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Teaching Slavery in Commercial Law
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.Racism Pays: How Racial Exploitation Gets Innovation Off the Ground
Recent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because they have monopsony power to do so. Workers of color have far fewer outside options than white workers, owing to intentional and structural discrimination against workers on the basis of their race. In the emerging digital economy, racial exploitation has paid off by giving innovators a workforce that is cheap, easy to scale, flexible, and productive—the kind of workforce that is especially useful in digital markets, where a first-mover advantage often translates to winner-take-all. This Paper argues that these workers should be paid the marginal revenue product of their labor, and it proposes a number of potential ways to do so: by increasing worker compensation or worker power. More generally, I argue that we should value the essential contributions of workers of color and immigrant workers who make innovation possible.How to Sue an Asue? Closing the Racial Wealth Gap Through the Transplantation of a Cultural Institution
Asues, academically known as Rotating Savings and Credit Associations (or ROSCAs for short), are informal cultural institutions that are prominent in developing countries across the globe. Their utilization in those countries provide rural and ostracized communities with a means to save money and invest in the community simultaneously. Adoption of the asue into the United States could serve as the foundation by which to close the racial wealth gap. Notwithstanding the benefits, wholesale adoption of any asue model runs the risk of cultural rejection because the institution is foreign to the African American community. Drawing upon principles of cultural and legal transplantation, successful transplantation of cultural institutions is possible where parameters that provide contextual stability are put in place. Given that the most prominent drawback to ROSCAs is the risk of default and embezzlement, the contextual stabilizer to prevent cultural rejection should be one that secures the ROSCA from said default and nefarious members. Therefore, I propose that trust law can be that context stabilizer because it would provide legal recourse and mitigate the inherent risks involved in asue participation.Lawyers as Social Engineers: How Lawyers Should Use Their Social Capital to Achieve Economic Justice
The Michigan Business & Entrepreneurial Law Review (MBELR) has always strived to provide a platform for legal scholars, professionals, and students to publish business-related legal scholarship. Yet, little legal business scholarship focusing on the Black business community exists, despite the extraordinary impact that Black communities have in the U.S. business landscape. In a year of revolutionary social change, we are excited to feature in this special issue the work of Professor Dana Thompson, a Michigan Law alumna, in an effort to remedy this gap. Professor Thompson’s career, professional values, and day-to-day work demonstrate genuine, commanding, and inspiring commitment to social justice and community-based organizations.Race, Markets, and Hollywood’s Perpetual Antitrust Dilemma
This Article focuses on the oft-neglected intersection of racially skewed outcomes and anti-competitive markets. Through historical, contextual, and empirical analysis, the Article describes the state of Hollywood motion-picture distribution from its anticompetitive beginnings through the industry's role in creating an anti-competitive, racially divided market at the end of the last century. The Article's evidence suggests that race-based inefficiencies have plagued the film distribution process and such inefficiencies might likely be caused by the anti-competitive structure of the market itself, and not merely by overt or intentional racial-discrimination. After explaining why traditional anti-discrimination laws are ineffective remedies for such inefficiencies, the Article asks whether antitrust remedies and market mechanisms mght provide more robust solutions.Have a Job to Get a Job: Disparate Treatment and Disparate Impact of the ‘Currently Employed’ Requirement
Countless people struggle to find a job in a competitive job market despite possessing solid qualifications. Although the news media reports that job numbers are improving, the problems of unemployment particularly loom for people of color, older workers, and people with disabilities. These groups are often unemployed longer than other job seekers. These groups also suffer the disparate impact of job advertisements that require "current employment" as a prerequisite for hiring. The harsh reality is that the longer a job seeker is unemployed, the closer a job seeker becomes to becoming permanently unemployed. Job advertisements that require "current employment" exacerbate the problem. However, traditional disparate impact analysis under the civil rights laws can help to address some of the issues faced by these long-term unemployed job seekers.Federal Employer Sanctions as Immigration Federalism
For low-skilled workers in much of the world, U.S. admission policies make illegal immigration the most viable means of entering the country. Low average schooling, which disqualifies many potential immigrants from employment-based visas, and long queues affecting family preference immigration from high-traffic countries, make the admission criteria outlined in the U.S. Immigration and Nationality Act (INA) prohibitive for most would-be immigrants to the United States. Perhaps due to this failure of immediate legal avenues, many immigrants enter the country illegally. Though many eventually gain legal status, in the meantime they live and work in the United States without documentation. "Illegal immigration thus accomplishes what legal immigration does not: It moves large numbers of low-skilled workers from a low-productivity to a high-productivity environment." Recognizing that job opportunities are a significant motivating factor in the decision to come to the United States, President Reagan signed the Immigration Reform and Control Act (IRCA) in 1986, the "centerpiece" of which was the country's first comprehensive federal employer sanctions law. "Conditioning U.S. jobs on proof of [work] authorization, so the logic went, would deter immigrants from coming to the United States for work reasons, encourage those that were here without meaningful job opportunities to return home, and over the long term reduce the rate of unauthorized migration." The Senate report for a version of the bill that became IRCA suggested that, while Third World development, closing the gap in wage disparity and working conditions, and the achievement of higher standards of living in sending countries were longterm goals that would help curb illegal immigration, the short-term cure was to eliminate the availability of the jobs that serve as a magnet. Prohibiting the hiring of unauthorized workers would be the most immediate way to cause meaningful change in the amount of unlawful migration to the United States. This Note explores the ways in which the failings of the current system of employer sanctions should render employer sanctions invalid for the same reasons that underlie preemption of state and local immigration enforcement laws. Because sanctions are intended to have a direct impact on inmiigration and require individual, private employers to enforce immigration law (without training!) as screeners of employees' eligibility and immigration status, IPCA's employer sanctions scheme results in an uneven and inconsistent application of what is meant to be a comprehensive federal scheme of immigration law. Moreover, if proposals to ramp up employer sanctions are successful, the potential for workplace discrinination will increase because employers, having access to only inadequate means of verifying work authorization, will face dueling liabilities under antidiscrimination and immigration law.The Legal Arizona Workers Act and Preemption Doctrine
in recent years, a spate of states passed laws regulating the employment of undocumented immigrants. This Note argues that laws that impose civil sanctions on employers that hire undocumented immigrants are preempted by both federal immigration law and federal labor law. The Note focuses specifically on the Legal Arizona Workers Act because it went into effect in 2008 and has amassed more than two years' worth of data on its enforcement, and because it is touted as the harshest state anti-immigration measure to date. This Note examines the law's impacts and argues that practitioners nationwide should challenge the Legal Arizona Workers' Act, as well as the proliferation of similar state laws that threaten civil rights, business and labor interests, and the supremacy of the federal Constitution.Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts
A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts-so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on "common sense" and a single definition of sandwich-"two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them." The only barrier to the burrito's entry into the sacred realm of sandwiches is an additional piece of bread? What about the one-slice, open-face sandwich? Or the club sandwich, typically served as a double-decker with three pieces of bread? What about wraps? The court's definition lacked subtlety, complexity or nuance; it was rigid, not allowing for the possibility of change and evolution. It was a decision couched in the "primitive formalism" Judge Cardozo derided nearly ninety years ago when he said "[t]he law has outgrown its primitive stage of formalism when the precise word was a sovereign talisman, and every slip was fatal. It takes a broader view to-day." Does it? Despite the title of this piece, the goal is not to determine with any legal, scientific or culinary specificity whether a burrito is a sandwich. Rather, the author explores what lies beneath the "primitive formalism" or somewhat smug determination of the court that common sense answers the question for us. This Article suggests Judge Locke's gut-level understanding that burritos are not sandwiches actually masks an unconscious bias. The author explores this bias by examining the determination of this case and the impact of race, class and culture on contract principles.Time to Step Up: Modeling the African American Ethnivestor for Self-Help Entrepreneurship in Urban America
When the United States Congress passed legislation in late 2000 to revitalize the urban core with incentives for equity investors, African Americans were inconspicuously absent as stakeholders in the enterprise. Subsidies in the form of tax credits were instead gobbled up by investor groups who developed upscale hotel-convention centers, high priced condominiums, and symphony orchestra venues that the pre-existing poor residents could not afford. The focus of this Article is not to blame those investors who took advantage of the opportunity, though they perverted the purpose of the subsidy. Rather, this Article seeks to identify a new substrata of the African American middle class who can step up to seize the opportunity for the benefit of the low income residents in the low income communities as the law was designed.
