Al Brophy and Ben Kleinman 3L research historical debate societies in the Wilson Library at UNC.
Photo by Donn Young.
Read the full article in the Spring-Summer 2014 issue of Carolina Law.
Not until Jessica Thompson took Al Brophy’s seminar on “Property and Slavery in the Old South” did she learn about North Carolina Quaker slave owners. Thompson, in her third year of law school and a history and peace, war and defense double-major as an undergrad, had grown up near Greensboro, N.C., and was well familiar with Quaker history. But in Brophy’s seminar last fall, she learned how Quakers used a state law granting property rights to religious groups to undermine the legal infrastructure codifying the institution of slavery and allow their slaves to live in quasi-freedom.
The seminar gave her room to investigate the topic of Quaker manumissions, the act of a slave owner freeing his or her slaves, independently. Thompson traveled to Guilford College, where she read minutes of Quaker meetings, and the N.C. Archives in Raleigh, where she found handwritten trial records and affidavits from the early 1800s until the start of the Civil War in 1861. This semester, she’s polishing the paper she wrote for the seminar to ready it for publication.
Brophy, UNC’s Judge John J. Parker Distinguished Professor of Law, teaches property, legal history and trusts and estates. His book to be published this fall from Oxford University Press, “University, Court, and Slave,” explores how Southern academics and judges spoke a common language about slavery and economics. In his fall research-and-writing seminar, he inspired the 13 students in that class to delve into any number of aspects of applying the law to moral issues.
“The students grappled with timeless questions of the duty of obedience to law in the face of immorality,” Brophy says.
Brophy started the class off reading cases and literature on slavery and property. One Saturday night, he took the students to see the Oscar-winning film “12 Years a Slave.” He met with each student individually to come up with a workable topic, and he pointed them toward research resources. As the semester progressed, the students “workshopped” their papers, giving one another feedback. The range of topics impressed Brophy.
“I’ve been working in this area for decades,” he says, “and I learned a lot from every paper. They led me to see more of the range of responses of enslaved people and proslavery thinkers both.”
“This generation is interested in the nuances of racial interaction,” he adds. “As recently as when George Bush was president, we weren’t thinking about racial interaction in the same way we are now that Barack Obama is president. I see these changes reflected in student papers.”
One student wrote about the prosecution of white women who had children with enslaved men. Another took on the topic of how judges used a minor Old Testament story, “the curse of Ham,” in which Noah dooms to slavery the people led by his son Ham, as a justification for enslaving Africans in America. Still another student researched instances of enslaved people being allowed to testify against white people in criminal prosecutions.
Chris Dwight, a second-year law student, ensconced himself in Wilson Library’s Rare Book Collection to read a meticulously preserved document, an address by Mississippi High Court Justice William L. Harris that proved to be the cornerstone for his paper. Dwight reconstructed Harris’ seemingly straightforward application of the law — legal arguments ranging from the freedom of contract, to developing commercial capacity, to comity and testamentary freedom — that documented Harris’ evolution toward anti-Unionism.
“If the law could be mechanically applied in all instances, lawyers wouldn’t have jobs,” Dwight says. “There’s a creativity to law that’s alive and well today as it was then.”
Dwight emerged from the class with a stronger commitment to examining legal issues in a bigger context. After all, even the driest statute always affects someone’s life. The underlying assumptions of a law are crucial to its application. Simple changes of assumptions can lead to dangerous outcomes.
“I want readers to understand how ideas can snowball into a conflict that leaves 600,000 men dead,” he says. “You can’t pin the Civil War into one single causal factor. It was a thousand steps in one or another direction that eventually got you to a battlefield. There has to be a hyper-awareness that our smallest actions can cause something extraordinarily tragic down the road.”
Second-year law student Heidi Rickes, who studied American political history at Davidson College as an undergraduate, went back to Davidson to read some of the literary addresses given there between 1838 and 1849. What people talked about in small, highly educated groups often reflected or preceded ideas talked about in society at large.
Rickes’ paper highlights an unusual but accurate method of studying history.
“I looked at history through this very small lens, which historians often have to do when primary sources are minimal,” Rickes says. “Yet the ideas in those speeches were indicative of the larger picture.”
The speeches given at Davidson probed perennial questions: What is your role in society? Is that role predetermined? Do certain members of society have duties to act in certain ways? Do people in certain professions have a greater responsibility to act?
“We’ve been talking about race for generations,” she says. “It was important in the 1800s, and still is today.”
Rickes says that in the seminar Brophy encouraged students to think critically, and now when she reads secondary sources, she looks for the counterarguments before deciding what is true and where she stands on an issue. “Not to be skeptical, but to look critically,” she says.
Thinking critically is something that rules-based classes often don’t have the luxury to do, Rickes says. Traditional law school classes concentrate on teaching the rules. “We generally don’t have time for a class discussion about whether we think the rule is good or not,” she says.
Ben Kleinman, a third-year law student who is headed to the Air Force JAG Corps once he graduates, went to UNC’s Southern Historical Collection to transcribe handwritten papers of students in debating societies at UNC in the years leading up to the Civil War. The debates reflected the issues of the day; many argued different aspects of whether the South should secede from the Union. Slavery, of course, was at the crux of most of those arguments.
The project was timeconsuming, Kleinman says, but paid off in making him a better writer as he learned to frame and contextualize his arguments. “That will help me, no matter what field of law I go into,” he says. “When you proffer an argument in court, you’re also contextualizing it in arguments that have been made in the past. Seeing that approach done well will help me be more creative in applying the law.”
His research showed how the sentiment of students in the mid-1800s solidified in pro-slavery, anti-Union beliefs. Though it was uncomfortable to acknowledge the darker side of UNC’s past, it also was important, especially so for lawyers who plan to practice in the South.
“Anytime you’re working in a community, you need to understand the history of that community,” Kleinman says. “There’s a relationship that existed before you began practicing law there, and understanding the history allows you to understand how a community is responding to you.”
Rarely does a practicing lawyer do the kind of research that the students did in Brophy’s seminar. Thompson says her research into Quaker manumissions and how the technology of law could be used innovatively to circumvent laws that promoted morally reprehensible practices was worthwhile for understanding public interest litigation and how law develops. The law doesn’t always encompass the greater good of society or reflect all of society’s moral views. Her research showed one way that dissenters can use the law to effect change.
“The judgments and decisions we make are not made in a vacuum,” she says. “Morality and history also will judge the decisions we make. It puts pressure on us to consider the morality and the bigger picture whenever you make decisions as an attorney or judge or in our own lives.”
-May 7, 2014