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Thursday, January 03, 2013

Emancipation Proclamation, ctd

Annie-Davis-letterFollowing on my post on Tuesday's sesquicentennial of the Emancipation Proclamation and this Faculty Lounge discussion of whether, where, and how the Proclamation should be covered in law school: Consider the letter to President Lincoln from Annie Davis, an enslaved woman in Maryland asking for advice on how she can become free, since her mistress will not release her.

The letter is dated April 25, 1864--almost 16 months after Lincoln signed the Emancipation Proclamation. By its terms, the Proclamation applied only to enumerated states, all of which had seceeded. Maryland (along with Missouri and Kentucky) had slavery, although it remained loyal to the Union. Lincoln obviously did not want to risk alienating those areas that had remained in the Union. In addition, the Proclamation did not reach portions of Louisiana and what became West Virginia, which similarly remained loyal.

The result, of course, is that the Proclamation was of  limited legal effect of its own force. No one considering itself subject to a presidential proclamation was bound by it. Those bound by it did not consider themselves subject to a presidential proclamation. It merely set the stage for emancipation once the Union military captured and controlled areas in the South (Lincoln signed it as an exercise of his Commander-in-Chief power). Otherwise, its power was rhetorical--changing the meaning and purpose of the Civil War and making ending slavery a moral imperative to be carried out in subsequent enactments.

All of which, it seems to me, is worth teaching law students --as a matter of history, politics, and civics (which they may very well not have learned in high school or college) and as a matter of how "law" actually works.

Posted by Howard Wasserman on January 3, 2013 at 12:20 PM in Constitutional thoughts, Howard Wasserman | Permalink


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anon seems to be a bit petty here. The OP notes the subject at issue here is "as a matter of history, politics, and civics" and each can be seen in part by use of specific examples. Such lessons like a moral lesson obtained from something that happened long ago, can provide some insights how law works in real life. The specifics would change as the law change, but, like an example in 1943 or 2003, it would provide insights how the law worked on the books and in practice.

"Justice in Blue and Grey" by Stephen Neff covered this ground some. Citations can be found there, but post Civil War state rulings in former slave states actually held that the EP was a military measure that went into effect when Union troops obtained actual control over the areas. It was not just hortatory. It had express legal effect on slavery & the slaves themselves surely thought so.

Also, it was a result of his c-i-c power. It is not merely that he didn't want to upset border states. The POWER came from the need to attack slavery in the areas under rebellion. The letter is historically noteworthy but it is somewhat separate. It is also worth noting that Maryland ended slavery on its own during the Civil War (as did Missouri). Lincoln did not think the federal government had some general power to end slavery.

Posted by: Joe | Jan 4, 2013 8:56:48 PM

Or be able to spell "American"?

Posted by: James Grimmelmann | Jan 4, 2013 8:46:48 PM

The abbreviation for "continued" is not "con't" but "cont'd." In a few years, we won't recognize Amerikan English, much less understand it.

Posted by: Jimbino | Jan 4, 2013 5:26:52 PM

James: I am sure you are talking about jurisdiction in jest here. In 99% of standard property cases, the jurisdictional issue will be trivial, and any lawyer who attempts to turn it into a (patently frivolous) problem will have difficulty practicing in that town for years to come. Your overall teaching position strikes me as sensible, which cannot be said about many other teaching-related comments I see on lawprof blogs.

Posted by: anon | Jan 3, 2013 10:00:01 PM

It starts when you apply for a variance: you apply to the zoning board of the town, county, etc. where the real property is located, rather than somewhere else. Or when you want to challenge the board's denial, where you file suit. Or when you pick up the formbook to start drawing up a deed, which state's forms to use. Or, when you want to file a suit to quiet title, where it can be brought. All of these choices are applications of a single general principle: judicial jurisdiction over real property exists only when the property is within the court's geographic jurisdiction. The rules are simple (at least at the introductory level, before you start worrying about, say, the power of a court in one state to order a person to make a conveyance in a different state), but it's helpful to bring out the general rule, because it makes sense of a wide range of specific doctrines. And talking early on about jurisdiction over property helps build up good intuition: among law students who will become real property lawyers and draft deeds, among law students who will become commercial lawyers and file UCC-1 financing students, among law students who will become family laywers and deal with couples who have moved between states and have property located in multiple states, and so on.

There are many ways to bring out the principle and the issues it raises. The Emancipation Proclamation, Annie Davis's letter, and Dred Scott all deal with territory issues: when can a state determine the legal status of "its" property within or beyond its borders? I haven't myself taught this theme, but it could work. These are famous examples; they're also vivid; both of which help make the point memorable. They also illustrate the overall coherence of property law: a relatively small number of principles explain a lot, which helps in helping students understand the remarkably large number of doctrines the subject comprises.

As I said briefly over at the Faculty Lounge, I'm with you. I want to make my course helpful to students, who will go on to a wide range of practice areas, some in real property law, some in other areas that build on first-year property (like commercial law and trusts and estates), and some who work in what seem like entirely unrelated areas of law. I'm not teaching 19th century (or 17th century) cases out of antiquarian interest or as part of a liberal arts education. I'm doing it because they provide an effective way to help students make sense out of the legal landscape they will inhabit as lawyers.

Posted by: James Grimmelmann | Jan 3, 2013 8:20:15 PM

Thank you, James, but I'm afraid I need a little more hand holding here. Say, your recent grad, on behalf if their client, is applying for a zoning variance, requesting a larger-than-permitted store sign. Or they are drafting a general warranty deed. How much time, in your view, will they spend on issues related to "jurisdictional power to adjudicate title to property"? And how much will such activity be aided by Lincoln letters?

Posted by: anon | Jan 3, 2013 7:25:58 PM

Howard teaches Federal Courts and Civil Rights, among other courses. He doesn't teach Property. And this blog post isn't about teaching it specifically in Property. So asking him how teaching the Emancipation Proclamation in Property connects to modern property law practice is a bit of an odd question.

But if you want another practical connection to modern practice, jurisdictional limits on the power to adjudicate title to property is a fairly natural one.

Posted by: James Grimmelmann | Jan 3, 2013 5:16:52 PM

When you get a chance, could you explain how exactly reading letters from 1864 teaches students "how 'law' actually works" in 2013? In your answer, concentrate on students of mid- to lower-ranked schools like yours, who will not have a luxury of acquiring essential professional skills via rotation system of a fancy law firm.

In particular, since the discussion seems to concentrate on the teaching of property, let's limit ourselves to that for the time being. Say, most likely property issues your students will encounter are (a) assisting in house purchases; (b) clearing up problems with ownership records and drafting various deeds; (c) litigating property disputes among neighbors; (d) applying for zoning and other variances and appealing unfavorable decisions. I am sure your lessons about Lincoln, seceding states, and letters from enslaved persons are incredibly useful in this line of work. Just tell us how. (I am hoping for something more than "a lawyer well-versed in intricacies of 19th century emancipation debates will totally draft a better quitclaim deed for you").

Posted by: anon | Jan 3, 2013 2:52:54 PM

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