Lea S. VanderVelde, University of Iowa College of Law, has published The Dred Scott Case in Context at 40 Journal of Supreme Court History 263 (2015). Here is the abstract.
This essay concisely summarizes several new discoveries about the Dred Scott case. It argues that only by examining three broader contexts does the case make sense and can its significance be seen. Contextual examination is necessary because the stipulated facts taken at face value make little sense. For example, how could aged slave bring a lawsuit in the first place and sustain it for eleven years against a master who lived in far-away New York? This seeming irrationality has led to speculation about motives which is, in fact, wrong. The case can only be explained by resort to three contexts in which the case is embedded. They are: 1) the national geography of westward migration, 2) local Missouri law, and 3) the parties’ intimate relationships to persons, who were not named in the case. Theoretically, this essay argues that these contexts are useful, if not essential, to understanding most high-profile, high-significance lawsuits, like Dred Scott v. Sanford. The first context highlights the larger role that slaves played in the nation’s expansion. There was a steady stream of slave petitioners who satisfied the criteria for freedom by having lived on free soil (freedom-by-residence) before arriving at the St. Louis courts in a slave state. The second context, local law, demonstrates certain aspects of the Missouri statute authorizing freedom suits. In many circumstances, Missouri law provided petitioning slaves with lawyers and a series of successful suits under that law created local expectations that slaves could sue for freedom and win. These two contexts demonstrate that the Scotts should have won the case easily, under Missouri law in the Missouri courts, until the Missouri Supreme Court changed course. The third context highlights other people who had a stake in the outcome. On the plaintiffs’ side, changing the incentives, were Mrs. Dred Scott (Harriet) and the Scotts’ daughters. Harriet Scott’s status as a mother rendered her more legally relevant to the family’s stability because the daughters’ legal status hinged on the determination of their mother’s status. So recognizing Mrs. Scott and the children’s stake in the case helps explain the litigants’ tenacity. Behind the defendant, John F. A. Sanford was his extended family, the slave-holding Chouteaus, who favored litigating to the end. Recognizing these hidden persons changes the incentives. These persons could exercise influence on whether the case settled.Download the article from SSRN at the link.