LEGAL HISTORY eJOURNAL

"Cornelius Sinclair's Odyssey: Freedom, Slavery, and Freedom Again in the Old South" Free Download
UNC Legal Studies Research Paper No. 2469529

JUDSON E. CRUMP, Independent
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ALFRED L. BROPHY, University of North Carolina (UNC) at Chapel Hill - School of Law
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In August 1825 several free, young black people were enticed onto a ship in the Delaware River along the Philadelphia waterfront. Thus began their descent to the heart of the old South. They were kidnapped and held aboard a ship destined for a stop somewhere near Cape Henlopen, Delaware. Some days later they were carried by wagon to Maryland’s eastern shore and another ship took them further south. They walked across Georgia and into Alabama. One young man, Cornelius Sinclair, was sold in Tuscaloosa. He was a free person converted into a slave. But that was not the end.

Those who survived were then taken to Mississippi, where a slave-owner realized that they were probably free. The slave-owner contacted the Mayor of Philadelphia to verify the story of kidnapping and eventually most of those held in Mississippi were sent back to Philadelphia. Then the mayor set about rescuing Sinclair, too. In Tuscaloosa, a local minister helped Sinclair by filing a lawsuit to ask for his freedom. A judge, who would later, as governor of Alabama, seek to imprison abolitionists for spreading antislavery literature, presided over the trial that freed Sinclair. The newly freed Sinclair made a trip even further south, to New Orleans, and eventually back to Philadelphia where he faced down the men who had kidnapped him.

Sinclair's story is one of epic proportions. It is a nineteenth century version of the Odyssey. And while Cornelius' journey home took fewer years than Odysseus' journey, Sinclair traveled farther. Some of the other kidnapped people made it home as well; one died along the way. Others never returned. But this story is one of the dark evil in human hearts and also of the triumph, even if in greatly circumscribed fashion, of the rule of law. It is a story of a most unexpected turn in a legal system dedicated to the maintenance of the system of slavery.

While there has been some previous discussion of Sinclair’s case, that story has been told only briefly and exclusively from the perspective of the anti-slavery press and the records in Philadelphia. This is the first time that the Tuscaloosa part of the story has been told. And in this case study one can see the difficulty that southern jurists, slave-owners, and litigants had in dealing with the central tendency of the slave law in contrast with considerations of humanity and justice.

"The Forms Have (Had?) a Function" Free Download
Nevada Law Journal, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2014-44

A. BENJAMIN SPENCER, University of Virginia School of Law
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The Official Forms appended to the Federal Rules of Civil Procedure are a seeming anachronism, more appropriate for a much simpler time that hardly characterizes modern day federal civil litigation. Perhaps the form for a negligence complaint is the most striking in this regard, offering only that at a certain time and place “the defendant negligently drove a motor vehicle against the plaintiff,? causing harm. Not only does such a complaint fail to typify the negligence claims one might find on any federal docket, but it neither seems to reflect the much greater complexity that characterizes modern litigation and life in general.

What then could be the continuing point of having the forms at all? Indeed, that is the question the Advisory Committee on Civil Rules (“Advisory Committee?) has asked and answered quite recently: It has concluded that the Official Forms no longer serve any useful purpose and may therefore be discarded into the waste bin of history. Seemingly without much further thought, the Standing Committee promptly concurred, putting the forms on an all-but-certain course toward oblivion.

Might it be true that the forms have outlived their usefulness? And if no longer of any use, were the forms ever of any real utility? On the occasion of the pending abrogation of the Official Forms, this article takes the opportunity to review the history and use of the forms, finding that they had more value than the current rulemakers cared to acknowledge: The principal function of the forms was to reify the liberal vision of the Federal Rules and to guard against deviations therefrom. Unfortunately, as that liberal vision has given way to a more restrictive view in what Stephen Subrin refers to as the “fourth era? of civil procedure, the unyielding simplicity and permissiveness of the forms have become too much for the otherwise changing system to bear. Below, then, is a eulogy of the forms.

"A 19th Century Data Goldmine for Legal Scholars" Free Download

ROBERT W. DIMAND, Brock University - Department of Economics
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TERENCE HINES, Pace University
MICHAEL O’REILLY, Independent
THOMAS JAMES VELK, McGill University
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Nineteenth century empirical legal studies, certainly those with an economic, social, political or historical element, are unlikely to be wholly satisfactory to the lawyers, scholars or academics who conduct such work. Necessary data is frequently unavailable, imprecise, excessively aggregated, not uniform across space and time, and collected by unprofessional or at least procedurally inconsistent agents. We have discovered and begun to use a little known gold mine of data, uniform across the United States, recorded every two years and, in some cases, available for other developed nations. We have been reporting the existence of this treasure trove and conducting sample studies using it, and have presented our findings at meetings conducted by the Smithsonian Institution, the American Economic Association, the Canadian Economic Association and other scholarly gatherings. Legal scholars who believe in the importance of hard numbers describing economic, social and even political information will be interested in our collected material and studies.

The data gold mine consists of several separate deposits. The first is the U.S. Official Register (OR), a rare set of documents. The Library of Congress has a complete set and there may be enough surviving volumes scattered around the country in research libraries and specialists' collections to create a few more sets. The Official Register was first published in 1816, then biannually in odd-numbered years, the title changed several times, and responsibility for publication moved between several government agencies. Recorded in the OR is data describing the birthplace, name, occupation and then current workplace of every person receiving a salary-type payment from the U.S. Federal Government. Most importantly, postmasters' salaries in the OR were a direct function of the amount of business in each individual post office. Thus this salary data provides an excellent proxy for local business activity every two years for every town and village in the United States and territories.

The second important data source is the annual reports of the Postmaster General (AR), along with similar materials from other countries, Canada in particular. In a previous essay, we showed how the AR's data on postal money orders flowing into and out of former Confederate States versus the Union States flows in Post Civil War America can be used to measure the rate at which the nation recovered to a healthier "balance of interstate payments" between 1865 and 1890. Constitutional experts might find such information useful in tracing the impact of the post-Civil-war amendments. Since AR data is broken down by states, and available annually, we claim the AR-derived “business cycle? data is better than the competition’s.

Postmaster cash books are a third data source. The OR and AR are national in scope, report at the micro level, adhere to a uniform standard and appear annually (AR) or biannually (OR). Cash books are valuable and interesting, but “opportunistic?, rare, and not national. The Post Office Department issued ledger type cash books to postmasters. In these, the postmaster kept records of the number and value of each individual money order sold and cashed at his post office. Some books also required the listing of the post office at which a money order sold was to be cashed. The actual books were not intended to be kept after the required monthly or quarterly reports that were submitted to the Post Office Department. Thus, they were usually destroyed so existing copies are rare and so do not provide a national view of money order business. However, those that do exist provide extremely detailed data on the day to day activity at individual post offices. Ledgers that detail the destination of issued money orders will reveal not only seasonal patterns in monetary flow, but whether the value of the issued money orders was a function of local or otherwise special changes in the legal, constitutional or juridical environment of the postal district.

Up until now, this potential gold mine of economic, social, political and historical information has been unavailable to the scholarly community, due to the rarity of the documents themselves, the format of the reporting and, most of all, the absence of any fully searchable digitized version of the material. Moreover, no focused, professional effort has been devoted to bring the data to life. We are correcting that with the use of optical character recognition and other procedures. Our project will discuss these data sources in detail, present some small studies of our own, and assist other scholars who may have an interest in the use of this unique information to advance empirical legal studies.

"Metadata Redux: Now You're Telling Me I Need to Provide Metadata to the Opposing Side?" Free Download
The Wyoming Lawyer, p. 46, June 2014

BLAKE ANTHONY KLINKNER, Assistant Attorney General - Natural Resources Division
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Metadata is "data about data." As has been discussed in previous literature, problems may arise for lawyers and their clients when certain kinds of metadata are inadvertently provided to opposing attorneys and parties. However, in other situations, attorneys and their clients may be under an obligation to provide their metadata to opposing attorneys and parties. This article begins by reviewing the case law involving metadata and providing a brief history of the discoverability of metadata. The article next addresses best practices for obtaining metadata at the outset of litigation. Next, the article addresses best practices for limiting metadata at the outset of litigation. The article concludes by commenting on metadata's overall role in the discovery process.

"The Missing and Misplaced History in Shelby County, Alabama v. Holder – Through the Lens of the Louisiana Experience with Jim Crow and Voting Rights in the 1890s" Free Download
33 Mississippi College Law Review (forthcoming 2014)

M. ISABEL MEDINA, Loyola University New Orleans College of Law
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The modern Supreme Court adheres to the principle of facial neutrality and the significance of facial neutrality to equality norms in the context of race. The Louisiana Constitutional Convention of 1898, which restricted the franchise in a number of race neutral ways, and introduced the “Grandfather Clause,? exempting any males entitled to vote on January 1, 1867 and their male descendants over the age of 21 at the date of adoption of the new Constitution from the new restrictions, is illustrative of the very racially conscious ways in which southern state legislatures in the post-Reconstruction Era, deliberately sought to use neutral rules to thwart equality for blacks. This paper explores the Louisiana experience and what it suggests about the Court’s use of neutrality as a primary principle in guiding equality norms. It does so by exploring the recent Supreme Court decision in Shelby County, Alabama v. Holder and the majority opinion’s use of history in its analysis, and restoring some of the history leading up to passage of the Voting Rights Act of 1965, in particular, the Louisiana experience with voting rights in the 1890’s, to illustrate the significance of the historical record in understanding modern day trends and norms.

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Advisory Board

Legal History eJournal

KWAME ANTHONY APPIAH
Princeton University - Department of Philosophy

PETER PRESTON BROOKS
Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University

JUDITH BUTLER
University of California, Berkeley

KIMBERLE CRENSHAW
Columbia Law School

HENRY LOUIS GATES
Harvard University - Department of African-American Studies

THOMAS C. GREY
Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School

DONNA HARAWAY
University of California, Santa Cruz - History of Consciousness

DUNCAN KENNEDY
Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School, Distinguished Research Scholar, University of Toronto Faculty of Law

REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

KENDALL THOMAS
Columbia Law School

IRIS MARION YOUNG
University of Chicago - Department of Political Science