Kastner on Deviance in Nineteenth-Century American Law and Culture

Tal Kastner, Rutgers Law School, has published Deviance in Nineteenth-Century American Law and Culture. Here is the abstract.

Viewing slavery as a defining phenomenon of the American nineteenth century, this chapter traces the unstable and evolving relation in this era between norm or law and deviance or crime. The dynamic negotiations of the parameters of normativity of this period, not least as embodied in the law and in relation to slavery, significantly shaped American culture and society. As norms became the subject of dispute, shifting figures of deviance emerged. It is not until the end of the nineteenth century that certain practices, such as homosexual acts, come to constitute a deviant identity. Indeed, the deviant as an identity determined by an individual’s divergence from a norm does not enter into American usage until the twentieth century. Nonetheless, slavery—itself a contested legal and social phenomenon in this period—significantly shaped the ways normative social structures, including race, gender, and sexuality, are constructed in the course of the nineteenth century through law. Dubbed the South’s “peculiar institution”—in the sense of its distinctiveness to this particular society—slavery figures at the heart of the normative debate and resulting legal and social transformations of the nineteenth century. At mid-century, the contest over slavery precipitated discussion among abolitionists about the normative status of the Constitution. Adherence to the dictates of the law—a purported site of normativity—came to be seen by some as criminal, impacting the ongoing negotiation of the bounds of deviance. The discussion below explores how works of literature, including The Scarlet Letter, Bartleby, Incidents in the Life of a Slave Girl, The Bostonians, and other works, along with legal developments and cultural constructs, reflect and participate in the negotiation of normativity in the nineteenth century, as informed by the transforming figure of slavery. In addition, it traces the normative social models and counter-models precipitated by slavery, such as the penitentiary, the ideal of contract, and marriage.

Download the chapter 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

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.

 

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.

Knowles-Gardner on Arriving as an Answer to the "The Question of Questions": How Lysander Spooner's Legal Education Influenced His (and Frederick Douglass's) Belief That Slavery Was Unconstitutional @KnowlesGardner @InstFreeSpeech @GeorgetownJLPP

Helen J. Knowles-Gardner, Institute for Free Speech, is publishing Arriving at an Answer to the ‘The Question of Questions’: How Lysander Spooner’s Legal Education Influenced His (and Frederick Douglass’s) Belief That Slavery Was Unconstitutional in volume 22 of the Georgetown Journal of Law & Public Policy. Here is the abstract.

Numerous scholars have examined the reasons why Frederick Douglass shifted his position on the relationship between slavery and the Constitution (from embracing the Garrisonian condemnation of the document as a "covenant with death, and an agreement with hell" to embracing the position that slavery was unconstitutional) This article builds on that existing scholarship – including my own previous writings about Lysander Spooner’s interpretive philosophy – by examining Douglass’s “change of opinion,” the influence of Spooner, and why Spooner came to embrace the position that Douglass ultimately found so persuasive. Why did Spooner arrive at (and then write an exceptionally detailed two-part treatise explaining) the conclusion that not only was the Constitution anti-slavery but also that slavery itself was unconstitutional? I argue that a detailed analysis of Spooner’s legal education helps us to answer that question.

Download the article from SSRN at the link.

Chapman on Slave Cases and Ingrained Racism in Legal Information Infrastructures @UMDLawLibrary @UMDLaw

Jennifer Elisa Chapman, University of Maryland School of Law, University of Maryland Thurgood Marshall Law Library, has published Slave Cases and Ingrained Racism in Legal Information Infrastructures in Antiracist Library and Information Science: Racial Justice and Community (K. Black and B. Mehra, eds., Emerald Publishing, 2023) (Advances in Librarianship; 52).

Present-day courts, practitioners, and scholars continue to cite to and rely upon cases involving slavery and enslaved persons to construe, interpret, and apply common-law principles of property, contract, family, tort, and other areas of the law. Often a case’s connections to slavery are not acknowledged in citations. This erasing of context causes institutional harms by both embedding slave-based legal analysis in American legal structures and condoning the detrimental impacts of slavery in society. The deleterious effects of slavery persist through citations to cases involving enslaved persons to support such prosaic present-day issues as warranties on window glass. Slavery may no longer be legal, but its long shadow persists in citations and, thereby, is embedded in the information systems informing the legal profession. The information infrastructures that categorize case law and inform legal research ingrain racism in the American legal system by perpetuating and masking case law connections to slavery and enslaved persons. The legal profession has recently been criticized for the continued citation to cases that state good law or persuasive authority but are rooted in the institution of slavery. This chapter builds on this important research and contributes a necessary element to the discussion – namely how legal information infrastructures contribute to continuing citation to slave cases and how the library and information science (LIS) field can help institute change and promote racial justice.

Download the essay from SSRN at the link.

Chatman on Teaching Slavery in Commercial Law @carlissc @wlulaw

Carliss Chatman, Washington and Lee School of Law, has published Teaching Slavery in Commercial Law. Here is the abstract.

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans combined with standards developed to facilitate the growth of the international commodities market for products, including cotton. The impact of that shift in status persists today. The commodities markets and the nations that arose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that played a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational. Many American universities played a role in the slave trade—either receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce.

Download the article from SSRN at the link.

Newly published: Marcy J. Dinius, The Textual Effects of David Walker's "Appeal": Print-Based Activism Against Slavery, Racism, and Discrimination, 1829-1851 (University of Pennsylvania Press, 2022) @PennPress

Newly published: Marcy J. Dinius, The Textual Effects of David Walker's "Appeal": Print-Based Activism Against Slavery, Racism, and Discrimination, 1829-1851 (University of Pennsylvania Press, 2022). Here from the publisher's website is a description of the book's content.

Historians and literary historians alike recognize David Walker's Appeal to the Coloured Citizens of the World (1829-1830) as one of the most politically radical and consequential antislavery texts ever published, yet the pamphlet's significant impact on North American nineteenth-century print-based activism has gone under-examined. In The Textual Effects of David Walker's "Appeal" Marcy J. Dinius offers the first in-depth analysis of Walker's argumentatively and typographically radical pamphlet and its direct influence on five Black and Indigenous activist authors, Maria W. Stewart, William Apess, William Paul Quinn, Henry Highland Garnet, and Paola Brown, and the pamphlets that they wrote and published in the United States and Canada between 1831 and 1851. She also examines how Walker's Appeal exerted a powerful and lasting influence on William Lloyd Garrison's Liberator and other publications by White antislavery activists. Dinius contends that scholars have neglected the positive, transnational, and transformative effects of Walker's Appeal on print-based political activism and literary and book history—that is, its primarily textual effects—due to an enduringly narrow focus on the violence that the pamphlet may have occasioned. She offers as an alternative a broadened view of activism and resistance that centers the works of Walker, Stewart, Apess, Quinn, Garnet, and Brown within an exploration of radical forms of authorship, publication, civic participation, and resistance. In doing so, she has written a major contribution to African American literary studies and the history of the book in antebellum America.

Savage on COVID-1619: A Brief History of Racism @Dr_Audra_Savage @EmoryLaw

Audra Savage, Emory University Law School,has published COVID-1619: A Brief History of Racism. Here is the abstract.

Racism is the use of Black people to achieve the goals of white people without regard to the personhood, humanity, and agency of Blacks. This essay explores this definition of racism by tracing the influence of the twin institutions of law and religion in creating and maintaining the slave system in early colonial America. The essay then demonstrates the pernicious and persistent nature of racism by mapping this definition onto the current COVID-19 pandemic and its disproportionate impact on Black Americans.

Download the article from SSRN at the link.

Castilla Urbano on The Salamanca School on Slavery

Francisco Castilla Urbano, University of Alcalá, has published The Salamanca School on Slavery: From Naturalism to Culture and Awareness as Max Planck Institute for European Legal History Research Paper Series No. 2020-02. Here is the abstract.

This article examines the reflections on slavery by a group of 16th-century scholastics considered members or followers of the so-called School of Salamanca. I show that a gradual process of critical awareness developed regarding both the concept of natural slavery and its justifications. After pointing to the fact that Native Americans and Africans were the first victims of the modern application of the concept of natural slavery, I identify the most important milestones leading up to the intellectual dismantling of the concept, effectively leaving it without a recognizable point of reference in the real world. In a further step, I point out that, despite the theory of natural slavery having been abandoned, the practices that protected legal slavery since antiquity persisted in Spanish America, especially when applied to African slaves. Some of these thinkers contributed to a first wave of accusatory pleadings against the persistent deception intentionally used by slave sellers and owners to circumvent the legal clauses dictated by the Spanish Monarchy governing the release of Africans unjustly deprived of freedom. Nevertheless, and despite the pioneering critiques offered by figures such as Bartolomé de Las Casas and Tomás de Mercado, the Salamanca scholars were not unanimous in their support of this criticism. In fact, we can identify in the writings of Francisco de Vitoria and Domingo de Soto the core of the legal and moral-theological argumentation utilized by many buyers and sellers all the way up to the 19th century. As I show, at this time, an alleged invincible ignorance about the conditions under which a slave brought to the Western Indies had been enslaved was sufficient to warrant a just title, thus granting the ownership to holders in the Americas.

Download the article from SSRN at the link.

Call for Proposals: 5th Global Meeting: Slavery Past, Present & Future, Webster University, Leiden, the Netherlands

SLAVERY PAST, PRESENT & FUTURE: 5th Global Meeting

Webster University, Leiden, The Netherlands
June 22-24, 2020

Slavery (the treatment of humans as chattel) and enslavement through conquest, birth, gender, race, ethnicity, kinship, and exploitation of indebtedness have been an intrinsic part of human societies.

Slavery and a variety of other forms of exploitation existed in ancient societies across the world, and in many other states and territories.  The Transatlantic Slave Trade furnished at least 10 million Africans for slavery throughout the Americas. 

Controversial and contested estimates indicate that up to 40 million people worldwide are enslaved today.  This modern re-emergence of slavery into public view, following legal abolition of the trans-Atlantic slave trade over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of individual victims and communities.

But should we think of these people as enslaved? And if so, is slavery an inevitable part of the human condition? Like ‘consumers’ of past eras, such as early industrialization, are we dependent on the exploitation of others? What does the persistence and mutations of different forms of exploitation mean in the context of abolition and recognition of universal individual and collective human rights? 

The varieties of contemporary forms of exploitation appear to be endless. This interdisciplinary conference will facilitate a multidisciplinary exploration of slavery in all its dimensions. 

Submissions are sought from people from all walks of life and identities, including:

• Academics: from all disciplines, such as art, film, anthropology, sociology, history, ethnic studies, politics, social work, economics, and any field that touches the study of exploitation
• Civil society members: human rights activists, leaders in non-governmental organizations, and others in the NGO or social advocacy fields
• Professionals: social workers, corporate social responsibility and business ethics professionals, business leaders, and health care professionals
• Government actors: representatives, policymakers, lobbyists, and analysts
• Global citizens with personal connections to slavery or exploitation: former slaves or indentured laborers, members of at-risk populations, migrant or guest workers, non-regularized immigrants, and refugees

We particularly encourage submissions from the Global South.

Potential themes and sub-themes include but are not limited to:

1. Defining Slavery
1. What do we mean when we talk about “slavery”
2. Using “slavery” to obscure other endemic forms of exploitation
3. Teaching and learning about historic slavery and contemporary forms of exploitation
2. Slaveries of the Past
1. Classical (Egyptian, Greco-Roman, etc.) slavery
2. Conquests and colonization – Aboriginal Australians, indigenous peoples of the New World, dividing and colonizing Africa and Asia
3. Slaveries in Europe pre-Industrialization, such as villeinage and serfdom
4. Trans-Atlantic Slavery and the trans-Atlantic Slave Trade
5. Depictions of slaves and slave traders in texts and art during the Abolition Period
6. Systems of slavery in tribal and traditional societies
7. WWII and post-WWII forced labor camps
3. Human Trafficking and other Forms of Contemporary Exploitation
1. Definitions - Is human trafficking “slavery”
2. Types of human trafficking (labor trafficking, sex trafficking, organ trafficking, etc.)
3. Civil society anti-trafficking activism: assessing contemporary initiatives and movements
4. The role of the nation state:

                                                               i.      Can the nation state enslave? (prison labor, mandated military service, etc.)

                                                             ii.      Anti-trafficking policies and legislation

4. Systems and Structures of Enslavement and Subordination (historic and contemporary)
1. Role of slavery in national and global economies
2. Economic, political, legal structures – their role in enslavement and exploitation
3. Slavery’s impact on culture and the cultural impacts of historic slavery
5. Voices of the Enslaved
1. Slave narratives of the past and present
2. Descendants’ interpretation of their enslaved and/or slave-holding ancestors
6. Legacies of Slavery
1. Identifying and mapping contemporary legacies – economic, social, cultural, psychological (e.g., Post traumatic stress disorder and intergenerational trauma)
2. Assessment of slavery’s impact – economic, political, other
3. Commemorations and memorialization of enslavers and/or the enslaved
4. Legal regimes tacitly designed to perpetuate slavery (e.g., convict leasing)
5. Legal segregation or discrimination (in housing, education, banking, transportation, etc.)
6. Racial terror (e.g., lynching, forced removals)
7. Racial subordination and re-enslavement (e.g., voter disfranchisement, mass incarceration, medical apartheid)
8. Desecration of burial sites of the enslaved
9. Destruction of or denial of access to historical information
10. Lack of memorialization of sacred events/sacred persons/sacred sites
11. Transitional justice (e.g., reparations, memorialization, restitution)
12. Limited rights attribution and recognition for Afro-descended peoples
13. Capacities (and limitations) of domestic and international law in creating, implementing and challenging slavery’s legacies
14. Built environment (e.g., architecture, historic buildings, cityscapes, borders)
7. Anti-slavery Initiatives and Movements
1. Reparations
2. Economic compensation
3. Restorative justice
4. Teaching and learning about slavery
5. Relationship to the global racial hierarchy
6. Abolitionism and law: effects and (in)effectiveness
7. The role of technology and multimedia

Conference Committee: 

• Karen E. Bravo (Indiana University Robert H. McKinney School of Law, IN, USA)
• David Bulla (Augusta University, GA, USA)
• Ursula Doyle (Northern Kentucky University School of Law, KY, USA)
• Judith Onwubiko (University of Kent, United Kingdom)
• Ulrich Pallua (University of Innsbruck, Austria)
• Sheetal Shah (Webster University, Leiden, The Netherlands)
• Judith Spicksley (University of Hull, United Kingdom)

Submitting Your Proposal:

Proposals should be submitted no later than Friday, February 28, 2020 to:

·         Karen E. Bravo, Indiana University Robert H. McKinney School of Law: kbravo@iupui.edu

·         E-Mail Subject Line: Slavery Past Present & Future 5 Proposal Submission

·         File Format: Microsoft Word (DOC or DOCX)

 The following information must be included in the body of the email:

·         Author(s)

·         Affiliation as you would like it to appear in the conference program

·         Corresponding author email address

 The following information must be in the Microsoft Word file:

·         Title of proposal

·         Body of proposal (maximum of 300 words)

·         Keywords (maximum of ten)

Please keep the following in mind:

·         All text must be in Times New Roman 12.

·         No footnotes or special formatting (bold, underline, or italicization) must be used.

Evaluating Your Proposal

All abstracts will be double-blind peer reviewed and you will be notified of the Organizing Committee’s decision no later than Friday, March 20, 2020.  If a positive decision is made, you will be asked to promptly register online. You will be asked to submit a draft paper of no more than 2000 words by Friday, May 8, 2020.

The conference registration fee is €220.

We offer a limited number of fellowships to participants who would otherwise be foreclosed from attending.  The fellowships take the form of registration deferrals.

Inniss on Slavery at Princeton @AuntieFeminist @SMULawSchool

Lolita Buckness Inniss, Southern Methodist University School of Law, has published ‘A Southern College Slipped from Its Geographical Moorings’: Slavery at Princeton at 39 Slavery & Abolition 236 (2018). Here is the abstract.

While slave-owning students at Princeton rarely constituted a majority of students, they were often a large plurality of the students in the antebellum period. Because of Princeton's historic role in educating southerners, it has sometimes been referred to as the most southern of the Ivy League schools. So many students from the United States South enrolled at Princeton during the first several decades of the college that one observer wrote that one might take Princeton for a ‘Southern college slipped from its geographical moorings.’ This article explores the extent to which and whether Princeton behaved like a southern institution in its speech and actions concerning slavery and emancipation.

The full text is not available for download from SSRN.