The Precedential Weight of Slavery

Introduction

Abstract

This Article reveals the hidden influence of slavery in contemporary law and explores the issues created by the profession’s failure to address this legacy. It finds that slave cases are cited at equivalent rates to other cases decided at the same time in the same courts and uses newly available citation data to estimate that 18% of all American reported cases are within two citations of a slave case. The pervasive influence of the law of slavery on contemporary American law raises hard questions about what it means to acknowledge and redress the terrible damage that slavery inflicted. It also raises questions about the law these deci- sions helped create. Scholars and judges have mostly avoided these questions by treating slave cases, especially those involving routine legal matters, as ordinary law. This Article suggests that this treatment is unjustified. Slave cases are too deeply entwined in American law to completely excise their influence but ignoring that influence should no longer be an option.

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