Toussaint on Du Bois, Afrofuturism, and Constitutional Renewal

Etienne C. Toussaint, University of South Carolina School of Law, has published After the Comet: Du Bois, Afrofuturism, and Constitutional Renewal at 101 NYU Law Review 1120 (2026). Here is the abstract.

American constitutional development has long followed cycles of crisis and restoration, resisting linear narratives of progress. This pattern is especially evident in the interplay between Black protest movements and constitutional interpretation, where transformative possibilities emerge during periods of social rupture but are later constrained by institutional restoration. This Essay argues that W.E.B. Du Bois’s 1920 speculative fiction, The Comet, offers a framework for understanding these cyclical dynamics. The short story’s three-part structure—normalcy, rupture, and restoration—reveals how genuine equality surfaces during catastrophic disruption yet proves unsustainable once hierarchical “normalcy” returns. Using interdisciplinary analysis that combines legal theory, historical inquiry, and literary criticism, this Essay traces “comet cycles” within major Black protest movements from abolition to contemporary struggles. It demonstrates that literary imagination can illuminate constitutional dynamics that conventional doctrinal analysis cannot reach. Specifically, this Essay argues that Black protest movements function both as catalysts of constitutional rupture and as interpreters of constitutional possibility during suspended moments of normalcy. Examining the abolitionist era, the Civil Rights Movement, and present-day struggles through Du Bois’s framework highlights how social movements advance foundational promises of liberty and equality while revealing the fragility of constitutional gains. Even radical critiques of constitutional legitimacy often arise because movements have taken these promises seriously, exposing the inadequacy of conventional reform. This approach offers strategic insight for contemporary movements, clarifying when transformative possibilities emerge and how restoration dynamics undermine them. By centering Black lived experiences as integral to constitutional interpretation, this Essay reframes American constitutionalism as shaped fundamentally by those historically excluded from legal discourse, yet central to its most transformative moments.

Download the article from SSRN at the link.

Carbado on Can You Be Black and Teach That?

Devon W. Carbado, UCLA School of Law, is publishing Can you be Black and Teach that? in the New York University Law Review. Here is the abstract.

Notwithstanding the broad literature on race and constitutional criminal procedure, scholars have rarely engaged the epistemological burdens Fourth Amendment law imposes on Black students and faculty. Those burdens derive from a fundamental and insufficiently acknowledged disjuncture: despite the rights-protecting language in the Fourth Amendment (in particular, its prohibition against “unreasonable searches and seizures”), Fourth Amendment law is, for Black people, a domain of existential violence. It is Fourth Amendment law that determines when and how the police may engage us in our homes, in our cars, at school, and on our streets—and it is Fourth Amendment law that produces and governs the anti-Black border between surveillance and death. This fraught and necrological feature of Fourth Amendment law sets the doctrinal terms on which Black students must learn, and Black faculty must teach, the law. In that regard, the violence Black people encounter in the context of engaging Fourth Amendment jurisprudence is against the very Black body they occupy. This Article describes that normalized epistemological environment. One might think of the account the Article provides as a pedagogy of the Black body, or more precisely, as an articulation of what the Black body can teach us about the racialized “field of pain and death” Fourth Amendment law produces. That field includes a constitutional archive that requires Black people to learn and teach law through our legally sanctioned disposability. Fourth Amendment law is thus not merely violent in its social effects; it is epistemologically violent—and legal pedagogy is one of the sites where that violence is reproduced.

Download the article from SSRN at the link.

Capers on Silencing as Blackening

I. Bennett Capers, Fordham University School of Law, has published Silencing as Blackening at 114 Georgetown Law Journal 813 (2026). Here is the abstract.

We are so accustomed to seeing defendants sit silently at criminal trials while their lawyers speak that we hardly question it. Or we tell ourselves this silence is for their own protection, part of their privilege against self-incrimination and the rules we have created for their own benefit. But what if we've gotten everything wrong? What if encouraging defendants to remain silent does not inure to their benefit at all, but to the State's? And what if this silencing is tied to race? "Silencing as Blackening" tells a fuller story about silent defendants. One, that this silence is rarely voluntary, but instead the result of a host of rules and decisions that encourage, coerce, and even compel silence. Two, although we have come to take defendants sitting silently as normal, in fact this silence is of recent origin. Three, although we claim this silence benefits defendants, the real beneficiary seems to be the State. Four, this silencing of defendants has a racial history, and today has race effects, such that we should recognize that silencing functions as a type of blackening. Rather than silencing defendants, and in effect blackening them, "Silencing as Blackening" argues we should carve out space for defendants to speak freely. And carve out space for us to listen. It argues that listening to defendants can help us rethink our entire criminal system. More ambitiously still, it argues that, just maybe, listening to defendants can help reduce racial and other biases. Can help undo race. And can help us let race go.

Download the article from SSRN at the link.

Upcoming Webinar: Taxation, Racial Capitalism, and the International Rule of Law: From Colonial Slavery to Global Governance

From Professor Paolo Farah, University of Tulsa School of Law: Upcoming Webinar: Taxation, Racial Capitalism, and the International Rule of Law: From Colonial Slavery to Global Governance

Taxation, Racial Capitalism, and the International Rule of Law: From Colonial Slavery to Global Governance Wednesday, July 22, 2026 12:00–1:30 PM EST Online This webinar brings into dialogue two important recent books: The Human Toll: Taxation and Slavery in Colonial America by Anthony C. Infanti (University of Pittsburgh School of Law) Racial Capitalism and International Tax Law: The Story of Global Jim Crow by Steven A. Dean (Boston University School of Law) The discussion will explore how legal and fiscal systems have historically contributed to structures of domination, exclusion, and racialized inequality, from the fiscal architecture of colonial America to the contemporary global tax order. By placing these works in conversation, the webinar examines the relationship between taxation, racial capitalism, historical injustice, and the rule of law, while reflecting on the capacity of legal institutions to address past and present inequalities. The event will be chaired by Paolo Davide Farah (The University of Tulsa College of Law), who will serve as moderator and discussant. Carliss N. Chatman (SMU Dedman School of Law) will also serve as discussant. The conversation may be of particular interest to scholars working in taxation, international law, comparative law, legal history, civil rights, critical legal studies, race and the law, socio-economics, political economy, international human rights, and related fields. Participation is free and open to all. Registration: https://lnkd.in/dMhpmbda Additional information: https://lnkd.in/dqAu24sr I would be most grateful if you could share this announcement with any colleagues who may have an interest in these topics. With best wishes, Paolo Paolo Davide Farah Chair, ESIL Interest Group on European and International Rule of Law Professor Paolo Davide FARAH, PhD University of Tulsa, College of Law 3120 East Fourth Place Tulsa, OK 74104 https://paolofarah.com/ https://paolofarah.wordpress.com/ papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=629289

Savage on Slavery and the Myth of Religious Liberty

Audra Savage, Wake Forest University School of Law, has published Slavery and the Myth of Religious Liberty at 51 BYU Law Review 1363. Here is the abstract.

This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and—through hard work, perseverance, and righteous rebellion—built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America, with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of the First Amendment of the United States Constitution, which encapsulates the mythology of the first ship. This jurisprudence, however, seemingly ignores the second ship and the Black experience with law and religion in the country’s early history. This reveals a gap in the myth of religious liberty that has influenced the Supreme Court’s adjudication of constitutional claims related to the First Amendment Religion Clauses. This Article provides the missing gap in the Court’s religious liberty story by exploring the historical role played by law and religion in the development of slavery in America. It describes the legal and religious understandings of Africans in early colonial history, including the justification for marking Africans for enslavement. It ends with insight into the countervailing forces of establishing slavery while disestablishing religion at the time the new nation was created. By providing this missing gap in the religious liberty story, the Article ensures that the first ship is less mythical and more real, while also ensuring that the second ship is not forgotten and takes its rightful place in church-state history.

Download the article from SSRN at the link.

Forthcoming: Benjamin Fagan, Frederick Douglass's Newspapers (University of Pennsylvania Press, 2026)

 Forthcoming from the University of Pennsylvania Press:

Benjamin Fagan, Auburn University, Frederick Douglass's Newspapers (2026). 

Here from the publisher's website is a description of the book's contents.

The first book to focus on the newspapers edited by Frederick Douglass and their impact on Black organizing.

A robust body of work has established the importance of print in general, and newspapers in particular, to African American culture in the 1800s. Such work regularly acknowledges Frederick Douglass (1818–1895) as one of the most influential newspaper editors of the nineteenth century, a judgment that Douglass and many of his contemporaries shared. But while recent scholarship has continued to expand our understanding of Douglass’s life and work, his newspapers remain largely understudied. Frederick Douglass’s Newspapers is the first book that explores the full range of Douglass’s periodicals.

Benjamin Fagan traces the making and impact of the four newspapers edited by Douglass: the North Star (1847–1851), Frederick Douglass’ Paper (1851–1860), Douglass’ Monthly (1858–1863), and the New National Era (1870–1874). Fagan highlights how Douglass and his co-workers—which included Martin R. Delany, James McCune Smith, William C. Neil, and Douglass’s daughter Rosetta Douglass, among others—practiced versions of Black organizing as they made his newspapers. By teasing out the inner workings of Douglass’s newspapers, Fagan explores the complex and often messy practices of Black organizing that made these publications possible.

In doing so, this book places Douglass’s newspapers at the center of the story of Black organizing in the nineteenth century. Douglass’s newspapers not only offered examples of how to organize for Black readers across the country, but he and his co-workers also participated in a variety of other kinds of Black organizations. Writers for Douglass’s papers put such experiences into print, and stories and lessons of Black organizing filled the pages of Douglass’s newspapers. They covered a variety of issues: abolitionism, school integration, politics both domestic and international, the Civil War, and the burgeoning Black labor movement, among others. Fagan’s close examination of the making of Douglass’s newspapers as well as what appeared in their pages chronicles how his publications were simultaneously examples and archives of Black organizing.

 

ICYMI: Bond on Representations of Law and Race Revisited: An Updated Survey of Recent American Film

ICYMI: Cynthia D. Bond, UIC School of Law, has published Representations of Law and Race Revisited: An Updated Survey of Recent American Film at 30 Denver Sports and Entertainment Law Journal 51 (Spring 2025). Here is the abstract.

This article revisits the author's Laws of Race/Laws of Representation: The Construction of Race and Law in Contemporary American Film, 11 Univ. Tex. Rev. of Sports and Ent. L. 219 (2010), surveying recent developments in mainstream films' depiction of the interrelated narratives of law and race. This article applies to current film the 2010 article's paradigm, which articulated three key narrative aspects of depictions of race and law in popular film: 1.) the raced construction of the lawyer-hero; 2.) the denial or displacement of the law's role in constructing race and race-based discrimination; and 3.) the suppression or revision of politics and political history. Using this paradigm as a point of departure, the article examines a range of films, TV shows, and streaming series that grapple with race under law. Particular focus is paid to films created post-2020, in light of social movements like Black Lives Matter and the attendant increased public dialogue regarding racialized legal disparities in American life. Beyond displaying a mere statistical uptick of racially diverse casting, films and series of the last fifteen years reveal that popular culture can engage notions of race and its place under law in a more direct and nuanced way.

Download the article from SSRN at the link.

Pasker on "Which History has Condescended to Notice": Black Testimony in Antebellum Courts

Robert B. Pasker, CUNY Department of History, has published "Which History has Condescended to Notice": Black Testimony in Antebellum Courts. Here is the abstract.

This study investigates the contested admissibility of Black testimony in American courts between 1790 and 1865, analyzing 73 appellate opinions across 11 states and the District of Columbia. Contrary to the prevailing historiography that portrays antebellum statutes as universally excluding Black voices, these cases reveal that judges frequently exercised discretion to admit testimony where exclusion threatened the courts’ procedural capacity to adjudicate. The analysis demonstrates that judicial reasoning prioritized institutional functionality rather than moral or rights-based considerations. A central challenge was methodological: appellate case law is vast, dispersed, and embedded in archaic legal language that resists conventional search tools. To overcome this, I developed Roscoe, a machine-learning system designed to perform conceptual searches, generate topical classifications, and produce plain-language summaries of nineteenth-century case law. Named for Roscoe Pound, the system allowed efficient retrieval and categorization of relevant cases from hundreds of thousands of digitized opinions. Roscoe not only enhanced recall and precision in identifying Black testimony cases but also facilitated thematic grouping across jurisdictional boundaries, making possible a genuinely national analysis. The findings expose the structural contradiction at the core of antebellum jurisprudence: statutes that categorically barred Black testimony collided with the judiciary’s pragmatic need for probative evidence. Appellate decisions show how Black participation forced courts to adapt in ways that preserved institutional authority while reinforcing racial hierarchy. This duality—judicial flexibility without recognition of Black rights—complicates prevailing narratives of antebellum legal history and demonstrates how digital methodologies can expand the evidentiary base of legal historiography.

Download the article from SSRN at the link.

Zietlow on Fugitives From Slavery, Free Black Activists, and the Origins of Birthright Citizenship

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Fugitives From Slavery, Free Black Activists, and the Origins of Birthright Citizenship in the Mississippi Law Journal.

In 1852, Martin Delany, a free Black doctor, journalist, and antislavery activist wrote an influential treatise on the rights of free Black people in which he claimed, “We are Americans having a birthright citizenship….” Ten years later, during the Civil War, Delany backed his words with actions by volunteering for the Union Army and recruiting Black soldiers for an army regiment. Delany’s theory of birthright citizenship was shared by thousands of antislavery and Black civil rights activists in the antebellum era, including William Yates, who wrote the first treatise on the rights of free Black people in 1838, and Frederick Douglass, a fugitive from slavery who became one of the most prominent abolitionist leaders. Black activists used the language of citizenship to claim their status as rights-bearing people who belonged to the community in which they live and to the national polity. Fugitives from slavery crossed state borders in search of freedom and human rights. Their free Black allies argued that they were citizens by virtue of being born in the United States and, as citizens, were entitled to human rights. Free Black people emphasized their loyalty to the national polity and their willingness to sacrifice to prove their loyalty. During the Civil War, fugitives from slavery and free Black people volunteered to serve in the Union army, risking their lives in support of the polity and proving their loyalty and eligibility for citizenship rights. This Essay explores the origins of birthright citizenship and describes the centrality of citizenship rights in the advocacy of people, like Delany, who participated in the Free Black Civil Rights Movement and Antislavery Movement. Birthright citizenship is a promise of equality for all people who are born in the United States, regardless of their race or the national origin of their parents. It is in our Constitution today because of the advocacy of people who were brought involuntarily into our country and claimed their right to citizenship with their actions and their activism.

Download the articles from SSRN at the link.

Keay, Inwood, and Long on Public Sentiment and Criminal Sentencing: Gender, Indigeneity, and Class in Nineteenth Century British Columbia

Ian Keay, Department of Economics, Queen's University, Kris Inwood, University of Guelph, Department of Economics, and Blair Long, Memorial University, have published Public Sentiment and Criminal Sentencing: Gender, Indigeneity, and Class in Nineteenth Century British Columbia . Here is the abstract.

Using prison admission ledgers, we document the criminal sentencing behaviour of judges through an institutionally transformative period in the history of the Canadian province of British Columbia (BC). Between 1864 and 1913 we find significant biases in sentencing that resulted in shorter sentences for Indigenous, Chinese-origin, and female prisoners, relative to prisoners with otherwise similar observable characteristics. In contrast, prisoners who reported occupations typically held by those in the lowest and highest social classes had relatively longer sentences than the average prisoner. Over time, these biases shifted for those of Indigenous and Chinese-origin, and for women, concurrent with changes in public sentiment and significant historical and institutional events in BC. We use the probability of each prisoner's predicted future recidivism to test for the presence and impact of statistical discrimination. We find evidence of significant statistical bias, but the effect on prisoners' sentences is small, and most of the differential sentencing we document can be attributed to some combination of judge's taste-based discriminatory attitudes, and statistical discrimination along other dimensions.

Download the article from SSRN at the link.

Toussaint on the Cultivation of Black Letter Law @etiennetoussaint.bsky.social

Etienne C. Toussaint, University of South Carolina School of Law, has pulished On the Cultivation of Black Letter Law at 124 Columbia Law Review 151 (2024). Here is the abstract.

Engaging with the sociocultural dimensions of race and racism across U.S. history is essential when creating, critiquing, and reforming the law. Building on Robin West’s exploration of the law and culture movement, this Piece introduces a novel “hermeneutic” project that reads Black American culture throughout U.S. history to gain critical insights into the nature and function of law in America. Black American culture, deeply rooted in the sociocultural traditions uniting members of the African diaspora, has consistently challenged White supremacy and played a foundational role in shaping U.S. law. To illustrate the value of studying law through the lens of race and culture, this Piece incorporates an analysis of Ralph Ellison’s "Invisible Man" alongside the author’s experiences in a Black urban neighborhood in the South Bronx. It argues that intentionally “reading culture” is crucial for uncovering deeper insights into the inherent nature of law. This cultural-legal approach provides a framework for recognizing the limitations of liberal legalism, understanding the cultural production of legal meaning, and advancing legal reform, democracy, and justice in American society. By blending cultural analysis with legal critique, this Piece aims to promote more equitable legal practices informed by the lived experiences and cultural contributions of Black Americans and other marginalized groups.

Download the article from SSRN at the link.

Harris on Ida B. Wells' Train Ride in Memphis and the Dawn of Jim Crow @memlawschool

Lee Harris, University of Memphis School of Law, has published Ida B. Wells' Train Ride in Memphis and the Dawn of Jim Crow at 2 Journal of American Constitutional History 297 (2024). Here is the abstract.

Before there was Rosa Parks, Ida B. Wells and women across the United States during the late nineteenth century were challenging discriminatory practices on the public transit system of their era: the railroads. In 1881, Wells, who would eventually become a history-making anti-lynching crusader, was just 19 years old. She was readying herself to leave Holly Springs, Mississippi, her hometown, for the first time and move to Memphis for a higher-paying teaching job. She planned to commute by train to and from her new position. Developers had laid train tracks around the city, and Memphis boasted seven rail lines. In those years of her youth, before she left the South for the national stage, Ida B. Wells was a regular train commuter in Memphis. Also, at the time of her young adulthood, racial segregation was still at its embryonic stage. However, principles of segregation had been spreading incredibly fast into multiple domains, including the nascent transit system. Soon enough, her usual train commute from Memphis set the backdrop for one of her most consequential legal changes taking place in the country and the arrival of Jim Crow. Before Rosa Parks, Ida B. Wells was one of the first women in America who refused to give up her seat and made a legal challenge to the segregationist system that was emerging around the nation. Although she did not win, her actions set the stage for the next several decades of the fight against segregation and Jim Crow.

Download the article from SSRN at the link.

Pfeiffer and Hu on Deconstructing Code Words @ASUCollegeOfLaw @uarizonalaw @law_soc

Deirdre Pfeiffer, Arizona State College of Law, and Xiaoqian Hu, University of Arizona College of Law, are publishing Deconstructing Racial Code Words in volume 58 of Law & Society (2024). Here is the abstract.

Racism has become more covert in post-civil rights America. Yet, measures to combat it are hindered by inadequate general knowledge on what “colorblind” race talk says and does and what makes it effective. We deepen understanding of covert racism by investigating one type of discourse—racial code words, which are 1) indirect signifiers of racial or ethnic groups that contain 2) at least one positive or negative value judgment and 3) contextually implied or salient meanings. Through a thematic analysis of 734 racial code words from 97 scholarly texts, we develop an interpretive framework that explains their tropes, linguistic mechanisms, and unique roles in perpetuating racism, drawing from race, linguistic, and cultural studies. Racial code words promote tropes of White people’s respectability and privilege and Racial/Ethnic Minorities’ pathology and inferiority in efficient, adaptable, plausibly deniable, and almost always racially stratifying ways, often through euphemism, metonymy, and othering. They construct a “colorblind” discursivity and propel both “epistemic racism” (racism in knowledge) and systemic racism (racism in action). We further strengthen applications of Critical Race Theory in sociolegal studies of race by presenting a “racial meaning decoding tool” to assist legal and societal measures to detect coded racism.

Download the article from SSRN at the link.

Akande on An Imperial History of Race-Religion in International Law @RabiatAkande @OsgoodeNews

Rabiat Akande, Osgoode Hall, has published An Imperial History of Race-Religion in International Law at 118 American Journal of International Law 1 (2024). Here is the abstract.

More than half a century after the UN’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination, a debate has emerged over whether to extend the Convention’s protections to religious discrimination. This Article uses history to intervene in the debate. It argues that racial and religious othering were mutually co-constitutive in the colonial encounter and foundational to the making of modern international law. Moreover, the contemporary proposal to address the interplay of racial and religious othering is hardly new; iterations of that demand surfaced in the earlier twentieth century, as well. By illuminating the centrality of race-religion othering to the colonial encounter and chronicling failed attempts by Europe’s “others” to secure international legal protections, this Article makes a case for crafting an attuned response in the present.

Download the article from SSRN at the link.

Call For Papers, Authoring Slavery, Aarhus University, June 18-19, 2024

 From Symposium organizers, Aarhus University, Denmark

 

Dear colleagues,

 

Please find attached a call for papers for our 2 day seminar on ‘Authoring slavery’  which we are organizing at Aarhus University, from 18-19th of June 2024. Here is the link to the event on our website: Authoring slavery.

 

The deadline for paper proposals is March 1, 2024.

 

Please send a 300-500 words abstract, with name, email and institutional affiliation to:

 

Pelckmans@hum.ku.dk and madsbaggesgaard@cc.au.dk

 

You may also consider to propose an article for our upcoming publication on Slavery, Authorship and Literary Culture, vol. 3 of Comparative Literary History of Modern Slavery. Here the deadline is April 1.

 

Looking forward to your inspiring contributions!

 

And please share with interested colleagues.

 Mads Anders Baggesgaard

Associate professor, PhD

Direct: +45 87 16 30 92

Mobile: +45 61 65 81 94

Dr. Lotte Pelckmans

 

P.S. Unfortunately, we do not dispose of funding to support travel, but participation is free.

 

Frampton on The First Black Jurors and the Integration of the American Jury @TFrampton @UVALaw @nyulawreview

Thomas Frampton, University of Virginia School of Law, is publishing The First Black Jurors and the Integration of the American Jury in the New York University Law Review for 2024. Here is the abstract.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

Download the article from SSRN at the link.

Epps and Green on Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale @TempleLaw @TempleEpps

JoAnne Epps and Craig Green, both of Temple University School of Law, have published Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale as Temple University Legal Studies Research Paper No. 2023-21. Here is the abstract.

Almost no one knows that Yale had the first affirmative action policy of any elite law school in the country. Twelve Black students who were admitted in 1968 formed the largest nonwhite group to attend Yale Law School in 150 years. At the time, race-inclusive admissions were immediately condemned as an “explosive sociological experiment” in apartheid segregation that would damage Yale’s reputation while producing a sense of “intellectual superiority among the white students” and “intellectual inferiority among the Black students.” Critics endorsed a general aspiration for law schools to educate students from racial minority groups, but not at elite institutions like Yale: “There are many good regional and local law schools in Philadelphia, Boston, Los Angeles, and other metropolitan areas, where Black law students . . . can study law in competition with students of similar qualifications and aptitudes.” Despite those critiques and predictions, all of the twelve Black Yale students eventually became judges, professors, civil rights lawyers, government leaders, in-house counsel, or successful private attorneys. For more than fifty years—an “Affirmative Action Era”—elite law schools across the United States have admitted Black students who transformed the history of legal education, the legal profession, and society at large. To understand and document that phenomenon, we sought to contact every Black Yale law student from the entering classes of 1963 to 1978. Using oral history techniques, we interviewed forty-seven people in thirteen states, including one person from each class year. Such interviews offer unparalleled detail about Black students who attended Yale in this period, what law school was like at the time, professional opportunities that emerged afterward, and structural obstacles that individuals had to confront, overcome, or dismantle in law school and throughout their professional lives. This Article uses new historical materials and interpretations to challenge modern stereotypes and generalizations about affirmative action that have been endorsed by prominent critics including Justice Clarence Thomas. Specific historical narratives from former Yale students illustrate dramatic risks of colorblind constitutionalism across the country, and this Article’s multilayered history of affirmative action supports solutions that recognize the profound importance of Black law students in the past, present, and future. 

Download the article from SSRN at the link.

Koppelman on Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment @AndrewKoppelman @NorthwesternLaw @_WayneLaw

Andrew Koppelman, Northwestern Uniersity School of Law, is pulishing Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment in the Wayne Law Review. Here is the abstract.

Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong. The description will inevitably be shaped by the values of the interpreter. Every historical episode is susceptible to multiple interpretations, depending on which aspects the interpreter deems salient. One danger, which happened in the past and is happening again, is that an interpreter who is untroubled by some aspects of the historical evil may improperly narrow its scope by deeming those aspects outside the prohibition. I illustrate this by focusing on two constitutional provisions, the Thirteenth Amendment’s prohibition of slavery and the First Amendment’s prohibition of establishments of religion. Each has been subjected to narrowing constructions, which focus on uncontroversial aspects of the historical wrong and then assert without further argument that they exhaust the provision’s coverage. The most recent instance of this maneuver is Justice Gorsuch’s reformulation of Establishment Clause law, cited with approval in his opinion for the Court in Kennedy v. Bremerton, which would allow previously impermissible public endorsements of specific religious beliefs. His interpretive strategy is the same one that the Court used to restrict the scope of the Thirteenth Amendment in the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States.

Download the article from SSRN at the link.

Gillmer on Pearson v. Pearson: A Story of Slavery, Marriage, and the West, Told in Black and White @GonzagaLaw

Jason Gillmer, Gonzaga University School of Law, has published Pearson v. Pearson: A Story of Slavery, Marriage, and the West, Told in Black and White. Here is the abstract.

This Article is a narrative history of a relationship between a white man named Richard and a Black woman named Laura that started in slavery and ended twenty-seven years later in a trial over whether they were husband and wife. The story follows some of the usual plotlines. Richard purchased Laura at a slave sale and brought her to his home in Missouri; he then married a white woman and they had a daughter together. Within a few years, however, that marriage fell apart, and soon after, Richard allegedly freed Laura and the two of them went to California and built a life together. Twenty years later, after Richard died, Richard’s long-lost daughter brought suit in a California courtroom. She sought to eject Laura from the home she shared with Richard on the theory she, rather than Laura, was Richard’s sole surviving heir and entitled to his large estate. This Article recreates the story of Richard and Laura to offer an intimate glimpse into the complexities of interracial relationships during slavery and the decades that followed. It is built out of the trial transcripts—which until now have remained hidden for 150 years—and relies heavily on the actual words of the lawyers, witnesses, and litigants to shape the narrative. The uniqueness of this approach is also what provides its value. Relying on their words and voices, this Article shines a light on how the parties and the participants saw their world, not on how others saw it for them. Richard and Laura’s story is also noteworthy in that it spans several decades and unfolds over several milestones—slavery, the Gold Rush, and westward expansion—creating the opportunity to expand our understanding of the individual experiences of people involved in Black-white relationships beyond what is typically found in the literature. Hearing about their story, and about the courtroom battle over the legitimacy of their relationship, provides context for why interracial families, even today, continue to suffer from minor indignities and open hostilities simply because they broke the norm.

Download the article from SSRN at the link.

McMahon on Canada's Laws of White Supremacy

Thomas McMahon has published Canada’s Laws of White Supremacy: 1496-1791. Here is the abstract.

Is it permitted to say "white supremacy" when discussing Canada's foundational documents and archives? The purpose of this research paper is to identify the key legal documents establishing white supremacy as the foundational doctrine of Canada's legal history. If you refuse to name the problem, you can't begin to solve it.

Download the article from SSRN at the link.