Abstract

Excerpted From: Carliss N. Chatman, Teaching Slavery in Commercial Law, 28 Michigan Journal of Race and Law 1 (Spring, 2023) (173 Footnotes) (Full Document)

Law professors teach classical cases that take place in the shadow of slavery, Reconstruction, and JimCrow without any mention of the context. Such classes often take place on land belonging to Native Americans and in classrooms constructed using funds generated by the “free” labor of AfricanAmericans. Business and commercial law professors, in particular, typically teach as if the law occurs in a vacuum, disregarding the cultural and policy phenomena that help shape the law. Business and commercial law classes have resisted change despite ABA mandates that law schools shall provide “education to law students on bias, cross-cultural competency, and racism.” Public law courses have begun to reference race, either in response to ABA mandates or demands from students. Professors often teach business and commercial law courses as if systemic inequality did not shape the legislature or judiciary when they decided cases involving business principles. Ironically, it was the business norms and emerging commercial law norms that enabled the transactions of persons to occur so seamlessly and efficiently. Moving past enslavement, during the era of JimCrow and retrenchment, the freedom to refuse to contract was a hurdle that only federal legislation and landmark cases could overcome. Business and commercial law actively helped create the social and economic conditions of marginalized peoples. Our classrooms do not reflect this reality.

The Trans-Atlantic slave trade, occurring at a time when public and private actors developed and perfected many of our business and commercial norms, resulted in a shift of status for persons of African descent internationally. Society required the subordination of these persons for what was perceived to be the greater good of mankind as a whole. These structures and their underlying beliefs heavily influence many of our norms today. 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, contributed to the current beliefs of business investors and how communities of color are still governed and supported.

As a result, teaching commercial law in a way that reflects the reality of its foundations requires lessons on not just common law contracts and the Uniform Commercial Code (UCC), but also on issues of equality and justice. Forming a common law contract requires the manifestation of assent, as demonstrated by offer and acceptance, adequate consideration, and the absence of defenses. Persons, both humans and businesses, must have capacity to contract, as those without capacity cannot accomplish the manifestation of assent. Those lacking capacity historically included non-persons and partial persons. The UCC is built on the common law contract framework, with specific rules and exceptions for various commercial scenarios that represent long-standing business norms.

The law school commercial law curriculum is based on the law of the UCC, which includes courses on common law contracts and the UCC, incorporates freedom of contract, and explains the capitalistic goal of private ordering. Commercial laws make commerce efficient, promote enterprise by providing a set of norms that the market can rely upon to trade, and minimize the risk of impermissibly trading across state and national lines. The actions and understandings of the people involved are key to interpreting these concepts and transactions. Commercial norms reflect the society in which they were developed. There is a feedback loop between private ordering--which is rooted in social beliefs--the common law interpretation of agreements, beliefs in the courts, and the public commercial law. The UCC is both a mirror that reflects hundreds of years of commercial practices and a point on the loop that influences future private ordering.

The institution of slavery incorporates all aspects of contracts and commercial law. As a result, slavery enables a professor to take a variety of approaches to pedagogy: it provides material that can be addressed directly through statutes and case law, comparatively through discussions of past and present statutes, and experientially through simulations and transactional drafting exercises. Thus, even in the absence of its foundational nature, slavery would be an apt subject to incorporate into first-year and upper-level courses. When I teach first-year Contracts, I use case law that either addresses slavery or discusses statutes that seek to resolve the impact of the slave trade in a comparative way to more broadly focus on issues of equality and justice, discussing the nature of public policy, how public sentiment is reflected in common law standards, and how those social norms have evolved over our nation's history. However, given the breadth of necessary material in a first year Contracts class, especially a course that has only four credit hours, it is difficult to give these issues the time and treatment they deserve.

In my Core Commercial Concepts course, a UCC survey course covering Articles 2, 3, 4, and 9, I have the time and space to discuss race and the law more specifically 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 this course, I use materials related to slavery directly, comparatively, and experientially. Students read cases in which the enslaved are the object of a contract, and I compare modern norms post-Thirteenth Amendment to what would have occurred pre-Civil War. Thus far, I have incorporated slavery as a review session simulation spanning three hours of class time. A professor could cover the material in smaller parts by incorporating it into discussions of sales (Article 2), commercial paper (Articles 3 and 4), and secured transactions (Article 9). One could also teach the relevant parts in stand-alone Sales, Commercial Paper, or Secured Transactions courses, or even introduce them in first year Contracts if time permits.

As the simulation illustrates, aspects of slavery permeate every area of American law and commerce, and we can use it to teach foundational matters in many disciplines. Business and corporate law courses are dependent on the classifications of persons and property, both real and personal. Classes on business associations or organizations, agency, corporations, unincorporated entities, securities, and mergers and acquisitions have a tendency to focus on an allegedly neutral market, disregarding who develops the policies and how all stakeholders are impacted. Private law courses, which include Contracts and Torts in the first-year curriculum and all business and commercial courses in the upper-level law school curriculum, have a focus on the market and the invisible hand. Professors reserve identity matters for public law courses, or, in the worst-case scenario, for elective courses. This siloing of information fails to reflect reality.

In this Essay, I will explain the methods I use to explore these concepts further. Working in a framework that focuses on classification and status, my students can 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. The goal is to encourage students to question the symbiotic relationship of public and private law, recognizing that public status shapes private ordering in that without a recognition by the state of personhood, there is no freedom of contract. Similar methodologies could be used to show how other marginalized groups relate to law and commerce.

This Essay first discusses how a failure to discuss race and status in commercial law classrooms omits a foundational part of the story, advocating for the incorporation of the study of slavery in private law courses. While other areas of business law can make a case for a neoliberal economics frame, such justifications do not carry weight in the commercial law curriculum, where so many of the international concepts have a foundation in the international market for cotton as fueled by the slave trade. Then, this Essay explains the pedagogical methods I apply to ensure that all students benefit from the exercise. In the classroom, I utilize problem- and case study-based small group discussions, visual aids, and real-time in-class review. Finally, this Essay explains the resources used to teach the simulation and provides suggestions for adoption at other institutions. The simulation provides students with an opportunity to learn about the impact of the institution of slavery on commercial law while reviewing fundamental aspects of the course while engaging with the new material in three ways: reading, application, and assessment.

[. . .]

Today the equality gap, particularly when placed in a global context, has reached unprecedented levels. Capitalism allows the wealthiest of us to self-fund expeditions into space, while the poorest go without necessities like access to clean water and housing. In law schools, we train the lawyers of the future to only learn the law, rather than consider the law's role in creating and promoting systemic inequality. As a result, these issues of race and inequality are examined primarily in public law courses. The typical contracts or corporate law course teaches the elements and the legal theories without questioning the reasoning behind the standards or the context in which the standards were developed. Many believe that our casebooks, already bloated with the cases that must be taught and the concepts that cannot be skipped, have no room for an examination of modern and historical inequalities. As a result, these matters are left to constitutional law, property law, and criminal law, if they are taught in law school at all. Many students graduate without the perspective that comes from examining the history and legal origins, particularly when that history requires confrontation of the ways the law helped to perpetrate mass atrocities.

As professors we owe it to our students to provide them with a more fulsome presentation of the law. Incorporating slavery into commercial law courses helps students gain some perspective on the reasoning behind customs while also providing an opportunity to confront issues of inequality. The focus on their own universities, or even on historical incidents in the area related to the slave trade, can also provide students with an understanding of how the production of cotton and the trade of persons of African descent touched every aspect of the American economy. The goal is to give students a much-needed perspective. Having perspective means that the next generation of law students, legal scholars, and attorneys may not act to perpetuate systems of inequality that slavery originated.

Associate Professor, Washington and Lee University School of Law (BA Duke University, JD University of Texas at Austin School of Law).