ROOTS

The Legality of an American Slavery

Introduction

February 1 is known as National Freedom Day in the U.S. It’s also the start of Black History Month, the annual celebration and triumph of the descendants of African-Americans. This year, President Obama has also indicated that National Freedom Day will also be the first ever National Slavery and Human Trafficking Prevention Month. For this reason, Blawg Review #249 will follow the theme of African slavery in America, using the model of Alex Haley’s Roots: The Saga of an American Family.

Haley’s novel traces his family roots back six generations to one of his African ancestors, in the process telling a compelling story of survival and resilience. This post will focus on various topics within this narrative, starting from his earliest ancestor in Africa, down to Alex Haley himself. It’s also in part my story, as a Canadian of (more recent) African descent whose family friends as a child included (among others) former Nation of Islam members that evaded the draft during Vietnam by moving to Toronto. Their oral traditions, often told sitting around a campfire in the Canadian north, became part of my own Roots.

 

Canada has an complicated relationship with American slavery, being one of the final destinations of the Underground Railroad. Although the Song of the Free refers to Canada as a place of safety, it is also “a cold and dreary land” where many faced rampant discrimination encoded in legislation.

Frustrated by the lack of opportunities in Canada, thousands even sought “repatriation” back to West Africa by the British during the late 18th century. Canada remained part of the British Empire until 1867, and even then held on tightly to its British roots. The Queen of England continues to be our official figure-head of state.

Perhaps ironically, it was the threat of an American invasion of Canada that was one of the major impetus for independence, just years after the Emancipation Proclamation in the U.S. Canadians have always been rather wary of being “freed” by their neighbours.

7. Kunta Kinte

Kunta Kinte was born around 1750 in the town of Jufure, Gambia, Kunta Kinte to Omoro and Binta Kebba of the Mandinke people. In 1767, he was kidnapped at the age of 15 and taken to the shore, stripped and branded, and placed on a ship for a three-month voyage to Annapolis, MY.

Most immigrants to the Americas have a much more pleasant journey than Kunta’s Middle Passage voyage, but face just as strong xenophobia. Kevin R. Johnson speaks to current anti-immigrant sentiments today,

Unfortunately, racism and nativism at some level influence the views of some people about immigration and affect the national immigration debate… Check out the comments on many blogs or on many news stories on immigration if you want to get a sense of the racial sensitivities — and, in some instances, raw [hatred] and racism — in the discussion of immigration…
In contemplating immigration reform, policy-makers and the public need to acknowledge that U.S. immigration laws and their enforcement have disparate racial and national origin consequences. This has been well-documented. It is rather obvious that the U.S. immigrations laws affect more people from Mexico than Denmark, from China than Iceland, from India than New Zealand, from the Philippines than Sweden. Importantly, many people of color from the developing world find it much more difficult than persons of European ancestry from the western world to come to the United States.
That is not to suggest that the current laws, as well as all changes to the immigration laws, which have disparate racial and national origin consequences, are per se racist. But it is to say that in formulating the laws the nation should be aware of the racial and national origin consequences of its immigration laws and reforms.

After arriving in America, Kunta was sold at the slave market to a plantation owner in Virginia. Rick Hills recently related his experience of eating in a former slave market, and questions the lack of slavery landmarks in the U.S.,

Anyone who has read Walter Johnson’s searing account of the New Orleans slave markets can imagine that eating inside a slave market can have the chilling feeling of eating inside, say, a barracks at Dachau… Slavery’s physical landmarks and artifacts seem mostly invisible in th[e] realm of public history…

There is something deeply odd about the absence of a major research and educational center about slavery in Washington, D.C., New Orleans, or elsewhere on the beaten path of tourism and public history. Have African-American organizations not made the creation of such a museum a priority? Or is the existence of our “peculiar institution” still too embarrassing and emotionally painful for us to make part of the standard docent’s circuit on the Washington Mall?

Not so for Canadian museums, who are presenting a whole range of events through Library and Archives Canada for Black History Month in our nation’s capital. One of the events is celebrating William Neilson Edward Hall, whose parents were freed slaves from America. Hall was “the first Black person, the first Nova Scotian, and the first Canadian seaman to receive the Victoria Cross, the British Empire’s highest award for bravery.”

Hall was provided the award for his actions during the Indian Rebellion of 1857, where Hindu and Muslims fought together against the British in a vain attempt to gain their freedom, a conflict sparked in part by the East India Company’s attempt to convert both groups to Christianity. Hall was one of only two survivors on the HMS Shannon, whose job during the Siege of Lucknow during was to breach the walls of the Shah Najaf mosque where Indian militants were holed up. When Hall died in 1904 in Nova Scotia, he was buried without military honours in an unmarked grave. Eleven years later he was relocated to Hantsport Baptist Church, where a monument was erected.

Over a century later, Hall is being celebrated by the release of a stamp by Canada Post today.

Most African slaves and their descendants were more interesting in fighting against European powers, rather than fighting for them. When Kunta was relocated to Virginia, he was renamed by his slave-masters as “Toby.” He refused to adopt the name, and attempts to hold on to his African identity. Although syncretism was prevalent in West Africa, most of the Mandinke people were Muslim, and Islamic beliefs were especially persecuted in the Americas. Dr. Sylviane Diouf relates in her book, Servants of Allah: African Muslims enslaved in the Americas, that French missionaries record a special stubbornness by African Muslims in adopting the Catholic faith.

These religious freedoms still play themselves out today, especially with controversies over Muslim attire in France. Islamophobia watch notes that Canada has expressly chosen not to follow the path chosen by France, as the Canadian Charter of Rights and Freedoms provide the right to women to wear what they want. Hugh McIntyre of Freedom is My Nationality thinks it’s the right move (his nationality is Canadian, incidentally). And according to Adam Ozimek, we’re still a lot freer in Canada than in the U.S.,

The true north really is strong and free these days. According to the Heritage Foundation’s 2010 Index of Economic Freedom, Canada now enjoys a greater degree of economic freedom than the United States. They enjoy the most economic freedom in North America, as it were.

Eugene Volokh discusses religious exemptions of a different type, from mandatory autopsies for executed killers in Johnson v. Levy, and presents a 1999 article, A Common-Law Model for Religious Exemption.

Things come to a point when Kunta has enough and decides to run away. Once caught, he is given the choice of castration or amputation of his foot. The implications of each choice weighs heavily on him, one preventing him from ever having a family, the other ensuring he will never have his freedom.

In addition to the runaway Maroon communities, slaves were notorious for their violent uprisings on plantations. The most successful of these slave revolts was in 1791-1803 in Haiti, resulting in the first republic ruled by people of African decent. According to Diouf, one of the key leaders in the Haitian revolt was a Muslim Jamaican named Dutty Boukman, his surname a reference to the book (a Qur’an) he carried.

Haiti is in the news these days for some very different reasons, but it provides an opportunity to understand the background behind this country.

Anthony Morgan, the current President of the Black Law Students Association of Canada (BLSAC), and a third-year law student at McGill University, provides some important history behind the Haitian revolution on The Cor,

…there is a long and relatively unknown history of deliberate subjugation of Haiti by government and corporate leaders whose actions and inaction have resulted in the effects of the recent earthquake being exponentially greater than they ever should have been. Thus, in the wake of the recent earthquake… you may see that Haiti is much less a victim of a tragic and inexplicable act of God and more so the victim of a succession of non-Haitian capitalists and racists who were adamant on ensuring that a republic governed fully and freely by former Black slaves could never emerge to show the world that yes, Blacks can successfully govern their own affairs.
…before the revolution Haiti was the crown of the Caribbean as it was the richest colony of all of Europe’s holdings at the time. This is largely because it produced 80% of the world’s sugar. It is also important to note that this was at a time when the Trans-Atlantic Slave Trade was a major source of economic gain for North American and European powers, who used un-free labour of Africans to amass the wealth that allowed these regions to enjoy otherwise unimaginable luxury and leisure and which would later drive the West’s Industrial Revolution (also built on the backs of Blacks, through the use of exploited Africans who, in Africa, extracted the natural resources used to build Western cities, factories and products of the Industrial Revolution). Thus, when the slaves of Haiti began to rise up, Western powers deployed their fullest possible efforts to quash this freedom movement. They did this in order to protect the immense profits gained from the trade of Black human beings.
Europe and North America’s fear of Haiti’s freedom fight was rooted in not only the prospect of losing the world’s richest colony, but also the prospect of the collapse of the entire slave-trade. They worried that the latter would result if enslaved Africans learned about the existence of a successful slave rebellion that culminated in the emergence of a state outside of Africa, ruled by free Africans.
In the end, the Africans of Haiti triumphed. However, while they celebrated jubilantly, the dark-hearted of Europe and North America began a global campaign of retribution and damage control. To prevent the still-enslaved from being inspired into rebellion and ultimately debilitating the West’s deplorable trade, they decided to respond with a full (though unofficial) embargo against Haiti. The aim and effect was to starve the country into total economic atrophy. This, of course, resulted in mass suffering and literal starvation of Haiti’s people and allowed the West’s slaveholders to portray Haiti as an example (especially to those still enslaved) of why slaves should accept their position within this inhumane institution. To justify this embargo, all Western powers decided to refuse to acknowledge Haiti as a legitimate state.

Richard Albert, another Canadian who is an Assistant Professor at the Boston College Law, speaks to what all of us owe to the Haitian people on the Huffington Post and Race Talk,

The death and disaster in Haiti are the direct result of the world’s failure to repay its greatest debt to a heroic nation whose citizens stood up for freedom at a time when others wilted in the face of tyranny….

Today’s stable and prosperous democracies–countries which owe their stability and prosperity in large part to the Haitian Revolution–have been derelict in their duty to redress the harm they have done to what was once the pearl of the Antilles. The world’s great democracies have been built on the bloodied backs of Haitians, and the beneficiaries of Haiti’s sacrifices have yet to acknowledge their complicity in Haiti’s impeded development…

Since rising nobly in a glorious yet improbable victory to win its independence, Haiti has languished in despair, contrary to the auspicious beginnings that the Haitian Revolution foretold. Only twenty years after defeating the French, Haiti was forced to pay a sum of $21 billion to France in exchange for official recognition from the international community–a crippling sum for a young nation still recovering from the devastation of slavery and the aftermath of war. And as if that were not enough to mire a nascent state in the depths of ruin, Haiti endured, though barely survived, civil wars and foreign-led coups during its first hundred years of independence…

Haiti, the mother of liberty and the axis of freedom, has been the catalyst for many of the human rights victories we take for granted today. For by staring down the forces of tyranny, defeating their French imperial oppressors, and casting the decisive stone against the expansionist designs of Napoleon Bonaparte, the brave people of Haiti stood as the embankment against the tide of tyranny that threatened to sweep much of civilization.

And just as Haiti stood up in 1804 for freedom in the world, it is now up to the world to stand up for Haiti.

The world is trying to stand up for Haiti, lawyers included. Pam Smith at Legal Pad covers a San Francisco lawyer who got caught in the Haiti earthquake when on business there, trying to build up the judicial system there.

Haiti Quake Shakes Court Planners from Cal Law on Vimeo.

Their project is probably set back some after the recent disaster.

Todd Harrison at Precedent Magazine outlines some of the initiatives that lawyers have undertaken in the Haitian relief. The ABA Journal covers how the Florida Bar is asking all lawyers in the state to contribute a single billable hour, which in total would amount to $17 million, and the story of Daley Thuillez, the pilot/lawyer who flew to Haiti with supplies and back with passengers on his Pilatus PC-12. Even more refreshing is that Big Law is chipping into the relief effort too. Could this be what Tech Law Notes calls an “online donation revolution?” One partner who traveled to Haiti said,

I think the best way I can describe it is that I saw things I wish I’d never seen. I was asked to assist in medical treatment care in ways that I thought I never would or could.

As a law student with a background in emergency management who has traveled to disaster zones, that’s probably the most accurate description of disaster relief possible.

David Badertscher says that bloggers can do their part by letting others know on their site how much destruction the country has faced. For example, Eric Turkewitz shares images of the presidential palace, before and after the earthquake. Bloggers can also participate in microvolunteering, by tagging photos and searching for missing people. Grassroots collaboration can be found on the Crisis Commons, and the ABA has a Haiti Earthquake Legal Resources page.

A more significant building that has fallen is the Grace House of Hope orphanage, which is receiving $50,000 from Kirkland & Ellis, in a country where as much as 8% of the population may be orphans. Not all orphans in Haiti though are children without parents,

The threat of trafficking for the purposes of adoption or prostitution becomes much graver during disasters like the current one in Haiti, which has left thousands of children orphaned or unaccompanied. Even before the earthquake, trafficking and kidnapping of children was a problem in the Western hemisphere’s poorest country, and the post-quake chaos has reportedly made things worse.

In one case, a Canadian pastor told reporters that a man offered to sell him a little Haitian boy for $50. He refused.

We probably wouldn’t be hearing about it though if he accepted. The situation for children in Haiti is dire, and Andrea Carroll laments that 225,000 children in Haiti (2/3 girls) are sent into domestic slavery out of poverty.

Even philanthropists can be taken advantage of though. The Attorney-General of Alabama is warning citizens about fraudulent schemes that could deceive potential donors. The Attorney-General of Mexico is raising awareness about the existence of slavery today.

Some are suggesting policy measures in Haiti that could have a larger effect. Alex T. Roshuk, a New York State attorney with two law degrees from Canada, suggests temporary immigration relief for Haitians into the U.S. The best way to help Haiti though, might be to cancel its debt. Words can kill in Haiti, and Rebecca Solnit offers some strong critique of media coverage and depictions there.

A far less famous slave revolt than Haiti was one in Bahia, Brazil. João José Reis documents in his book, Slave Rebellion in Brazil: The Muslim Uprising of 1835 in Bahia, that these African slaves were waging a jihad to establish an Islamic state in Brazil run by shari’ah laws. In fact, Dr. Diouf notes that jihads in West Africa were the most significant collective response by Africans in their attempt to stop European slavery and expel colonial powers.

Probably not what Obama had in mind.

In Brazil, it resulted in mass forced conversions to Catholicism, and a deep unease over importing further Africans into the country, cited as one of the possible reasons for that country’s abolition of the slave trade.

Allegations of jihad take a different meaning in the modern context. The big decision by the Supreme Court of Canada this past week was with Guantanamo Bay detainee, Omar Khadr. The Court ruled that Khadr’s Charter rights to life, liberty, and security of the person had been violated, but that the judiciary cannot order the Prime Minister to seek his return. Canada is going through its own debate about the separation between the executive/legislature and the judiciary, and legal academics and politicians are already weighing in.

Khadr remains the only citizen of an industrialized nation at Guantanamo who has not had his government at least try to seek his return.

Khurrum Awan sees the ruling as an opportunity for opposition parties to claim their stake if citizens unite against government inaction,

In making this decision, the Court has been mindful of the separation of powers between the executive and the judiciary, and has struck an appropriate balance between its obligations to protect constitutional rights while not unduly interfering in how the government acts in policy-making areas. However, the Court’s ruling has provided the opposition with an opportunity to continue building an already developed, critical narrative of Stephen Harper’s attitude towards democratic institutions and constitutional norms.

Dr. Dawg of Dawg’s Blawg said,

…if the Charter can’t bind governments when its very purpose is to bind governments, then a knife has just been taken to it by the Supreme Court…

Is the government really not required to take positive measures to uphold Charter rights? Can it sit idly by and knowingly permit a citizen’s rights to be infringed, refusing to act within its authority to protect that citizen? The Supreme Court of Canada says yes. But if that is the case, 24 (1) [judicial remedies] rings very hollow indeed: how does the victim of injustice obtain his remedy? How is he made whole?

Law student James Gotowiec of The Court provides a suggestion this morning of a remedy that might be possible,

In the end, the value of this judgment for Khadr may depend on the decision in a case currently under reserve. In City of Vancouver v. Alan Cameron Ward (Case No. 33089), the Court has been asked to determine whether damages are available as a remedy under s. 24(1) when a Charter breach was not accompanied by a tort, did not result in loss to the plaintiff, or was not the product of bad faith. If they answer yes, perhaps Khadr will be able to turn the Court’s clear finding of an ongoing s. 7 breach into an award of damages. Of course, how that would be valued is anyone’s guess. How one quantifies damages flowing from seven years spent in a legal black hole may be Khadr’s next question for the Supreme Court.

Antonin Pribetic, “The Trial Warrior,” comments on the decision in light of principles of international law,

While the recognition of Canada’s international law commitments is laudable, it is equally confusing; insofar as the majority’s reasons conflate conflict of laws (private international law) with public international law. Clearly, Canada has entered into various multilateral and bilateral conventions or treaties (some of which create reciprocal rights and duties between state-state or investor-state, while others create or promote private rights of action). In any case, all such international instruments are implemented domestically via legislation.
However, customary international law principles, such as universal jurisdiction or jus cogens remain elusive (e.g. Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675, leave to appeal refused, [2005] 1 S.C.R. vi). The line between custom and convention is not easily drawn, as in the case of domestic versus international (or transnational) public policy.

Charon QC, on the other hand, outlines the judicial defeats of terror laws enacted in the U.K. after a decision reported by the Times,

The justices condemned the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Measures) Order 2006 as oppressive and paralysing. Lord Hope of Craighead, the deputy president of the court, said that those affected were in effect “prisoners of the state”.
He added: “This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament.”

The justices said that those affected by the orders had not had the opportunity to challenge the grounds on which they were suspected, but not charged, of financing terrorism.

Scott H. Greenfield wonders addresses criticisms by Paul Cassells and others over why the underwear bomber was read his Miranda rights, because apparently he “clammed up” right after:

Whether Miranda warnings change the game or not (and given how many suspects vomit inculpatory statements despite the warnings, the efficacy of the warnings is very much in question), there’s little doubt that it would be far easier for law enforcement to obtain information without them. Of course, it would be far easier for law enforcement to obtain evidence if they could just break into homes at will. In fact, they might be really, really effective if there were no limits on law enforcement at all. Does anyone doubt this?
But here we have a man attempting to blow up a plane filled with Americans, in American airspace, over American soil, seized by American law enforcement. And the views of a newspaper, a former federal prosecutor and a former federal judge is that the FBI blew it, and blew it huge, by adhering somewhat to American law. Mind you, nobody’s even mentioning the first 50 minutes of pre-Miranda custodial interrogation.

…It’s disconcerting that voices who have, in their former lives, sworn fealty to the Constitution, and a newspaper whose ability to express its views depends on it, are so quick to scream that law enforcement blew it when they comport themselves (somewhat) with the rules. If they’re so quick to toss out the Constitution when it comes to interrogation, can it be much of a surprise that a little torture doesn’t bother them?

Speaking of torture, which was routinely used to keeps slaves in check as well, Jack M. Balkin has a transcript of John Yoo on the Jon Stewart show, talking about the Torture Memos. Balkin adds,

…the torture memos were written not to define “torture” with respect to new situations where the statute was unclear; rather they were written to allow the CIA to get around the legal ban on torture, even to the point of arguing that the torture statute would be unconstitutional if applied to persons acting under the direction of the President as commander-in-chief. The torture memos were not a hypothetical lawyer’s exercise to guide future conduct. They were written in order to ensure that members of the CIA would never be prosecuted for torture.

Jonathan H. Adler at Volokh notes that Yoo will likely be cleared of misconduct, and that torture techniques were approved from the highest levels of the White House.

Bill Otis still thinks that “our hypnotic obsession with Miranda” may one day result in “preventable catastrophe.” Problem is that the ticking-bomb scenario so famously advanced by Dershowitz has never happened in history – ever – and all cases of torture are conducted without foreknowledge that an individual might have this type of information.

The only thing tougher than proving that torture is officially sanctioned is demonstrating how evidence obtained through torture can be used. Kevin Cole highlights these substantive and procedural evidentiary problems through a paper by Kai Amboson on The Transnational Use of Torture Evidence, and Glen Greewald suggests that judicial warrants for surveillance actually makes intelligence more effective by focusing on more pertinent information.

As Gideon points out, violations of constitutional rights are not simply “technicalities.” We might as well just replace our legal lingo with “something… something… something… dark side.”

It would make the debate so much simpler.

6. Kizzy Waller

Kizzy Waller is Kunta’s daughter, through his wife Belle. Like most slaves, Kizzy did not have access to education. She was secretly taught how to read by her master’s nice. When it was discovered that Kizzy was literate, she was separated from her family.

Saying goodbye is always hard to do. This week we’re saying farewell to Rob Ambrogi at Legal Blog Watch, who won’t be blogging there any more. You can still hunt him down on Law Sites and Media Law.

Kizzy is then sold to a man in North Carolina named Tom Moore, who violently rapes her. Rape is obviously a cruel act – some would even say inhumane. But Prof. David Cassuto of Pace Law points out that comparing animals to humans though is bound to lead to folly. This is what he quotes over at the Animal Blawg,

Intelligent? Pretty much all they [dolphins] do is swim, eat, & talk to each other. Oh, there is one more thing they do…
For those who think of dolphins as oh-so-sweet, innocent cuddly creatures, um, male dolphins often gang-rape females.
Liberals are always trying to minimize the distinctions between man & beast, man & woman, man & God, as well as good & evil.

Hostility towards black women may not always be as violent in today’s context, but there are legal recourse towards such incidents as well. Yolanda Young points out the case of Kamisha Menns, a Jamaican-born lawyer who filed a complaint against Howrey for creating a hostile work environment,

At some point after moving to Brussels, Menns says in her complaint, she began being removed from projects despite receiving compliments on her work from several partners. She says her workplace was shifted to a different floor from that of other lawyers. When she reached out to the office’s managing partner, Trevor Soames, the complaint alleges, Menns was told “that because she was an ‘impressive woman’ Ms. Menns made Howrey’s white employees feel uncomfortable.” The complaint alleges that Soames also told her that because she was the first black associate to work in the office, the office staff’s treatment of her might be influenced by the fact that “they had never before been forced to be in a ’subordinate position’ to a black person.”

The complaint goes on to allege that the situation only got worse when she reached out to firm leaders, including the Washington-based diversity committee and CEO Robert Ruyak. In a June 2, 2009, meeting, a day after Menns sent an e-mail to Ruyak and eight members of the diversity committee outlining the allegedly discriminatory treatment, Menns was fired.

Yolanda hosted Blawg Review #195 on Martin Luther King Day last year, and it’s still worth checking out.

It’s not just black women that have it tough in law firms. Ms. JD updates us on CBS’s The Good Wife, where female associates are being relegated to clerical work

Sometimes employment lawsuits go too far. Michael Young of Who’s the Boss suggests that the Supreme Court of California’s ruling in Chavez v. City of Los Angeles could help reign in attorney’s fees for employment lawsuits in that state. The employee in Chavez sought to turn a $11,500 employee verdict into an attorney’s fee application for $870,000, a claim that was denied on appeal by the court:

WHAT’S THE IMPACT OF THIS CASE?

Here’s the $870,000 question: Will Chavez have any impact on either (a) the filing of unmeritorious or marginal employment lawsuits; or (b) the overlawyering of simple employment lawsuits?

One could say that the California Supreme Court is sending a message to the bench and bar that the GELP [Giant Employment Law Pendulum] has swung far enough in favor of the employees, and it is now time to bring it back, if but a little. Look at the Roby decision’s reining in of punitive damage awards (blog here). Hernandez’ decision to allow limited workplace surveillance (blog here). The decision to allow the appellate court’s Chau (Starbuck’s tip) decision to stand (blog here and here). And now Chavez – it’s ok not to award attorney’s fees to successful employee plaintiffs.

But will anyone listen? Now that the Court That Must Be Obeyed has expressly blessed the trial court’s discretion to deny attorney’s fee awards to employee plaintiffs who recover less than $25,000 in unlimited civil actions, will the trial courts now start exercising that discretion?

Now that employees who obtain only relatively small recoveries can be denied their attorney’s fees, will plaintiff’s attorneys be more selective in the cases they take? Will they litigate the smaller cases more in line with their actual value? Will they be sufficiently discouraged to overlitigate the small ones such that the settlement value of the small cases are actually in line with the claimed injury suffered by the employee?

Will there be more balance between the interests of employers and employees in California courts? Is that Pendulum swinging back?

The jury is out…

Speaking of mega-damages, Erik Magraken of BC Injury Law presents a case with $12 million damages for personal injuries awarded by a jury in Ciolli v. Galley. As he explains in the post, we’re not normally allowed those kinds of numbers in Canada, and the case is already heading to the Court of Appeal.

5. Chicken George

Chicken George was the only child of Kizzy Waller. He was conceived through rape by his mother’s master, and gets his name from his profession as a cock-fighter. Many slaves were raised by parents who were not biologically theirs, by virtue of prevalent rape and routine separation of families. Adam Kolber of the Neuroethics and Law Blog is discussing fractional parenting of another kind, of surrogacy in A.G.R. v. D.R.H., and artificial insemination resulting in people having several parents.

At the age of 18, Chicken George meets a fellow slave named Matilda. They get married in 1827, and eventually have eight children. In the television adaptation of the book, Matilda says to George at one point, “I don’t see you with my eyes, I see you with my heart.” It’s awfully reminiscent of the line from Avatar, where the Na’vi greet each other with, “I see you.”

Although Charon QC already mentioned Avatar in Blawg Review #225, the topic is worthy of another incarnation here given that sales have surpassed $1 billion. Mitch Kowalski of the Legal Post points us to some strong property and market economy themes outlined in David R. Henderson’s review,

Some writers who are generally my allies in favor of capitalism and free markets have been critical of the movie Avatar… But I don’t think Avatar is an attack on capitalism. One could leave the movie and have no idea, based on just the movie, about James Cameron’s view of capitalism. And while it did have some clichés (most movies do), I didn’t find it loaded. So what is Avatar? In fact, Avatar is a powerful antiwar movie – and a defense of property rights. For that reason, I found it easy to identify with those whose way of life was being destroyed by military might.

David Boaz also claims there are strong property rights themes in Avatar, and says that there is some subtle right-wing appeal for those looking for it. Dante Atkins resists ideological fault lines, while Mark at Libertas et Memoria sees it much simpler:

I like a good story and all, but I also am a fan of humanity. If I see a movie and it’s aliens vs. humans, I’m rooting for the humans… If the movie is humans vs. apes, I’m rooting for the humans. Nothing against apes, but I’m going to root for the humans. Now, if the movie was apes vs. aliens, I’m going to root for the apes. My default position, in the absence of humans, is to root for the Earth-team. So, if we ever see the movie Dolphin vs. Predator, I’m cheering for the dolphin.  But if it’s humans vs. aliens, I’m cheering on the humans. What about humans vs. orcs, you say? I’m on the side of the humans. And that goes for wood elves, replicants, Cyclons, whatever. If it’s somebody else vs. humanity, I want the humans to win.

Would he feel the same way if he knew that the dolphins have a dirty little secret?

Eric Brown says forget about Avatar, we should all go see the Sundance film, Casino Jack and the United States of Money, a wild tale about Jack Abramoff, campaign finance, political corruption, and “sex slaves in the Mariana Islands.” Probably not as much right-wing appeal here, but you’ve got to wonder if Obama is going to stop this type of slavery as well (or eve be able to). The film’s director, Alex Gibney, does provide some commentary about campaign financing,

…as bad as we think it is, it’s even worse… and every day it’s getting worse and worse and worse… Very good people may be turned to a very corrupt direction, because they spend so much of their time trying to raise money… the only hope is for people to get angry.

Some angry farmers in Canada are looking for their marketing freedom, after the Supreme Court of Canada declined to hear an appeal in Canadian Wheat Board v. Attorney General of Canada. If you’re looking for some raw milk with those wheaties, you have the freedom to in Ontario after a ruling before a justice of the peace in Newmarket. I’m just glad that chickens do not provide milk, raw or otherwise (so-called chicken milk is actually produced from meat).

Todd Harrison gives us a backgrounder to the raw milk saga on the Prededent Law blog. But Connie Woodcock in The Sun isn’t so enthusiastic,

I’ll put my biases right up front. I’m a dairy farmer’s daughter and I wouldn’t drink raw milk if you paid me… But hey, you want food freedom. And besides, raw milk tastes so good, right?
…So while the Ontario government mulls over an appeal — and I hope they do — drink all the raw milk you like. Go nuts. Feed it to your kids. Ignore the danger and let’s hope nobody gets sick. Or dies.

If someone does unfortunately get sick, Bill Marler can say, “I told you so.” His post from last month covers some of the personal injury cases he’s handled directly related to raw milk infections, and he mentions a current warning in Saratoga County over possible Campylobacter contamination.

Besides, we all know that milk is a gateway drug to much more dangerous drugs like crack cocaine.

4. Tom Murray

Tom was the fourth son of Chicken George and Matilda, and becomes a blacksmith as an adult. Tom marries a Native American slave, Irene. During Tom’s life the slaves are freed, but former slavemasters turn to KKK to vent their feelings towards Blacks. Tom discovers identity of nightriders by etching a symbol on the horseshoes, and takes this evidence to the Sheriff, who in turn tips off the KKK.

Most hate crimes, including those perpetrated by the KKK against blacks, stem from fear. White landowners feared retaliation from former slaves who had been subjected to horrendous abuse and mistreatment. They feared loss of wealth once inexpensive labour supplies dried up.

The Bob Edwards Show recently played a speech from Hollywood actress, Phyllis Kirk, entitled Freedom from Fear,

I believe it is in fear that we commit the crimes of intolerance and prejudice and what seems to me to be perhaps the saddest, most grave crime of all, our resistance to change. Afraid, we fail to see that the change is the natural and good fruit of knowledge and growth. We cling to the familiar because it is familiar and seems, therefore, to be secure. We butcher the unfamiliar and slaughter justice with the same stroke. Frightened, we seek love only for ourselves and forget to search for love in ourselves.

Although it’s not 40 acres, Texas Wills and Trusts Law Online describes why do-it-yourself legal solutions aren’t always cost-conscious as they may appear.

Tom also lived during the American Civil War, where North and South fought over the right to own slaves. Most historians today acknowledge that economics played a far more important role in the conflict than either racism or rights-based advocacy.

Another war is in the headlines this week, this one in Iraq, largely due to former PM Tony Blair’s testimony. Yamin Zackaria is pessimistic of the outcome,

The ineffectual Chilcot Inquiry was never designed to account Tony Blair; rather it appears to have served as a lesson for future Prime Ministers not to make ‘administrative’ errors like submitting dodgy dossiers. Moreover, it gave Tony Blair an opportunity to present his side of the story in a casual manner.

If innocent people were killed because of an illegal war, then a crime has taken place. Therefore, Blair should have faced a panel of experts from neutral countries, selected by the UN. The process would have focused on the legality of the war, and the consequence for the innocent Iraqis; depending on the outcome, it might have formed the basis for a criminal prosecution.

Lawrence Solum discusses the lexicon of legitimacy, as in “The invasion of Iraq does not have a legitimate basis in international law,” but expresses unease over its use because of ambiguity and the lack of theoretical analysis.

Richard Hall thinks it’s unlikely Blair will ever be prosecuted by the ICC for the Crime of Aggression, which the court will attempt (again) to define this summer, because it will lack temporal jurisdiction. Steve M. at Dissenting in Part claims he still likes Obama, who has maintained his Iraq withdrawal schedule, though he’s still disappointed in part over national security issues.

Oh, and in case nobody told you, the Marines withdrew from Iraq this week after seven years – victorious, of course. Everything is going to be hunky-dory there from now on.

It seems that burn pits in Iraq are also becoming the subject of lawsuits, as Jon L. Gelman points out that waste management regulations outside of the U.S. must still comply with the National Environmental Policy Act. Supposedly they can expose veterans to toxic chemicals, which may have some medical effects. Douglas Berman mentions a bill in Kansas, which would provide reduced sentences for veterans dealing with PTSD.

Trauma of a different kind is on Jamie Leigh Jones’ mind, as the former Haliburton employee continues her fight to sue the company after being allegedly raped by military contractors in Baghdad in 2005. The company claims that the contract she signed requires mandatory arbitration in place of litigation.

Erik Gerding thinks the discussion about the role of corporations in society isn’t over, connecting two cases that would appear to be unrelated – the recent SCOTUS decision in Citizen United v. Federal Election Commission, and Google’s conflict with China. Russell McOrmond objects to Secretary of State Hillary Rodham Clinton’s characterizations in her Jan. 21 “Remarks on Internet Freedom,”

Ms. Clinton, and possibly the Obama administration as a whole, are suggesting that the infringement of patents, copyrights, trademarks and related exclusive rights are comparable to terrorist recruitments, and warrant extreme measures to stop.

Watch it Russell… you are either with us, or with the copyright infringers.

3. Cynthia

Cynthia was the youngest daughter of Tom and Irene. She married Will Palmer at 22, and had to endure the full brunt of the Jim Crow laws. The foremost of these were the literacy tests, used to deny African-Americans suffrage. By deliberately excluding African-Americans from proper education, the government was able to effectively deny them the vote, thereby preventing them from collectively influencing or affecting public policy.

The role of special interests in a democracy is still an issue of contention. Although corporations are hardly a disempowered minority, some claim Citizen United will benefit Republicans the most. Chakanya Sethi, a Canadian law student, outlines some of the arguments in the case, and what the fallout might be.

David Oxenford of the Broadcast Law Blog suggests that the implications of Citizen United might be a return of the Zapple Doctrine (23 F.C.C. 2d 707 (1970)), which hasn’t been used in over 25 years. This interpretation of the Fairness Doctrine requires broadcasters to allow a candidate to respond when an opponent has purchased time on their station during campaign periods:

…stations need to treat all candidates running for the same office in the same way – allowing them to buy equal amounts of advertising time on a station, and giving them equal amounts of free time on a station if the candidate appears outside of an exempt program (e.g. news or news interview programs, or on-the-spot coverage of a news event, including most debates)…
With an influx of corporate money into political campaigns, Zapple issues are more likely to find their way to the FCC in coming elections.

Howard Wasserman discloses as a Democrat that he thinks the case is rightly decided, but notes the additional controversy over the SOTA,

…where one stands on the political spectrum seems to dictate where one stands on the question of whether President Obama was right to call out the Supreme Court for last week’s decision in Citizens United…

Of course the President (and any member of Congress) are entirely within the bounds of their structural powers and the doctrine of separation of powers to criticize the Court for its decisions. Especially when there is not much Congress can do to undo the decision.

Robert Sherridan’s response to the SOTU is to quote the First Inaugural Address of Pres. Abraham Lincoln in 1860. Lincoln discussed the Dred Scott decision of 1857, which ruled that African slaves and their descendants were not protected by the constitution and could never be citizens by saying,

…while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes…

Lincoln’s oath of office was administered by of all people Chief Justice Roger B. Taney, who authored the majority opinion in Dred Scott.

If not for Paul Caron, we wouldn’t realize that what Obama was really talking about during the whole SOTU was taxes. Ilya Somin at Volokh says he wasn’t very surprised by the SOTU,

There weren’t many surprises in the State of the Union. However, there were two interesting unexpected twists. First, Obama called for gays to be allowed to serve openly in the military. I’m not surprised that Obama supports this. But I am surprised that he has decided to make a push on that front right now. This is one of the rare issues where Obama and I agree, so I hope he succeeds. Polls say that a strong majority supports repealing “don’t ask, don’t tell,” so this initiative is less of a political risk than it was when Bill Clinton tried it in 1993.
The other surprise was when Obama channeled Sarah Palin by calling for increased offshore oil drilling in order to achieve “energy independence.” Perhaps he will take up Palin’s “drill, baby, drill” slogan as well. On a slightly more serious note, this may be another issue where Obama and I agree (though I doubt that the benefits will be as great as Palin claimed). I just don’t know enough about it to be sure, so I will respect the limits of my own political knowledge. Given all my scholarship on political ignorance, it’s the least I can do.

Same-sex rights continue to be one of the major challenges in the U.S. (we resolved the marriage issue years ago in Canada). Ashby Jones at the WSJ provides an update on Proposition 8,

And now what happens? Judge Vaughn Walker of San Francisco heard 12 days of testimony in the nation’s first federal trial of a ban on same-sex marriage. He said he would schedule closing arguments after final written submissions from both sides, due in 30 days.

Literacy isn’t just about reading, it’s about writing too. Georgetown Law has an audio podcast this week by Terry Lee Wright on her new book, River of Innocents, which covers slavery and human trafficking in the world today.

Emily White is a lawyer who was so overcome by loneliness that she quit her job, moved to a remote home in Newfoundland, and wrote a book about how lonely she was. That’s unusual, even for us in Canada.

2. Bertha George

Bertha became the first descendant of Kunta to enter post-secondary education when she enrolls in Lane College. Although Bertha didn’t study law at Lane, the Weekly Law School Roundup #208 covers some exam-taking tips, as well as how to donate your Lexis points to Haiti, or text for Haiti.

Both Bertha and her husband, Simon Haley, would work as teachers for the rest of their lives. If you’re even faintly interested in ever teaching law in the U.S., Prof. Dan Markel has a running spreadsheet about the current hiring market. Personally, it looks a little too similar to the OCI process. Even law profs were once law students, and Ezra Rosser bookmarks a paper by a law professor Lisa Pruitt, relating her 1L experiences given “her rural, working-class background.”

American readers might be surprised to find that the first black man to study law in North America was Robert Sutherland, a Jamaican immigrant to Canada who also became the first known minority graduate of a Canadian university when he matriculated with honours from Queen’s in 1852.

Our own founder here at Slaw, Simon Fodden, was able to dig up a law school curriculum at Osgoode Hall from 1890 due to a project digitizing legal material. It looks like the subjects back then were not much different than today. One of our contributors, Annette Demers, points out that they’ve been digging through their archives to find a petition by Josiah Henson, the one and only “Uncle Tom,” whose cabin is located in South-West Ontario. Carl Malamud has scanned over 250 years of American federal case law, and is sharing it – free.

Other law professors have something else to teach.

Prof. Stefan Padfield shares his 5-year run as a corporate law instructor, and if that’s not enough to prove to you that corporate law can be fun, Prof. Eric C. Chaffee gives the best Economic Grammy to Boom or Bust:

Prof. Donald C. Clarke gives us his top 10 cases that changed China, for those like being cosmopolitan but aren’t sophisticated enough to regularly apply Google Translate to Chinese news (assuming they don’t filter that too). Margaret Ryznar provides a top 10 weird divorce settlements on the Family Law Prof Blog, proving that the truly bizarre always exists closer to home.

Prof. Franklin G. Snyder doesn’t have a top ten list. He just has ten people with a secret recipe and asks, “Do you know the Muffin Man” at Bimbo Bakeries? Prof. Kevin R. Johnson has 10x10x10 and then some reasons why you should be worried about immigrant detention, and the rise of the private prison-industrial complex.

Above the Law describes how Skadden Fellowship Program encourages law students to exert the freedom to conduct public interest work, something that can only be done in a vibrant democracy free of any fear of retaliation. The BLS Library Blog has a podcast with law student Michael Pope (’10), who received an Equal Justice Works Fellowship to provide legal representation to indigent youth in New York. The fellowship is supported by the New York law firm, Morrison and Foerster LLP, also known as MoFo, a term used colloquially to mean something very different.

African-Americans have an oral tradition of good-natured trash talk often used in school yards which doesn’t use a base ten, but is instead known as “playing the dozens.” Harry G. Lefever describes the phenomenon back in 1981 in Playing the Dozens”: A Mechanism for Social Control,

Playing the dozens is more than a game. It has more than expressive value; it also has instrumental or utilitarian value. In other words, playing the dozens fulfills certain psychological and social functions for those who participate in the ritual. According to Dollard, the dozens developed and were maintained largely because they were a mechanism to displace aggression. He argues that the ritual evolved as an outlet for the display of aggressive behavior which ideally would have been directed against white society. That is, through the ritual blacks were taking out aggression against fellow blacks rather than against their real enemy, the white society…

Abrahams offers quite a different type of explanation. He argues that the dozens developed because of the tensions males face in the American black family structure. “The Negro man from the lower class is confronted with a number of social and psychological impediments. Not only is he a black man in a white man’s world, but he is a male in a matriarchy. The latter is his greatest burden.”7 One way to counteract this strong matriarchal influence, according to Abrahams, is for young black males to use the ritual of playing the dozens as a reaction formation…

A third possible function of playing the dozens is that it has educational value and offers the participants many opportunities to develop their verbal skills. This function is clearly stated by H. Rap Brown: “The street is where young bloods get their education.”

Brown was actively involved in the Civil Rights movement, and joined the Black Panthers in 1968. He converted to Islam in 1972, and is now known as Imam Jamil Al-Amin, currently sentenced to life without prison for the murder of two police officers. Presumably the non-violent methods of social control referred to by Lefever had run their course. Brown also founded an organization that included Luqman Abdullah, who was shot 21 times during a controversial FBI raid this past October. The results of Abdullah’s autopsy are expected later today.

Joshua Gilliland of Bow Tie Law is playing with dozens of a different type. He shows that “there are potentially dozens of metadata objects that can be provided in a load file (usually agreed upon by both parties prior to its creation)” during eDiscovery. It’s all very technical and complicated for the uninitiated, but then litigation is going that direction too as computers proliferate in our society. Lawyers can keep track of all these changes at LegalTech New York, which starts today. Rob Ambrogi provides some of the highlights,

That is when Westlaw will formally unveil its most sweeping overhaul since its move to the Web and LexisNexis will announce what it says will be a major new product for legal professionals, even as it prepares to announce an overhaul of its own research service at a date yet to be specified…

These developments come amid an unusual confluence of events already stirring the legal atmosphere, with Google making its first foray into legal research, Bloomberg Law positioning itself as a serious contender to take on West and Lexis, and Fastcase preparing to deliver free legal research to the iPhone (and the iPad?).

John Wallbillich of Wired GC gives us six iPad lessons for lawyers. But that’s still half of a dozens, so let’s take a look at the six things the iPad is missing. Douglas Berman of Sentencing Law and Policy wonders if the iPad “might alter the resource and technology universe for lawyers, law professors and law students.”

It’s all speculation for us out here in Canada, where we won’t be free to have an iPad for some time yet.

1. Alex Haley

Haley’s story could never have been told without his ancestors narrating their tradition, passing it on from generation to generation. Stephanie West Allem is quoting Diane Wyzga on her own narrative of legal storytelling, but on tips for juries:

Randy Rozek and Gordon Johnson asked me to write about the process of working with the award-winning trial team of Malone and Scarlett to help revise the trial story which ultimately resulted in their $49 million trial verdict. Specifically, Mr. Rozek asked me whether it was possible to expand on my thought process and provide some tips you could use in your own practice. I agreed, although unraveling a thought process is much like recalling a dream.

One of the high points of Haley’s writing career, according to him, was interviewing Malik Shabazz (Malcolm X) in 1963. He later helped Shabazz write The Autobiography of Malcolm X, completing the last chapters after his death, which document his transition out of the Nation of Islam and embracing a more inclusive ideology. In his 1964 Letter from Makkah, Shabazz said,

America needs to understand Islam, because this is the one religion that erases from its society the race problem. Throughout my travels in the Muslim world, I have met, talked to, and even eaten with people who in America would have been considered white – but the white attitude was removed from their minds by the religion of Islam. I have never before seen sincere and true brotherhood practiced by all colors together, irrespective of their color.

You may be shocked by these words coming from me. But on this pilgrimage, what I have seen, and experienced, has forced me to rearrange much of my thought-patterns previously held, and to toss aside some of my previous conclusions. This was not too difficult for me. Despite my firm convictions, I have always been a man who tries to face facts, and to accept the reality of life as new experience and new knowledge unfolds it. I have always kept an open mind, which is necessary to the flexibility that must go hand in hand with every form of intelligent search for truth.

Similar themes and similar misunderstandings can be found between both the African-American experience and Islam, and the two are deeply intertwined as mentioned above. Faisal Kutty mentions a lecture on Muslim “blackface” in Orientalism by Dr. Ariel Salzmann, on “the use of denigrating Muslim stereotypes in quotidian Western European culture.”

Shabazz was born Malcolm Little, he aspired as a young teen to one day be a lawyer, until he as told by his teacher in Mason, MI, “that’s no realistic goal for a n****r.” Fortunately it’s still a goal for many minorities in American today, but one that appears increasingly difficulty to achieve.

The Legal Broadcast Network covers a disturbing trend, where minority enrollment is dropping in law schools even as capacity rises:

While law schools added about 3,000 seats for first-year students from 1993 to 2008, both the percentage and the number of black and Mexican-American law students declined in that period, according to a study by a Columbia Law School professor.

What makes the declines particularly troubling, said the professor, Conrad Johnson, is that in that same period, both groups improved their college grade-point averages and their scores on the Law School Admission Test, or L.S.A.T.

“Even though their scores and grades are improving, and are very close to those of white applicants, African-Americans and Mexican-Americans are increasingly being shut out of law schools,” said Mr. Johnson, who oversees the Lawyering in the Digital Age Clinic at Columbia, which collaborated with the Society of American Law Teachers to examine minority enrollment rates at American law schools…

“What’s happening, as the American population becomes more diverse, is that the lawyer corps and judges are remaining predominantly white,” said John Nussbaumer, associate dean of Thomas M. Cooley Law School’s campus in Auburn Hills, Mich., which enrolls an unusually high percentage of African-American students.

Even with the oral traditions and all his research, Haley had to fill in the gaps in the story with some fiction. The source of his fiction did come under scrutiny, giving rise to a lawsuit for copyright infringement. Haley shouldn’t feel too bad though, because it seems even the judges are doing it.

The Paul L. Bowley Library points us to a decision in the Netherlands which appears to plagarize a blog post by a Dutch lawyer. Mark Masnick at Tech Dirt said,

Now, plagiarism and copyright infringement are two different (though sometimes overlapping) things, but it does seem a bit ironic — and even under Dutch copyright law, this bit of copying could be seen as infringement as well. Apparently, the judges directly cut and pasted the following two sentences:

“in case law and legal literature it is generally held that an embedded link constitutes a publication. After all, the material can be viewed or heard within the context of the website of those who placed the link, and placement causes the material to reach a new audience.”

The exact quote above came from a blog post by lawyer Douwe Linders, who had no idea the judges were going to copy it. While it seems like a simple quote like this should be perfectly legal in any context, let alone a legal decision, the discussion of this notes that while Dutch copyright law does let you quote short bits of content from others for a variety of reasons, it requires attribution. In this particular case, no attribution was provided.

What makes it even worse, of course, is that the quoted/plagiarized/infringing bit might not even be accurate. As we discussed in our own post on the subject, there appears to be significant disagreement over whether or not embedding authorized content could be seen as infringing — and apparently, there is a widespread debate about it in Dutch legal circles as well, saying that it is far from readily agreed upon in the legal literature.

Alex Haley died in 1992, leaving behind two daughters and a son. There is no word of any plans to produce a sequel. The rest of that story is up to you. Haley once said,

My fondest hope is that “Roots” may start black, white, brown, red, yellow people digging back for their own roots. Man, that would make me feel 90 feet tall.

Conclusion

If you enjoyed this taste of “northern flavour” (sic), you’ll be pleased to know that the next three Blawg Reviews are also hosted by Canadians:

• Feb 8 The Trial Warrior Blog
• Feb 15 Canadian Trademark
• Feb 22 Law Firm Web Strategy

The Ontario Condo Law Blog has their own roundup worth reading, the Best of the Blogosphere for December 2009. If you’re still looking to get a better feel for Canadian law blogs, checkout the recent Canadian Law Blog Awards (CLawBies). You’ll note that the best Canadian Law Blog is right here at Slaw, and many of our contributors suggested links to make this Blawg Review possible.

And on that autobiographical note we’ll close.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.