Teaching Slavery in Commercial Law

Carliss N. Chatman April, 2023

Abstract

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. 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 even how communities of color are still governed and supported. The impact of that shift in status persists today. The commodities markets and the nations that rose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that plays a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational.

Many American universities played a role in the slave trade—either by receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law 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 my simulation, described in this Essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this Essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students 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.

Introduction

Law professors teach classical cases that take place in the shadow of slavery, Reconstruction, and Jim Crow without any mention of the context.¹ Such classes often take place on land belonging to Native Americans and in classrooms constructed using funds generated by the “free” labor of African Americans. Business² and commercial law³ professors, in particular, typically teach as if the law occurs in a vacuum, disregarding the cultural and policy phenomena that help shape the law.⁴ 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.”⁵ Public law courses have begun to reference race, either in response to ABA mandates or demands from stu-dents.⁶ 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.⁷ Moving past enslavement, during the era of Jim Crow and retrenchment, the freedom to refuse to contract was a hurdle that only federal legislation and landmark cases could overcome.⁸ Business and commercial law actively helped create the social and economic conditions of marginalized peoples.⁹ 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.¹⁰ Society required the subordination of these persons for what was perceived to be the greater good of mankind as a whole.¹¹ These structures and their underlying beliefs heavily influence many of our norms today.¹² 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.¹³

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.¹⁴ Forming a common law contract requires the manifestation of assent, as demonstrated by offer and acceptance, adequate consideration, and the absence of defenses.¹⁵ Persons, both humans and businesses, must have capacity to contract, as those without capacity cannot accomplish the manifestation of assent.¹⁶ Those lacking capacity historically included non-persons and partial persons.¹⁷ 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.¹⁸

The law school commercial law curriculum is based on the law of the UCC,¹⁹ which includes courses on common law contracts and the UCC, incorporates freedom of contract, and explains the capitalistic goal of private ordering.²⁰ 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.²¹ 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.²² 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.²³

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.²⁴ 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.²⁵

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.²⁶ 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,²⁷ 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.²⁸ Business and corporate law courses are dependent on the classifications of persons and property, both real and personal.²⁹ 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.³⁰ 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.³¹ Professors reserve identity matters for public law courses, or, in the worst-case scenario, for elective courses.³² 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.³³ Similar methodologies could be used to show how other marginalized groups relate to law and commerce.³⁴

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.³⁵ Then, this Essay explains the pedagogical methods I apply to ensure that all students benefit from the exercise.³⁶ 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.

I. The Case for Slavery in The Business and

Commercial Law Classroom

Even in the absence of its foundational nature, slavery would be a fitting subject to incorporate into first-year and upper-level courses.³⁷ This is because while the slave system played a foundational role in the creation and development of American capitalism,³⁸ which should be reason enough to focus on slavery, globalization and other trends in business make avoidance of these issues economically inefficient.³⁹ A failure to incorporate slavery leaves law students both uninformed regarding the history of business and commercial law and unprepared to serve a changing client base and workforce.⁴⁰

In a marketplace where purchasers desire fast delivery and reliable goods, the sale of goods as governed by UCC Article 2 allows merchants to move quickly without the necessity of ironing out details.⁴¹ Article 2 makes performance acceptance of the contract, relies on industry standards and prior relationships to fill in the gaps, and sets standards for remedies when it is more economically efficient to breach an agreement than to perform.⁴² In a society that has gradually moved from cash and direct exchanges of goods to payments that are the equivalent of cash, the payment systems in Article 3 allow contracting parties to substitute negotiable instruments, increasing security while giving the market a means of exchange that is as reliable as currency.⁴³ Where entrepreneurship and job creation are valued, secured transactions, as governed by Article 9 of the UCC, democratizes commerce, enabling those without a legacy of wealth to use their personal property as collateral so that they may launch and expand businesses using the engines of commerce themselves as security.⁴⁴ Common law contracts incorporate the principle of good faith and require that negotiating parties have the capacity for a meeting of the minds, a bargained for exchange, and no legal defenses as defined by custom or statute that invalidate the bargain.⁴⁵ For these reasons the status of persons, both natural and corporate, and the classifications of property are essential elements of every contract.⁴⁶

Personhood status determines whether one is a party to or object of a contract, and for much of our nation’s history the law deemed all per-sons of African descent to have a limited status, if given personhood status at all.⁴⁷ This status has lasting impact, as it influences many of our norms today. The commodities markets and the nations that arose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans.⁴⁸ Yet, many business and commercial law professors devote class time to teaching foundational and historical material without consideration of the impact of slavery.⁴⁹ To avoid slavery in business and commercial law courses is to ignore an institution that plays a pivotal role in much of what we do today.⁵⁰ Slavery is not a frolic; it is foundational.⁵¹

The dominance of private-ordering marks the evolution from a status-organized society, where a sovereign makes all decisions and the ability to advance is a grant from a higher power, to a self-determined and self-asserted society, where the power to contract controls one’s fate.⁵² Not everyone enjoyed the newfound privilege embodied in the transition from monarchy to private-ordering. Merchants and masters replaced the single sovereign or dual sovereign of monarchs and religious figures. In its initial stages, the more modern society embodied merchants and masters, who were empowered by the government to buy, sell, and trade “lesser” human beings.⁵³ Once government evolved further away from monarchy, private ordering and contracting allowed men to enter into bargains privately without oversight and interference from a sovereign, but that freedom was not for all.⁵⁴ It gave some men the ability to enslave other men, women, and children.⁵⁵ If in a progressive society all law is based in the ideals of freedom of contract as opposed to the power of a sovereign, it is essential that professors integrate commercial law and the influences of capitalism into so-called public law courses, and that commercial law acknowledge its influence on public law in private law courses.⁵⁶ This symbiotic relationship is the foundation of modern government and the modern economy.

The transatlantic slave trade changed the global economy in a way that facilitated revolution.⁵⁷ Those revolutions—industrial, political, and social—resulted in great freedoms for some at the sacrifice of others.⁵⁸ The revolution led to the diminished role of the monarchy and the church, rise of commerce, and new prominence of merchants and entrepreneurs.⁵⁹ The norms governing this new economy are formed in the shadow of the slave trade.⁶⁰

As a result, there is a need to understand the origins and evolution of law and power in the United States.⁶¹ Unfortunately, business and commercial law pedagogy are woefully lacking in this understanding. For students in law and business school, the curriculum reserves the issues of socioeconomics and equality for other courses and other disciplines. By ignoring the influence of slavery on the development of our laws and the structures of business, we have created a pedagogical void that cannot reconcile how a system founded on freedoms—of liberty and of contract—can result in such disparate outcomes.⁶² The academy’s siloing of information sends law students into the world with mistaken and limited beliefs.⁶³ Law school curriculum teaches that equality is the domain of criminal law, constitutional law, or property, that slavery is a matter for historical review, and that we can reduce the contributions of the enslaved to just free labor.⁶⁴

The erasure of slavery from the private law curriculum does not just impact our students. Professors are trained in a system that disregards a fundamental aspect of our legal and business history, which results in scholarship and legislation that lacks properly calibrated solutions.⁶⁵ We cannot fully train the lawyers of tomorrow without a realistic view of the past. The claim that these matters fall within the domain of public law disregards the role of private ordering in systemic inequality.⁶⁶ This leaves tomorrow’s judges, lawyers, politicians, and business leaders with an incomplete picture of legal reality.⁶⁷

The need to teach slavery is not merely a matter of historical accuracy; a failure to do so also results in market inefficiencies.⁶⁸⁶⁹ Business and commercial law, from the classroom to the c-suite, have a pattern of homosocial leadership and homosocial thought.⁷⁰ A homosocial environment is one which promotes non-romantic same-sex relationships, such as friendship and mentorship, that acts to uphold the power of male dominance.⁷¹ In publicly traded corporations and venture capital firms that drive the funding of corporations and the future of corporations, homosocial relationships act to prevent the diversification of leadership, despite evidence that diversity improves outcomes.⁷² Our retirement funds are collectively invested in these institutions as they are deemed the safest and poised for long-term growth.⁷³ Yet, we are acutely aware of the risk of failing to diversify.⁷⁴ Ironically, in times of crisis, diversity, or a focus on diversity, is blamed for failures.⁷⁵

The way that we teach these subjects represents the homosocial environment as if it is a coincidence not worthy of question or examination.⁷⁶ Initiatives to diversify business have fallen short of making the business world a reflection of the demographic makeup of the country.⁷⁷ Boards that successfully diversify face criticism, and corporate leaders who are female or of color face greater scrutiny.⁷⁸ Yet, cyclical financial crises and studies repeatedly show that a lack of diversity contributes to these failures.⁷⁹ Group think and institutional capture, facilitated by homosocial environments and thought, lead to corporate fraud, breaches of duty and other corporate governance failures, and in the worse cases market collapse.⁸⁰ The lack of diversity at the front of the classroom, in the board room, and in the subject matter taught in business and commercial law courses contributes to a cycle of erasure that ultimately leaves students and future leaders woefully uninformed.⁸¹ It also leaves the capital mar-kets vulnerable and inefficient.⁸²

Exposing students to the slave trade’s influence on modern business institutions shows them that the status quo is not a natural occurrence.⁸³ Instead, our nation’s intentional structure and economic foundation in the slave trade ensures that we continue to maintain white male supremacy.⁸⁴ The modern exploitation of borrowers as evidenced by the sub-prime lending crisis, the lack of diversity in business leadership, and other incidents evidencing structural inequality would not come as a surprise if lawmakers and their advisors understood the history of the business structures and policies that facilitate this inequality.⁸⁵ Banking, commercial law, and corporate law have a 400-year-old pattern—the exploitation of Black labor for profit, with the cover and assistance of the government.⁸⁶

When teaching the UCC in first year Contracts, Sales, and Core Commercial Concepts, I began to contemplate a way to incorporate information on the evolution of modern capitalism and our commercial law norms. Colonialism is responsible for American political and financial dominance, and both American and international commercial law customs.⁸⁷ By incorporating a review module on slavery, with a focus on its impact on the development of my own institution, I have been able to give students the more nuanced and complete perspective. Teaching slavery is not a woke detour, but it is instead a necessary method for fact-based learning.⁸⁸ We can explain nearly every aspect of the UCC through the lens of the slave trade.

Our singular focus as academics on public systemic oppression ignores the role of private ordering in the development of these systems.⁸⁹ Private actors flying the flags of sovereign nations colonized the Americas, but slavery and the social norms it created came at the hands of corporations and the ventures fueled by private trade for slaves, spices, and other commodities.⁹⁰ Slavery provides insight into the origins of commercial principles because the development of commercial paper, the insurance industry, and norms governing the sale of goods made the ubiquity of a slave economy possible.⁹¹ The cotton plantation was not economically practical without an international market.⁹² Government facilitation of private ordering developed this market.⁹³

Students have one source to learn about the legal foundations of private ordering—the law school classroom. Yet, law school and business school curricula fail to provide students with information on any origins of corporate law or commercial structures before the growth of railroads or outside of the frame of the industrial revolution.⁹⁴ Our brand of capitalism has its origins in the Atlantic slave trade, which used African slave labor to drive global profits as early as 1441, but our courses pick arbitrary points from later in history as the origin story.⁹⁵ This framing enables the false siloing of public and private law. Racial disparities have origins outside of the public policies studied in constitutional law, some property classes, and in all race and the law and critical race theory courses.⁹⁶ Private law has operated to solidify these policies, and in some cases is the original source of these policies. If we wish to train culturally competent lawyers, we must incorporate the reality of contract and business norms.⁹⁷ Incorporating slavery into the business and commercial law curriculum helps to accomplish this goal.

Those within the legal system have acknowledged the need to be more inclusive for purposes of providing a more fulsome and accurate legal education.⁹⁸ While addressing the need to provide students with an accurate picture of legal history and producing students who can competently practice the law of the future, incorporating slavery enables my commercial law courses to meet learning objectives that help shape my students into attorneys who will approach the law in a holistic way.⁹⁹ This exercise enables me to fulfill the mandates of ABA Standard 302, which requires law schools to provide:

(a) Knowledge and understanding of substantive and procedural law; (b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal

context; (c) Exercise of proper professional and ethical responsibilities

to clients and the legal system; and (d) Other professional skills needed for competent and ethical participation as a member of the legal profession.¹⁰⁰

This Standard, particularly in conjunction with Standard 303, has been interpreted to include cultural competency and the development of skills, not just rote memorization of the law.¹⁰¹ Attorneys should have more than the typical understanding of statutory interpretation and application.¹⁰² Through my pedagogical approach and the slavery and commercial law simulation, students gain an understanding of legal history and the interplay of public policy and private law. They develop the skills to analyze law and facts more fully and to review commercial documents for compliance with statutory norms. Most importantly, they begin to develop the skill of taking a critical lens to the law, considering the why and rejecting the notion that they should simply memorize and regurgitate the law without question.

II. Pedagogy

¹⁰³

In my simulation I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus.¹⁰⁴ A professor may use Washington and Lee as the focus, or may also customize it to fit another institution.¹⁰⁵ Many American universities played a role in the slave trade—either receiving funds from the enterprise or receiving the enslaved as donations and using their labor or dis-posing of them for the financial advancement of the institution.¹⁰⁶

The simulation includes four hypotheticals, broken into roughly equal parts. I spent approximately ten minutes introducing the simulation, then ten minutes closing, which allowed approximately forty minutes for each hypothetical. In those forty minutes I alternated between discussions as a class and discussions in small groups. A fifth simulation serves as a followup assessment that students responded to in writing. Goals of this simulation include: (1) providing students with an opportunity for review while giving some consideration to the impact of definitions and status; (2) giving students the opportunity to practice what they might do as attorneys: I expect students to analyze the fact patterns, determine which parts of the readings are relevant, then apply the readings and their pre-existing knowledge to a real-life scenario; and (3) reviewing the concepts with a focus on how public policy and legal standards outside of the UCC can impact the operation of the UCC.

On a tour of Washington and Lee University, as you pass the Colonnade, tour guides will explain that conveyances of persons and property funded the construction of some buildings on campus. While there is a memorial to the enslaved, commissioned at the behest of Dr. Ted Delaney, it is situated in line with the obelisk that marks the grave of their owner, John Jockey Robinson, and Lee Chapel (now University Chapel), where the entire family of Robert E. Lee is interred. Here, tourists leave pennies face down.¹⁰⁷ As the institution attempts to take a more fulsome view of Southern history, it has not let go of Lee and his legacy.¹⁰⁸ These words are spoken casually, typically without further explanation or acknowledgment beyond a memorial in honor of the enslaved persons.¹⁰⁹ If one tours Monticello or the University of Virginia in Charlottesville, or Mount Vernon, enslaved persons and the role their labor and financial value had in shaping our nation is reduced to a moment in time that belongs squarely in the past.¹¹⁰ The role of the enslaved persons in the for-tunes of so many of our nation’s founders and in most institutions is just one illustration of how the slave trade was a driver of the American economy and capitalism.¹¹¹

For this simulation I provided students with copies of an Archival Guide prepared by Dr. Rainville on the enslaved persons left to Washington College, John Robinson’s will,¹¹² Board of Trustee meeting minutes, the university records on the names, ages, and values of the enslaved persons, the ad for their sale, and other materials from the archives.¹¹³ These materials provide a timeline of events and insight into the business decisions that led the university to sell enslaved persons in violation of the Robinson will.

The bequest from Robinson included seventy-four enslaved men, women, and children. In his will, he required that the university keep these people on the Hart’s Bottom Plantation, until 1876, fifty years after his death.¹¹⁴ Specifically, Robinson instructed the Trustees to retain “all the negroes I may die possessed together with their increase… For the purposes of labour, upon the above Lands [Hart’s Bottom] for the space of fifty years after my decease.” Only after this five decade period had passed would Robinson release the Trustees “from all restraint as to the disposal of the negroes,” enabling them to “sell or retain them as the results of their labour shall be demonstrated to be best.” From 1827 to 1835, Washington College honored Robinson’s request. The Trustees hired out one of the enslaved individuals so they could earn cash from the skilled labor. However, as a college and not a plantation, they did not have enough work on campus for seventy-four individuals.

After obtaining a legal opinion from Chapman Johnson, an attorney in Staunton, Virginia,¹¹⁵ the Trustees believed they could break some of the requirements of the will.¹¹⁶ The Trustees voted to contravene one of the will’s integral tenants. They decided to sell fifty-five of the enslaved individuals to an infamous slave trader, Samuel Garland of Lynchburg, Virginia, forty years ahead of the time designated in the Robinson will.¹¹⁷

Like many wealthy Virginians, Garland owned land in Mississippi.¹¹⁸ In 1836, most of the enslaved community of Hart’s Bottom was forced to go to Hinds County, Mississippi, most likely on foot, with Garland, where they were sold to work on cotton plantations and permanently separated from their families.¹¹⁹ In addition to the enslaved people sold to Garland, the College also sold five other African-Americans to individuals in Lexington and Rockbridge County, while retaining six men and one woman. The total of the sale to Garland was $22,974.91. There was a commission of $459.50. The net amount received was $22,515.41.¹²⁰ In today’s dollars, the sale was worth $694,553.46.¹²¹

The Trustees were unable to sell some of the older and/or sick African Americans. In 1849 three of these individuals died while still enslaved by Washington College. In this same year, Washington College hired at least two (younger) Black men to work at the institution. In 1857, three elderly enslaved individuals from the Robinson Estate were still alive, costing the Trustees $130 a year to maintain them.¹²²

The facts surrounding the sale of enslaved persons at Washington and Lee fit sale of goods, leases, trusts and estates, contracts, non-profits, property, and numerous other subjects, but they do not provide the factual scenarios required for a full review of UCC Articles 3, 4, and 9. With some minor expansions and alterations, I was able to craft fact pat-terns that reviewed the entire course. The direct connection to slavery is information that students at Washington and Lee and the University of Virginia should be aware of, but slavery’s omnipresence and impact on the entire United States economy makes it a necessary subject matter for all institutions. Notably, on Washington and Lee’s campus, students have welcomed these insights.¹²³

It is important in all classrooms to ensure that discussions are based on the law and facts, not outside bias or personal feelings.¹²⁴ This is especially important when discussing a topic like slavery, which is laden with many preconceived notions and can be triggering for some students. Whenever I discuss slavery in class, I open with a reminder that I intend the classroom to be a safe space for dialogue for all, and this is particularly important when the material asks us to explore difficult subject matter. I also remind students that this simulation reviews the entire course, so the focus should be on the commercial law aspects not the social or policy implications. This simulation merely skims the surface of the role of the slave trade on the development of commercial law and gives a bird’s eye view of everything covered in a UCC survey course. The exercise shows the type of analysis needed to answer exam questions and what questions one should ask when confronted with a UCC fact pattern.

Before getting into the hypotheticals, I explain to students that these state classifications matter because how one is classified determines not only one’s freedom, but their relationship to commerce.¹²⁵ Whether a person has the freedom of contract, to own property, or whether they are an object of contract and commerce is defined by state law. The ability to establish a person’s race as Negro or Black in most states meant that those in power could determine whether someone went to trial and paid a fine or were imprisoned, or whether any legal encounter would result in their enslavement.

During the introduction to the simulation, I take time to explain the purpose of the readings and the simulation, and I provide more information for context. I explain that like the current UCC and other model codes before the Civil War, many legal statuses were defined by the laws of individual states.¹²⁶ The personhood status of African- Americans, be it free, enslaved, negro, mulatto, and other terms indicative of race and status, were defined by codes without the uniform legal standards we have today.¹²⁷ Post-Civil War, federal law defines the rights and the status of human beings, but state law continues to define business and commercial law—although statutes like the UCC and Model Business Corporations Act (MBCA) provide more consistency.¹²⁸ Although the entire nation endorsed the treatment of the enslaved, the laws governing their status were a matter of individual state law.¹²⁹

The State of Virginia and Washington and Lee provide a special perspective. Between 1687 and 1865, Virginia enacted more than 130 statutes on slavery, including seven major slave codes with over fifty pro-visions.¹³⁰ I provide students with excerpts of the 1860 version of the slave codes, which shows the legislature’s primary concerns were inheritance and racial mixing. The earliest codes in all states take care to ensure that race is determined by the mother—the child of an enslaved mother is enslaved, regardless of the identity of the father.¹³¹

Without national banks or currency, enslaved persons represented wealth.¹³² In most states, enslaved persons were more valuable than the property they worked.¹³³ For collateral purposes, the value of an enslaved person was more certain than real property, particularly in territories where the ownership of real property was speculative due to battles with Native Americans.¹³⁴ The enslaved were used for inheritance and collateral for loans: they were repossessed by banks and resold to cover debts, and states had strict rules for freedom.¹³⁵ For example, under the Virginia Code of 1860, a free Black person did not go to prison if they committed a crime; instead, they were sold.¹³⁶ In addition, a slaveowner could not free an enslaved person without paying all debts first.¹³⁷

I then highlight for students the various definitions of Negro or Black that existed throughout the country during the antebellum period. Virginia had a “one black grandparent rule,” where a person with only one quarter of African ancestry was classified as Negro.¹³⁸ Virginia defined Mulatto while making clear that it was a status equal to Negro, which subjected someone to enslavement if they were free and then committed a crime.¹³⁹ Virginia case law articulated a standard for Negro that included anyone with “ascertainable any Negro blood” with not more than one-sixteenth Native American ancestry.¹⁴⁰ I compare Virginia to Louisiana, with its origins in French slavery and slightly less emphasis on strict definitions of whiteness, and Texas, which had a “one drop” rule.¹⁴¹

The first hypothetical asked students to consider how the current definitions of goods and the current classifications of collateral were impacted by the definitions found in the Constitution and in the Virginia Code. I then asked them to consider how these definitions impacted how African-Americans were classified in the 1830s. A portion of the 1830 Code of Virginia states:

9. Every person who has one-fourth part or more of negro blood shall be deemed a mulatto, and the word “negro” in any other section of this or in any future statute, shall be con-strued to mean mulatto as well as negro. 10. No free negro shall be capable of acquiring (except by descent) any slave. 11. Slaves shall be deemed personal estate.¹⁴²

With this statute in mind, I asked students how they would define and classify the African-Americans owned by Washington and Lee under Articles 1, 2, and 9 of the UCC, considering the definition of “goods” and the classifications of collateral.¹⁴³

An exploration of how the enslaved persons would be classified forces students to consider which definitions and concepts they need. It also forces them to struggle with the mental gymnastics required to declare human beings legal personal property. When applying 1860 definitions to modern UCC Article 2, which governs the sale of goods, stu-dents must consider what counts as a sale and whether the African- Americans would be goods.¹⁴⁴ The 1860 statute defined African- Americans as non-persons; therefore, students must learn how goods is defined. Article 9 applies to personal property, not real property, so stu-dents must decide how the persons would be classified.¹⁴⁵ If the enslaved are not persons, and they are not real property, such that they are chattel that would be classified as farm products or inventory under modern Article 9. To guide them further, I specifically ask how Articles 1 and 2 define goods, and what kind of property Article 9 covers.¹⁴⁶

Students struggled with the idea that persons were chattel, so it is important to anchor them with the definitions in the Virginia statutes. They tend to discuss the morality of the statutes or the circumstances surrounding the sale of the enslaved persons. Many students attempt to rely on the UCC definition of “person” found in Article 1.¹⁴⁷ I also show the students the advertisement used by the University to promote the sale. It states:

!’-…::-;~-:- _ Negroes for Hire.

· the ·c o·un House door in Lexington.

f:· __-.< > Twenty Likely Negroes 1· ·. · Men, Women, Bo ys and Girls, Sam ‘! M ‘D. Reid, John A lexander,

Negroes for Hire. Will be hired out for the ensuing year, on Saturday the 30 instant, before the Court House door in Lexington. Twenty Likely Negroes belonging to WASH- INGTON COLLEGE consisting of Men, Women, Boys and Girls, many of them very valuable. Bond with good security will be required, to bear interest from the date if not punctually paid. Terms more particularly made known on the day.

It is dated December 19, 1826, and signed Samuel M.D. Reid and John Alexander.

In addition to the statutes and supplemental materials, I reminded students that if there is not a definition in Articles 2 or 9 specific to the Article, then the general definitions in Article 1 apply.

The objective of the second hypothetical is to review first year Contracts in addition to UCC Article 2. Although I and their Contracts professors taught them otherwise, students will skip the steps of deter-mining whether something is a contract and apply contract principles to a real property, family law, or trusts and estates transaction.

Students operate with the same facts regarding the gift of the enslaved persons in the Robinson Will. I added an additional fact during this hypothetical: Washington College (now known as Washington and Lee)¹⁴⁸ hired out several of the enslaved persons for one-year periods. This advertisement highlights the details of those arrangements.

To incorporate commercial paper, I tweak the facts slightly to include promissory notes. In the third hypothetical, the notes are transferred, which facilitates a discussion of indorsements, warranties, holder in due course status, and remedies.¹⁴⁹ I provide students with some images of notes and drafts from the 1800s located in the Library of Congress to demonstrate that the magical words and other elements of a negotiable instrument have not changed. One may search the Library of Congress, state archives, and even one’s own university archives to find historical documents that are the same or very similar to instruments used today. Many documents related to the presence of enslaved persons in commerce are avoidable. I have found students to be moved by these simulations, the casual mention of enslaved persons in the materials, and the fact that instruments for historical figures, including the country’s founders, contain reference to slavery.¹⁵⁰

The final hypothetical involves a completely fictitious scenario that asks students to assume that instead of selling the enslaved persons, in 1836 Washington College took out a loan for the construction of Robin-son Hall and for the purchase of additional land in the amount of $22,500. Here, case law is introduced to demonstrate how classifications of collateral and prioritization of lenders pre-dates the development of model codes like the UCC.¹⁵¹

Following this part, I take some time to debrief and decompress with the students and introduce an additional out of class assessment. I find students to be more invested in this exercise than in a typical review problem. I believe it is because we discuss places they see every day in Lexington, Virginia and on Washington & Lee’s campus. I encourage students who want to explore the subject matter further to visit our University Archives.

Many business and commercial courses have no discussion of race or class.¹⁵² Yet the vestiges of the framework covered in my slavery and commercial law simulation persist today, including in Lexington and Rockbridge County, Virginia where Washington College, now known as Washington and Lee, is located, and the Hart’s Bottom Plantation in Buena Vista, where many of the enslaved persons owned by the University resided.¹⁵³ Counties with large slave populations in 1790 have the largest Black populations today, such that neighboring Amherst County continues to have more African-Americans than Rockbridge County.¹⁵⁴ At its peak, Virginia had a population that was 42% Black and primarily enslaved persons.¹⁵⁵ The population of Black people declined first after the first great migration westward to plantations in Mississippi and beyond, as cotton became the premier cash crop and later, after the end of slavery.¹⁵⁶ In most areas, it has not recovered. In some areas, policies enacted as an afront to first Reconstruction and later the civil rights movement helped to grow the geographic divide. The erasure of African-Americans both physically and from the history of Virginia and Lexington did not occur at the hands of government actors alone.¹⁵⁷ Private businesses have also played a role in the decline of African-Americans and their exclusion, including institutions of higher education.¹⁵⁸

III. Resources and the Research

Slavery was a pervasive force in the entire American economy for generations.¹⁵⁹ Most long-standing institutions in this country, including institutions of higher education, have some connection to slavery.¹⁶⁰ If the institution itself did not trade in enslaved persons, major donors and even the financial institutions providing funding had a connection to slavery.¹⁶¹ For this reason, it is useful to explore an institution’s own history through this simulation. The primary goal of the simulation is for students to review what they have learned throughout the course while providing a fact-based hypothetical situation to work through applying the materials.

Lexington, Virginia, Washington & Lee, and Virginia generally have some elements unique to their history and geography, but many of the phenomena have occurred throughout the country. There is value in engaging with issues of equity and in particular slavery at all institutions, not just those in the south or those founded pre-Civil War.¹⁶² If your institution does not have a direct connection to slavery, looking at legal relations with other marginalized groups can serve the same purpose. For example, the University of Michigan owns land in northern Michigan that it acquired after the original Native inhabitants were violently evicted from it in the early 20th century.¹⁶³

I relied heavily on Washington and Lee’s Archives, the research support of Dr. Lynn Rainville, our Director of Institutional History, and the work of Professor Ted Delaney, a historian focused on the south. To provide students with primary and secondary sources about the persons enslaved on our campus.¹⁶⁴ I combined these materials with documents from the Library of Congress and the Virginia Foundation for the Humanities to provide a historical perspective on concepts incorporated into the UCC.¹⁶⁵ In addition, students read excerpts from The 1619 Project , articles from scholars in law and the humanities, and other materials from general audience resources that provided them with an understanding of slavery’s impact on modern commerce.¹⁶⁶ In this Part of this Essay, I explain how I combined these institutional history resources with legal and historical readings to provide students with a framework for the simulation. I also explain my approach to coverage of these materials in the classroom.

Washington and Lee’s story is unique in that it includes facts related to testamentary gifts and restrictions, the use of the enslaved labor on campus, and the lease and sale of enslaved persons. In 1825, John Robin-son, a prominent businessman in Rockbridge County, Virginia, authored a will that left his entire estate to Washington College.¹⁶⁷ Robinson was an Irish immigrant who became wealthy after training and selling horses, making whisky, and purchasing and running a 100-acre plantation known as Hart’s Bottom, which eventually became the site of Buena Vista, Virginia. John Robinson was a benefactor of Washington College before his death, donating both land and money to the university. He provided land in 1800 so that Washington College¹⁶⁸ could rebuild after a fire at Liberty Hall, and he funded the construction of the “Centre Building,” now Washington Hall. When John Robinson died in 1826, his will (the “Robinson Will”) was entered into the Rockbridge County Deed book, and the assets were transferred to Washington College.

The University Archives at Washington and Lee include the original documents detailing the sale and lease of African-Americans at Washington College. Most of the materials are indexed and digitized. The Archives include Board of Trustees minutes, accounting logs, the Robinson Will, and images of advertisements. Many of the materials are handwritten and have been transcribed for ease of review. Many institutions, especially those throughout the south, have archival resources as extensive as Washington and Lee’s with materials on slavery. While researching this project, I spoke with archivists at the University of North Carolina, the University of Virginia, and Tulane University. Many universities also host websites chronicling their connection to the slave trade.¹⁶⁹

The resources used for this simulation are not limited to institutional history. The additional assigned outside of the facts of the simulation provide perspective on the role of the slave trade on business and commercial law. The additional materials provide some historical context on the impact the slave trade has had on modern American business norms. Most of the additional readings are not traditional legal scholarship; instead, they are historical, sociology, and economics readings, as well as materials found in non-academic literature. I assumed that these concepts would be new to students, even law students who have majored in those areas. The contextual readings provide a necessary historical foundation.

From The 1619 Project I assigned materials by Matthew Desmond, Mehersa Baradaran, and Tiya Miles. The readings include the essays: “American Capitalism is Brutal. You Can Trace That to the Plantation,” “Mortgaging the Future,” “Good as Gold,” “Fabric of Modernity,” and “How Slavery Made Wall Street.”¹⁷⁰ These essays explain the role that slavery, the plantation economy, and cotton economy played in the development of modern business norms.

In addition to The 1619 Project , I provide students with additional materials that will help to contextualize the simulation. Students read Bank of Kentucky v. Vance’s Administrators .¹⁷¹ In the case, business partners A. Morehead and Robert Latham pledged twenty enslaved persons and several tracts of land as collateral for loans from the Bank of Kentucky. Morehead and Latham pledged nineteen of the twenty enslaved persons again as collateral for a second loan from Vance. Both Vance and the Bank of Kentucky had the right to sell the enslaved persons in the event of default. While analyzing the persons as property, the court explained priority of lenders and the rights of those who receive a pledge of collateral, and it provided a general overview of many of the commercial law norms studied in a class covering Article 9 of the UCC.¹⁷² The remaining readings, some required and some optional, provide historical and economic context.¹⁷³ Because much of this material is absent from the law school curriculum, these materials give students who desired it historical context for the simulation. To date, there is no casebook or other source that consolidates this material in relation to business and commercial law.

Given Washington and Lee’s unique positioning, and the comprehensiveness of the archives and the facts, it could benefit students from other institutions to study Washington and Lee’s history. Students will have an opportunity to review the UCC with a focus on how public policy and legal standards outside of the UCC can impact the operation of commercial laws. Students also consider the impact of definitions and status, and of the legacy of the slave trade, by studying the history of another campus.

Conclusion

Today the equality gap, particularly when placed in a global context, has reached unprecedented levels.¹⁷⁴ 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.¹⁷⁵ 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.

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