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Blawg Review #249

By Omar Ha-Redeye

ROOTS

The Legality of an American Slavery

Introduction

February 1 is known as National Freedom Day in the U.S.  It?s also the start of Black History Month, the annual celebration and triumph of the descendants of African-Americans.  This year, President Obama has also indicated that National Freedom Day will also be the first ever National Slavery and Human Trafficking Prevention Month.  For this reason, Blawg Review #249 will follow the theme of African slavery in America, using the model of Alex Haley?s Roots: The Saga of an American Family.

Haley?s novel traces his family roots back six generations to one of his African ancestors, in the process telling a compelling story of survival and resilience.  This post will focus on various topics within this narrative, starting from his earliest ancestor in Africa, down to Alex Haley himself. It’s also in part my story, as a Canadian of (more recent) African descent whose family friends as a child included (among others) former Nation of Islam members that evaded the draft during Vietnam by moving to Toronto.  Their oral traditions, often told sitting around a campfire in the Canadian north, became part of my own Roots.

Canada has an complicated relationship with American slavery, being one of the final destinations of the Underground Railroad.  Although the Song of the Free refers to Canada as a place of safety, it is also “a cold and dreary land” where many faced rampant discrimination encoded in legislation.

Frustrated by the lack of opportunities in Canada, thousands even sought “repatriation” back to West Africa by the British during the late 18th century.  Canada remained part of the British Empire until 1867, and even then held on tightly to its British roots.  The Queen of England continues to be our official figure-head of state.

Perhaps ironically, it was the threat of an American invasion of Canada that was one of the major impetus for independence, just years after the Emancipation Proclamation in the U.S.  Canadians have always been rather wary of being “freed” by their neighbours.

7.  Kunta Kinte

Kunta Kinte was born around 1750 in the town of Jufure, Gambia, Kunta Kinte  to Omoro and Binta Kebba of the Mandinke people.  In 1767, he was kidnapped at the age of 15 and taken to the shore, stripped and branded, and placed on a ship for a three-month voyage to Annapolis, MY.

Most immigrants to the Americas have a much more pleasant journey than Kunta’s Middle Passage voyage, but face just as strong xenophobia.  Kevin R. Johnson speaks to current anti-immigrant sentiments today,

Unfortunately, racism and nativism at some level influence the views of some people about immigration and affect the national immigration debate… Check out the comments on many blogs or on many news stories on immigration if you want to get a sense of the racial sensitivities — and, in some instances, raw [hatred] and racism — in the discussion of immigration…
In contemplating immigration reform, policy-makers and the public need to acknowledge that U.S. immigration laws and their enforcement have disparate racial and national origin consequences. This has been well-documented. It is rather obvious that the U.S. immigrations laws affect more people from Mexico than Denmark, from China than Iceland, from India than New Zealand, from the Philippines than Sweden. Importantly, many people of color from the developing world find it much more difficult than persons of European ancestry from the western world to come to the United States.
That is not to suggest that the current laws, as well as all changes to the immigration laws, which have disparate racial and national origin consequences, are per se racist. But it is to say that in formulating the laws the nation should be aware of the racial and national origin consequences of its immigration laws and reforms.

After arriving in America, Kunta was sold at the slave market to a plantation owner in Virginia.  Rick Hills recently related his experience of eating in a former slave market, and questions the lack of slavery landmarks in the U.S.,

Anyone who has read Walter Johnson’s searing account of the New Orleans slave markets can imagine that eating inside a slave market can have the chilling feeling of eating inside, say, a barracks at Dachau… Slavery’s physical landmarks and artifacts seem mostly invisible in th[e] realm of public history…

There is something deeply odd about the absence of a major research and educational center about slavery in Washington, D.C., New Orleans, or elsewhere on the beaten path of tourism and public history. Have African-American organizations not made the creation of such a museum a priority? Or is the existence of our “peculiar institution” still too embarrassing and emotionally painful for us to make part of the standard docent’s circuit on the Washington Mall?

Not so for Canadian museums, who are presenting a whole range of events through  Library and Archives Canada for Black History Month in our nation’s capital.  One of the events is celebrating William Neilson Edward Hall, whose parents were freed slaves from America.  Hall was “the first Black person, the first Nova Scotian, and the first Canadian seaman to receive the Victoria Cross, the British Empire’s highest award for bravery.”

Hall was provided the award for his actions during the  Indian Rebellion of 1857, where Hindu and Muslims fought together against the British in a vain attempt to gain their freedom, a conflict sparked in part by the East India Company’s attempt to convert both groups to Christianity.  Hall was one of only two survivors on the HMS Shannon, whose job during the Siege of Lucknow during was to breach the walls of the Shah Najaf mosque where Indian militants were holed up.  When Hall died in 1904 in Nova Scotia, he was buried without military honours in an unmarked grave.  Eleven years later he was relocated to Hantsport Baptist Church, where a monument was erected.

Over a century later, Hall is being celebrated by the release of a stamp by Canada Post today.

Most African slaves and their descendants were more interesting in fighting against European powers, rather than fighting for them.  When Kunta was relocated to Virginia, he was renamed by his slave-masters as “Toby.”  He refused to adopt the name, and attempts to hold on to his African identity.  Although syncretism was prevalent in West Africa, most of the Mandinke people were Muslim, and Islamic beliefs were especially persecuted in the Americas.  Dr. Sylviane Diouf relates in her book, Servants of Allah: African Muslims enslaved in the Americas, that French missionaries record a special stubbornness by African Muslims in adopting the Catholic faith.

These religious freedoms still play themselves out today, especially with controversies over Muslim attire in France.  Islamophobia watch notes that Canada has expressly chosen not to follow the path chosen by France, as the Canadian Charter of Rights and Freedoms provide the right to women to wear what they want.  Hugh McIntyre of Freedom is My Nationality thinks it’s the right move (his nationality is Canadian, incidentally).  And according to Adam Ozimek, we’re still a lot freer in Canada than in the U.S.,

The true north really is strong and free these days. According to the Heritage Foundation?s 2010 Index of Economic Freedom, Canada now enjoys a greater degree of economic freedom than the United States. They enjoy the most economic freedom in North America, as it were.

Eugene Volokh discusses religious exemptions of a different type, from mandatory autopsies for executed killers in Johnson v. Levy, and presents a 1999 article, A Common-Law Model for Religious Exemption.

Things come to a point when Kunta has enough and decides to run away.  Once caught, he is given the choice of castration or amputation of his foot.  The implications of each choice weighs heavily on him, one preventing him from ever having a family, the other ensuring he will never have his freedom.

In addition to the runaway Maroon communities, slaves were notorious for their violent uprisings on plantations.  The most successful of these slave revolts was in 1791-1803 in Haiti, resulting in the first republic ruled by people of African decent.  According to Diouf, one of the key leaders in the Haitian revolt was a Muslim Jamaican named Dutty Boukman, his surname a reference to the book (a Qur’an) he carried.

Haiti is in the news these days for some very different reasons, but it provides an opportunity to understand the background behind this country.

Anthony Morgan, the current President of the Black Law Students Association of Canada (BLSAC), and a third-year law student at McGill University, provides some important history behind the Haitian revolution on The Cor,

…there is a long and relatively unknown history of deliberate subjugation of Haiti by government and corporate leaders whose actions and inaction have resulted in the effects of the recent earthquake being exponentially greater than they ever should have been. Thus, in the wake of the recent earthquake… you may see that Haiti is much less a victim of a tragic and inexplicable act of God and more so the victim of a succession of non-Haitian capitalists and racists who were adamant on ensuring that a republic governed fully and freely by former Black slaves could never emerge to show the world that yes, Blacks can successfully govern their own affairs.
…before the revolution Haiti was the crown of the Caribbean as it was the richest colony of all of Europe?s holdings at the time. This is largely because it produced 80% of the world?s sugar. It is also important to note that this was at a time when the Trans-Atlantic Slave Trade was a major source of economic gain for North American and European powers, who used un-free labour of Africans to amass the wealth that allowed these regions to enjoy otherwise unimaginable luxury and leisure and which would later drive the West?s Industrial Revolution (also built on the backs of Blacks, through the use of exploited Africans who, in Africa, extracted the natural resources used to build Western cities, factories and products of the Industrial Revolution). Thus, when the slaves of Haiti began to rise up, Western powers deployed their fullest possible efforts to quash this freedom movement. They did this in order to protect the immense profits gained from the trade of Black human beings.
Europe and North America?s fear of Haiti?s freedom fight was rooted in not only the prospect of losing the world?s richest colony, but also the prospect of the collapse of the entire slave-trade. They worried that the latter would result if enslaved Africans learned about the existence of a successful slave rebellion that culminated in the emergence of a state outside of Africa, ruled by free Africans.
In the end, the Africans of Haiti triumphed. However, while they celebrated jubilantly, the dark-hearted of Europe and North America began a global campaign of retribution and damage control. To prevent the still-enslaved from being inspired into rebellion and ultimately debilitating the West?s deplorable trade, they decided to respond with a full (though unofficial) embargo against Haiti. The aim and effect was to starve the country into total economic atrophy. This, of course, resulted in mass suffering and literal starvation of Haiti?s people and allowed the West?s slaveholders to portray Haiti as an example (especially to those still enslaved) of why slaves should accept their position within this inhumane institution. To justify this embargo, all Western powers decided to refuse to acknowledge Haiti as a legitimate state.

Richard Albert, another Canadian who is an Assistant Professor at the Boston College Law, speaks to what all of us owe to the Haitian people on the Huffington Post and Race Talk,

The death and disaster in Haiti are the direct result of the world’s failure to repay its greatest debt to a heroic nation whose citizens stood up for freedom at a time when others wilted in the face of tyranny….

Today’s stable and prosperous democracies–countries which owe their stability and prosperity in large part to the Haitian Revolution–have been derelict in their duty to redress the harm they have done to what was once the pearl of the Antilles. The world’s great democracies have been built on the bloodied backs of Haitians, and the beneficiaries of Haiti’s sacrifices have yet to acknowledge their complicity in Haiti’s impeded development…

Since rising nobly in a glorious yet improbable victory to win its independence, Haiti has languished in despair, contrary to the auspicious beginnings that the Haitian Revolution foretold. Only twenty years after defeating the French, Haiti was forced to pay a sum of $21 billion to France in exchange for official recognition from the international community–a crippling sum for a young nation still recovering from the devastation of slavery and the aftermath of war. And as if that were not enough to mire a nascent state in the depths of ruin, Haiti endured, though barely survived, civil wars and foreign-led coups during its first hundred years of independence…

Haiti, the mother of liberty and the axis of freedom, has been the catalyst for many of the human rights victories we take for granted today. For by staring down the forces of tyranny, defeating their French imperial oppressors, and casting the decisive stone against the expansionist designs of Napoleon Bonaparte, the brave people of Haiti stood as the embankment against the tide of tyranny that threatened to sweep much of civilization.

And just as Haiti stood up in 1804 for freedom in the world, it is now up to the world to stand up for Haiti.

The world is trying to stand up for Haiti, lawyers included. Pam Smith at Legal Pad covers a San Francisco lawyer who got caught in the Haiti earthquake when on business there, trying to build up the judicial system there.

Haiti Quake Shakes Court Planners from Cal Law on Vimeo.

Their project is probably set back some after the recent disaster.

Todd Harrison at Precedent Magazine outlines some of the initiatives that lawyers have undertaken in the Haitian relief.  The ABA Journal covers how the Florida Bar is asking all lawyers in the state to contribute a single billable hour, which in total would amount to $17 million, and the story of Daley Thuillez, the pilot/lawyer who flew to Haiti with supplies and back with passengers on his Pilatus PC-12.  Even more refreshing is that Big Law is chipping into the relief effort too.  Could this be what Tech Law Notes calls an “online donation revolution?”  One partner who traveled to Haiti said,

I think the best way I can describe it is that I saw things I wish I’d never seen. I was asked to assist in medical treatment care in ways that I thought I never would or could.

As a law student with a background in emergency management who has traveled to disaster zones, that’s probably the most accurate description of disaster relief possible.

David Badertscher says that bloggers can do their part by letting others know on their site how much destruction the country has faced.   For example, Eric Turkewitz shares images of the presidential palace, before and after the earthquake.  Bloggers can also participate in microvolunteering, by tagging photos and searching for missing people.  Grassroots collaboration can be found on the Crisis Commons, and the ABA has a Haiti Earthquake Legal Resources page.

A more significant building that has fallen is the Grace House of Hope orphanage, which is receiving $50,000 from Kirkland & Ellis, in a country where as much as 8% of the population may be orphans.  Not all orphans in Haiti though are children without parents,

The threat of trafficking for the purposes of adoption or prostitution becomes much graver during disasters like the current one in Haiti, which has left thousands of children orphaned or unaccompanied. Even before the earthquake, trafficking and kidnapping of children was a problem in the Western hemisphere’s poorest country, and the post-quake chaos has reportedly made things worse.

In one case, a Canadian pastor told reporters that a man offered to sell him a little Haitian boy for $50. He refused.

We probably wouldn’t be hearing about it though if he accepted.  The situation for children in Haiti is dire, and  Andrea Carroll laments that 225,000 children in Haiti (2/3 girls) are sent into domestic slavery out of poverty.

Even philanthropists can be taken advantage of though.  The Attorney-General of Alabama is warning citizens about fraudulent schemes that could deceive potential donors.  The Attorney-General of Mexico is raising awareness about the existence of slavery today.

Some are suggesting policy measures in Haiti that could have a larger effect.  Alex T. Roshuk, a New York State attorney with two law degrees from Canada, suggests temporary immigration relief for Haitians into the U.S.  The best way to help Haiti though, might be to cancel its debt.  Words can kill in Haiti, and Rebecca Solnit offers some strong critique of media coverage and depictions there.

A far less famous slave revolt than Haiti was one in Bahia, Brazil.  João José Reis documents in his book, Slave Rebellion in Brazil: The Muslim Uprising of 1835 in Bahia, that these African slaves were waging a jihad to establish an Islamic state in Brazil run by shari?ah laws.   In fact, Dr. Diouf notes that jihads in West Africa were the most significant collective response by Africans in their attempt to stop European slavery and expel colonial powers.

Probably not what Obama had in mind.

In Brazil, it resulted in mass forced conversions to Catholicism, and a deep unease over importing further Africans into the country, cited as one of the possible reasons for that country?s abolition of the slave trade.

Allegations of jihad take a different meaning in the modern context. The big decision by the Supreme Court of Canada this past week was with Guantanamo Bay detainee, Omar Khadr.  The Court ruled that Khadr?s Charter rights to life, liberty, and security of the person had been violated, but that the judiciary cannot order the Prime Minister to seek his return.  Canada is going through its own debate about the separation between the executive/legislature and the judiciary, and legal academics and politicians are already weighing in.

Khadr remains the only citizen of an industrialized nation at Guantanamo who has not had his government at least try to seek his return.

Khurrum Awan sees the ruling as an opportunity for opposition parties to claim their stake if citizens unite against government inaction,

In making this decision, the Court has been mindful of the separation of powers between the executive and the judiciary, and has struck an appropriate balance between its obligations to protect constitutional rights while not unduly interfering in how the government acts in policy-making areas. However, the Court?s ruling has provided the opposition with an opportunity to continue building an already developed, critical narrative of Stephen Harper?s attitude towards democratic institutions and constitutional norms.

Dr. Dawg of Dawg?s Blawg said,

?if the Charter can’t bind governments when its very purpose is to bind governments, then a knife has just been taken to it by the Supreme Court?

Is the government really not required to take positive measures to uphold Charter rights? Can it sit idly by and knowingly permit a citizen’s rights to be infringed, refusing to act within its authority to protect that citizen? The Supreme Court of Canada says yes. But if that is the case, 24 (1) [judicial remedies] rings very hollow indeed: how does the victim of injustice obtain his remedy? How is he made whole?

Law student James Gotowiec of The Court provides a suggestion this morning of a remedy that might be possible,

In the end, the value of this judgment for Khadr may depend on the decision in a case currently under reserve. In City of Vancouver v. Alan Cameron Ward (Case No. 33089), the Court has been asked to determine whether damages are available as a remedy under s. 24(1) when a Charter breach was not accompanied by a tort, did not result in loss to the plaintiff, or was not the product of bad faith. If they answer yes, perhaps Khadr will be able to turn the Court?s clear finding of an ongoing s. 7 breach into an award of damages. Of course, how that would be valued is anyone?s guess. How one quantifies damages flowing from seven years spent in a legal black hole may be Khadr?s next question for the Supreme Court.

Antonin Pribetic, ?The Trial Warrior,? comments on the decision in light of principles of international law,

While the recognition of Canada’s international law commitments is laudable, it is equally confusing; insofar as the majority?s reasons conflate conflict of laws (private international law) with public international law. Clearly, Canada has entered into various multilateral and bilateral conventions or treaties (some of which create reciprocal rights and duties between state-state or investor-state, while others create or promote private rights of action). In any case, all such international instruments are implemented domestically via legislation.
However, customary international law principles, such as universal jurisdiction or jus cogens remain elusive (e.g. Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675, leave to appeal refused, [2005] 1 S.C.R. vi). The line between custom and convention is not easily drawn, as in the case of domestic versus international (or transnational) public policy.

Charon QC, on the other hand, outlines the judicial defeats of terror laws enacted in the U.K. after a decision reported by the Times,

The justices condemned the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Measures) Order 2006 as oppressive and paralysing. Lord Hope of Craighead, the deputy president of the court, said that those affected were in effect ?prisoners of the state?.
He added: ?This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament.?

The justices said that those affected by the orders had not had the opportunity to challenge the grounds on which they were suspected, but not charged, of financing terrorism.

Scott H. Greenfield wonders addresses criticisms by Paul Cassells and others over why the underwear bomber was read his Miranda rights, because apparently he “clammed up” right after:

Whether Miranda warnings change the game or not (and given how many suspects vomit inculpatory statements despite the warnings, the efficacy of the warnings is very much in question), there’s little doubt that it would be far easier for law enforcement to obtain information without them.  Of course, it would be far easier for law enforcement to obtain evidence if they could just break into homes at will.  In fact, they might be really, really effective if there were no limits on law enforcement at all. Does anyone doubt this?
But here we have a man attempting to blow up a plane filled with Americans, in American airspace, over American soil, seized by American law enforcement.  And the views of a newspaper, a former federal prosecutor and a former federal judge is that the FBI blew it, and blew it huge, by adhering somewhat to American law.  Mind you, nobody’s even mentioning the first 50 minutes of pre-Miranda custodial interrogation.

…It’s disconcerting that voices who have, in their former lives, sworn fealty to the Constitution, and a newspaper whose ability to express its views depends on it, are so quick to scream that law enforcement blew it when they comport themselves (somewhat) with the rules.  If they’re so quick to toss out the Constitution when it comes to interrogation, can it be much of a surprise that a little torture doesn’t bother them?

Speaking of torture, which was routinely used to keeps slaves in check as well, Jack M. Balkin has a transcript of John Yoo on the Jon Stewart show, talking about the Torture Memos.  Balkin adds,

…the torture memos were written not to define “torture” with respect to new situations where the statute was unclear; rather they were written to allow the CIA to get around the legal ban on torture, even to the point of arguing that the torture statute would be unconstitutional if applied to persons acting under the direction of the President as commander-in-chief. The torture memos were not a hypothetical lawyer’s exercise to guide future conduct. They were written in order to ensure that members of the CIA would never be prosecuted for torture.

Jonathan H. Adler at Volokh notes that Yoo will likely be cleared of misconduct, and that torture techniques were approved from the highest levels of the White House.

Bill Otis still thinks that “our hypnotic obsession with Miranda” may one day result in “preventable catastrophe.”  Problem is that the ticking-bomb scenario so famously advanced by Dershowitz has never happened in history – ever – and all cases of torture are conducted without foreknowledge that an individual might have this type of information.

The only thing tougher than proving that torture is officially sanctioned is demonstrating how evidence obtained through torture can be used.  Kevin Cole highlights these substantive and procedural evidentiary problems through a paper by Kai Amboson on The Transnational Use of Torture Evidence, and Glen Greewald suggests that judicial warrants for surveillance actually makes intelligence more effective by focusing on more pertinent information.

As Gideon points out, violations of constitutional rights are not simply “technicalities.”  We might as well just replace our legal lingo with “something… something… something… dark side.”

It would make the debate so much simpler.

6. Kizzy Waller

Kizzy Waller is Kunta’s daughter, through his wife Belle.  Like most slaves, Kizzy did not have access to education.  She was secretly taught how to read by her master’s nice.  When it was discovered that Kizzy was literate, she was separated from her family.

Saying goodbye is always hard to do.  This week we’re saying farewell to Rob Ambrogi at Legal Blog Watch, who won’t be blogging there any more.  You can still hunt him down on Law Sites and Media Law.

Kizzy is then sold to a man in North Carolina named Tom Moore, who violently rapes her.  Rape is obviously a cruel act – some would even say inhumane.  But Prof. David Cassuto of Pace Law points out that comparing animals to humans though is bound to lead to folly.  This is what he quotes over at the Animal Blawg,

Intelligent? Pretty much all they [dolphins] do is swim, eat, & talk to each other. Oh, there is one more thing they do?
For those who think of dolphins as oh-so-sweet, innocent cuddly creatures, um, male dolphins often gang-rape females.
Liberals are always trying to minimize the distinctions between man & beast, man & woman, man & God, as well as good & evil.

Hostility towards black women may not always be as violent in today’s context, but there are legal recourse towards such incidents as well.  Yolanda Young points out the case of Kamisha Menns, a Jamaican-born lawyer who filed a complaint against Howrey for creating a hostile work environment,

At some point after moving to Brussels, Menns says in her complaint, she began being removed from projects despite receiving compliments on her work from several partners. She says her workplace was shifted to a different floor from that of other lawyers. When she reached out to the office?s managing partner, Trevor Soames, the complaint alleges, Menns was told ?that because she was an ?impressive woman? Ms. Menns made Howrey?s white employees feel uncomfortable.? The complaint alleges that Soames also told her that because she was the first black associate to work in the office, the office staff?s treatment of her might be influenced by the fact that ?they had never before been forced to be in a ?subordinate position? to a black person.?

The complaint goes on to allege that the situation only got worse when she reached out to firm leaders, including the Washington-based diversity committee and CEO Robert Ruyak. In a June 2, 2009, meeting, a day after Menns sent an e-mail to Ruyak and eight members of the diversity committee outlining the allegedly discriminatory treatment, Menns was fired.

Yolanda hosted Blawg Review #195 on Martin Luther King Day last year, and it’s still worth checking out.

It’s not just black women that have it tough in law firms.  Ms. JD updates us on CBS’s The Good Wife, where female associates are being relegated to clerical work

Sometimes employment lawsuits go too far.  Michael Young of Who’s the Boss suggests that the Supreme Court of California’s ruling in Chavez v. City of Los Angeles could help reign in attorney’s fees for employment lawsuits in that state.  The employee in Chavez sought to turn a $11,500 employee verdict into an attorney?s fee application for $870,000, a claim that was denied on appeal by the court:

WHAT?S THE IMPACT OF THIS CASE?

Here?s the $870,000 question:  Will Chavez have any impact on either (a) the filing of unmeritorious or marginal employment lawsuits; or (b) the overlawyering of simple employment lawsuits?

One could say that the California Supreme Court is sending a message to the bench and bar that the GELP [Giant Employment Law Pendulum] has swung far enough in favor of the employees, and it is now time to bring it back, if but a little.  Look at the Roby decision?s reining in of punitive damage awards (blog here).  Hernandez? decision to allow limited workplace surveillance (blog here).  The decision to allow the appellate court?s Chau (Starbuck?s tip) decision to stand (blog here and here).  And now Chavez ? it?s ok not to award attorney?s fees to successful employee plaintiffs.

But will anyone listen?  Now that the Court That Must Be Obeyed has expressly blessed the trial court?s discretion to deny attorney?s fee awards to employee plaintiffs who recover less than $25,000 in unlimited civil actions, will the trial courts now start exercising that discretion?

Now that employees who obtain only relatively small recoveries can be denied their attorney?s fees, will plaintiff?s attorneys be more selective in the cases they take?  Will they litigate the smaller cases more in line with their actual value?  Will they be sufficiently discouraged to overlitigate the small ones such that the settlement value of the small cases are actually in line with the claimed injury suffered by the employee?

Will there be more balance between the interests of employers and employees in California courts?  Is that Pendulum swinging back?

The jury is out?

Speaking of mega-damages, Erik Magraken of BC Injury Law presents a case with $12 million damages  for personal injuries awarded by a jury in Ciolli v. Galley. As he explains in the post, we’re not normally allowed those kinds of numbers in Canada, and the case is already heading to the Court of Appeal.

5. Chicken George

Chicken George was the only child of Kizzy Waller.  He was conceived through rape by his mother’s master, and gets his name from his profession as a cock-fighter.  Many slaves were raised by parents who were not biologically theirs, by virtue of prevalent rape and routine separation of families. Adam Kolber of the Neuroethics and Law Blog is discussing fractional parenting of another kind, of surrogacy in A.G.R. v. D.R.H., and artificial insemination resulting in people having several parents.

At the age of 18, Chicken George meets a fellow slave named Matilda.  They get married in 1827, and eventually have eight children.  In the television adaptation of the book, Matilda says to George at one point, ?I don?t see you with my eyes, I see you with my heart.? It’s awfully reminiscent of the line from Avatar, where the Na’vi greet each other with, “I see you.”

Although Charon QC already mentioned Avatar in Blawg Review #225, the topic is worthy of another incarnation here given that sales have surpassed $1 billion.  Mitch Kowalski of the Legal Post points us to some strong property and market economy themes outlined in David R. Henderson’s review,

Some writers who are generally my allies in favor of capitalism and free markets have been critical of the movie Avatar… But I don?t think Avatar is an attack on capitalism. One could leave the movie and have no idea, based on just the movie, about James Cameron?s view of capitalism. And while it did have some clichés (most movies do), I didn?t find it loaded. So what is Avatar? In fact, Avatar is a powerful antiwar movie ? and a defense of property rights. For that reason, I found it easy to identify with those whose way of life was being destroyed by military might.

David Boaz also claims there are strong property rights themes in Avatar, and says that there is some subtle right-wing appeal for those looking for it.  Dante Atkins resists ideological fault lines, while Mark at Libertas et Memoria sees it much simpler:

I like a good story and all, but I also am a fan of humanity.  If I see a movie and it’s aliens vs. humans, I’m rooting for the humans…  If the movie is humans vs. apes, I’m rooting for the humans.  Nothing against apes, but I’m going to root for the humans.  Now, if the movie was apes vs. aliens, I’m going to root for the apes.  My default position, in the absence of humans, is to root for the Earth-team. So, if we ever see the movie Dolphin vs. Predator, I’m cheering for the dolphin.  But if it’s humans vs. aliens, I’m cheering on the humans.  What about humans vs. orcs, you say?  I’m on the side of the humans.  And that goes for wood elves, replicants, Cyclons, whatever.  If it’s somebody else vs. humanity, I want the humans to win.

Would he feel the same way if he knew that the dolphins have a dirty little secret?

Eric Brown says forget about Avatar, we should all go see the Sundance film, Casino Jack and the United States of Money, a wild tale about Jack Abramoff, campaign finance, political corruption, and “sex slaves in the Mariana Islands.”  Probably not as much right-wing appeal here, but you’ve got to wonder if Obama is going to stop this type of slavery as well (or eve be able to).   The film’s director, Alex Gibney, does provide some commentary about campaign financing,

…as bad as we think it is, it’s even worse… and every day it’s getting worse and worse and worse… Very good people may be turned to a very corrupt direction, because they spend so much of their time trying to raise money… the only hope is for people to get angry.

Some angry farmers in Canada are looking for their marketing freedom, after the Supreme Court of Canada declined to hear an appeal in Canadian Wheat Board v. Attorney General of Canada. If you’re looking for some raw milk with those wheaties, you have the freedom to in Ontario after a ruling before a justice of the peace in Newmarket.  I’m just glad that chickens do not provide milk, raw or otherwise (so-called chicken milk is actually produced from meat).

Todd Harrison gives us a backgrounder to the raw milk saga on the Prededent Law blog.   But Connie Woodcock in The Sun isn’t so enthusiastic,

I?ll put my biases right up front. I?m a dairy farmer?s daughter and I wouldn?t drink raw milk if you paid me… But hey, you want food freedom. And besides, raw milk tastes so good, right?
…So while the Ontario government mulls over an appeal ? and I hope they do ? drink all the raw milk you like. Go nuts. Feed it to your kids. Ignore the danger and let?s hope nobody gets sick. Or dies.

If someone does unfortunately get sick, Bill Marler can say, “I told you so.”  His post from last month covers some of the personal injury cases he’s handled directly related to raw milk infections, and he mentions a current warning in Saratoga County over possible Campylobacter contamination.

Besides, we all know that milk  is a gateway drug to much more dangerous drugs like crack cocaine.

4. Tom Murray

Tom was the fourth son of Chicken George and Matilda, and becomes a blacksmith as an adult.  Tom marries a Native American slave, Irene.  During Tom’s life the slaves are freed, but former slavemasters turn to KKK to vent their feelings towards Blacks. Tom discovers identity of nightriders by etching a symbol on the horseshoes, and takes this evidence to the Sheriff, who in turn tips off the KKK.

Most hate crimes, including those perpetrated by the KKK against blacks, stem from fear.  White landowners feared retaliation from former slaves who had been subjected to horrendous abuse and mistreatment.  They feared loss of wealth once inexpensive labour supplies dried up.

The Bob Edwards Show recently played a speech from Hollywood actress, Phyllis Kirk, entitled Freedom from Fear,

I believe it is in fear that we commit the crimes of intolerance and prejudice and what seems to me to be perhaps the saddest, most grave crime of all, our resistance to change. Afraid, we fail to see that the change is the natural and good fruit of knowledge and growth. We cling to the familiar because it is familiar and seems, therefore, to be secure. We butcher the unfamiliar and slaughter justice with the same stroke. Frightened, we seek love only for ourselves and forget to search for love in ourselves.

Although it’s not 40 acres, Texas Wills and Trusts Law Online describes why do-it-yourself legal solutions aren?t always cost-conscious as they may appear.

Tom also lived during the American Civil War, where North and South fought over the right to own slaves.  Most historians today acknowledge that economics played a far more important role in the conflict than either racism or rights-based advocacy.

Another war is in the headlines this week, this one in Iraq, largely due to former PM Tony Blair’s testimony.  Yamin Zackaria is pessimistic of the outcome,

The ineffectual Chilcot Inquiry was never designed to account Tony Blair; rather it appears to have served as a lesson for future Prime Ministers not to make ?administrative? errors like submitting dodgy dossiers. Moreover, it gave Tony Blair an opportunity to present his side of the story in a casual manner.

If innocent people were killed because of an illegal war, then a crime has taken place. Therefore, Blair should have faced a panel of experts from neutral countries, selected by the UN. The process would have focused on the legality of the war, and the consequence for the innocent Iraqis; depending on the outcome, it might have formed the basis for a criminal prosecution.

Lawrence Solum discusses the lexicon of legitimacy, as in ?The invasion of Iraq does not have a legitimate basis in international law,? but expresses unease over its use because of ambiguity and the lack of theoretical analysis.

Richard Hall thinks it’s unlikely Blair will ever be prosecuted by the ICC for the Crime of Aggression, which the court will attempt (again) to define this summer, because it will lack temporal jurisdiction. Steve M. at Dissenting in Part claims he still likes Obama, who has maintained his Iraq withdrawal schedule, though he’s still disappointed in part over national security issues.

Oh, and in case nobody told you, the Marines withdrew from Iraq this week after seven years – victorious, of course.  Everything is going to be hunky-dory there from now on.

It seems that burn pits in Iraq are also becoming the subject of lawsuits, as Jon L. Gelman points out that waste management regulations outside of the U.S. must still comply with the National Environmental Policy Act.  Supposedly they can expose veterans to toxic chemicals, which may  have some medical effects.  Douglas Berman mentions a bill in Kansas, which would provide reduced sentences for veterans dealing with PTSD.

Trauma of a different kind is on Jamie Leigh Jones’ mind, as the former Haliburton employee continues her fight to sue the company after being allegedly raped by military contractors in Baghdad in 2005.  The company claims that the contract she signed requires mandatory arbitration in place of litigation.

Erik Gerding thinks the discussion about the role of corporations in society isn’t over, connecting two cases that would appear to be unrelated – the recent SCOTUS decision in Citizen United v. Federal Election Commission, and Google’s conflict with China.  Russell McOrmond objects to Secretary of State Hillary Rodham Clinton’s characterizations in her Jan. 21 “Remarks on Internet Freedom,”

Ms. Clinton, and possibly the Obama administration as a whole, are suggesting that the infringement of patents, copyrights, trademarks and related exclusive rights are comparable to terrorist recruitments, and warrant extreme measures to stop.

Watch it Russell…  you are either with us, or with the copyright infringers.

3. Cynthia

Cynthia was the youngest daughter of Tom and Irene.  She married Will Palmer at 22, and had to endure the full brunt of the Jim Crow laws.  The foremost of these were the literacy tests, used to deny African-Americans suffrage.  By deliberately excluding African-Americans from proper education, the government was able to effectively deny them the vote, thereby preventing them from collectively influencing or affecting public policy.

The role of special interests in a democracy is still an issue of contention.  Although corporations are hardly a disempowered minority, some claim Citizen United will benefit Republicans the most.  Chakanya Sethi, a Canadian law student, outlines some of the arguments in the case, and what the fallout might be.

David Oxenford of the Broadcast Law Blog suggests that the implications of Citizen United might be a return of the Zapple Doctrine (23

Full post as published by Slaw.ca on February 01, 2010 (boomark / email).