity in the U.S. been achieved? Stats as of 2005
Article 1 Section 9 of the United States Constitution (1787) stipulated that the slave trade could not be interfered with for the next twenty years. Only beginning in January 1, 1808, could laws become effective to end it. It did not, however, require Congress to ban it.
Nevertheless in 1807 the United States took steps to end the international slave trade officially with the U.S. Slave Trade Act, specifying that, as of January 1, 1808 it would be illegal to import into the United States “negroes, mulattos, or persons of color” as slaves. However, if it turned out that Africans did reach the United States illegally, they could still be sold and enslaved. Moreover, the Act did nothing to prohibit slavery already in place.
[Even worse, the effort to end the slave trade - seemingly so progressive on its surface, created even more of a horror story for enslaved women. Now the only legal [sic] way owners had to increase their number of slaves was either by enforced “mating” of their slaves, or by enforced mating with their slaves. Not only were women of child-bearing age raped repeatedly, but infertile women were punished by being sold away from their families and friends. (Usually, buyers were unsuspecting, because they too would have wanted to use female slaves for forced reproduction. That this occurred frequently is attested to by the number of judicial cases brought by new owners for fraud in such circumstances.) (If you have the stomach, you can read more about the egregious practice of the rape of women slaves here. The link to download this scholarly study from the Washington & Lee University (Law School) Journal of Civil Rights and Social Justice is on the right-hand side.)]
So the slave trade and the increase of slaves already within the borders of the U.S. [read: rape of enslaved women helpless to resist] continued. Tougher laws against importation were enacted, but with small penalties and without much enforcement. In 1850, the South even tried to get international slave trading re-opened! They did not succeed, but illegal importation did increase between 1850 and 1860.
In 1860, the schooner Clotilda, carrying between 110 and 116 captives from Benin and Nigeria landed in Mobile, Alabama. The Clotilda is believed to have been the last slave ship to bring slaves to the United States. (Timothy Meaher, a Mobile businessman, sent the Clotilda to Africa on a bet that he could “bring a shipful of niggers right into Mobile Bay under the officers’ noses.” He of course won the bet.)
Arriving as a slave on that vessel was Cudjo Lewis from Benin. Lewis was one of 32 slaves who ended up on Meaher’s estate. Freed in 1865, he became a leader of a group of Clotilda veterans in Mobile. They started their own community they named African Town with the goal of preserving African traditions. Lewis outlived his fellow Clotilda companions, dying on July 26, 1935 at the estimated age of 94.
Up until World War II, African Town remained a rather distinct community in Mobile County. Now called AfricaTown, it is still home to the descendants of the men and women from the Clotilda. It was incorporated into the city of Mobile in 1948. As of December 2012, it was officially placed on the National Register of Historic Places by the National Parks Service.
The House Girl is yet another novel that juxtaposes a contemporary story with a linked plotline from the past. It is a tricky balancing act for the author to ensure that both stories are of equal interest.
Lina Sparrow is a first year litigation associate in a high-powered New York City law firm. Although 24 and attractive, she doesn’t have much of a personal life, since her law firm career demands so much of her time. She still lives with her father, Oscar, who is a well-known artist.
Josephine Bell, seventeen in 1852 and serving as a house slave in Lynnhurst, Virginia, is also an artist. Her master, Missus Lu, sometimes allows her to paint with her in her studio. Now that Missus is “feeling poorly,” she even asks Josephine to help complete her own paintings, because her hand has become too unsteady.
As the story opens, Lina’s “mentor partner” at Clifton & Harp, Daniel Oliphant III, pulls her into a big new case brought by a wealthy African American client, Ron Dresser. Dresser wants to sue for reparations on behalf of the ancestors of slaves, claiming that trillions of dollars in unpaid wages resulted in unjust enrichment for private companies benefiting from slave labor before the passage of the Thirteenth Amendment. Lina’s assignment is, per Dan, to “get ourselves a great lead plaintiff:
I want something stirring, a new angle, something compelling. And don’t forget photogenic – these people will be on TV, they’ll be in the papers, they’ll be giving interviews. We need some great people, Lina, some great stories.”
The lawsuit provides an excuse for Lina to read about (and share with us) the history of slave exploitation of labor.
Thanks to her artist dad, Lina discovers the slave Josephine as a potential source for a “colorful” angle, if only she can find a descendant. A series of very unlikely and improbable developments enable her to learn many details that not only advance her case, but also allow her to locate the perfect plaintiff. Everything gets wrapped up in the end, but not neatly, and even somewhat bizarrely.
Discussion: In many ways Josephine’s story is infinitely more interesting than Lina’s, but I don’t have a sense of how historically realistic Josephine’s story may have been, nor how authentic her voice seems. On the other hand, Lina’s account of life in a top-ranked, competitive law firm rings very true. I laughed out loud at Lina’s comparison of law firm time to casino time, and at the way she thought of everything she did in six-minute intervals.
But some of the coincidences and dei ex machina in the story strained credulity. And some of Lina’s actions seemed markedly inconsistent with her character portrayal. Most perplexing to me, however, was the lawsuit that formed the backbone of the story.
I was surprised, maybe astounded even, that the lawsuit for reparations for unjust enrichment was defined as having an end point of 1865. In fact, prior to 1865, slavery was legal. After 1865, on the other hand, slavery continued in the South by surreptitious means, and it is then that companies truly could be culpable for unjust enrichment.
[See, for example, the Pulitzer Prize winning book Slavery By Another Name by Douglas A. Blackmon who analyzes why blacks did not rise in American society after emancipation until the Civil Rights Movement of the 1960s. Using extensive documentation, he demonstrates that long past the time of the Civil War, slavery was actually still alive and well in the South in all but name, with active support of the state and federal governments.
Here’s how it worked:
"By 1900," Blackmon writes, "the South's judicial system had been wholly reconfigured to make one of its primary purposes the coercion of African Americans to comply with the social customs and labor demands of whites." Thousands of random indigent black men were arrested for anything from unemployment, to not being able to prove employment at any given moment, to changing employers without “permission”, or even loud talk. In other words, they were arrested for being young black men. They were sentenced to hard labor, and bought and sold by sheriffs and judges among other opportunists to corporations such as U.S. Steel, Tennessee Coal, railroads, lumber camps, and factories. The prisoners who were sent to mines were chained to their barracks at night, and required to work all day – “subject to the whip for failure to dig the requisite amount, at risk of physical torture for disobedience, and vulnerable to the sexual predations of other miners – many of whom already had passed years or decades in their own chthonian confinement.” Hundreds died of disease, accidents, or homicide, and in fact, mass burial fields near these old mines can still be located.
Blackmon charges that the desire to industrialize the South quickly was central to the restrictions put in place to suppress blacks, since these laws allowed for easy arrest and enslavement of workers. He avers:
Repeatedly, the timing and scale of surges in arrests appeared more attuned to rises and dips in the need for cheap labor than any demonstrable acts of crime.”
But also, and quite importantly, “these bulging slave centers became a primary weapon of suppression of black aspirations.” Millions of blacks lived in a shadow of fear that they or their family members would be taken into this system. It had a profound effect on their behavior and self-esteem.
Blackmon insists that any consideration of the progress of blacks in the United States after the Civil War must acknowledge that "slavery, real slavery, didn't end until 1945." (See the author’s website here for more information and documentation.)]
Thus the parents of today are the children of those who suffered under this egregious system, and so it can be expected that the repercussions continue to inform the expectations and attitudes of those who grew up with the stories and experiences derived from this very recent chapter in their family histories. And, one might argue, it could be expected that a serious reparations case would focus on this phenomenon (never mentioned in the book), for which plaintiffs would have a much better case than when slavery was not prohibited by the Constitution.
Evaluation: The intertwined stories of this book are definitely compelling, even if there are some plausibility issues, especially in the Lina sections of the book.
Published by William Morrow, an imprint of HarperCollins Publishers, 2013