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Papers by Alfred L. Brophy
SSRN Electronic Journal, 2008
SSRN Electronic Journal, 2017
In the thirty years leading into Civil War faculty and students at Washington College and the Vir... more In the thirty years leading into Civil War faculty and students at Washington College and the Virginia Military Institute discussed ideas about adherence to Union, the legal justification of slavery, slaves' claims to freedom, and jurisprudence. Their discussion of jurisprudence included the need for adherence to law, and the roles of morality, sentiment, and utility in law. This article draws upon public addresses, like graduation speeches, at Washington College and VMI, to recover the sophisticated legal ideas in circulation in Lexington. Washington College was a place of Whig values of Union, adherence to law, and concern for utility. Speakers supported common Whig ideas, including the need for republican government to check excesses of democracy and a focus on the ways that a well-ordered society and respect for property and Christianity led to moral and economic progress. It also moved from a place where faculty held Enlightenment ideas about freedom-even if circumscribed by economic reality-to a place where slavery was embraced, partly because it was part of the Constitution. By contrast, at the Virginia Military Institute, pro-slavery and pro-secession ideas were more prevalent. The constitutional visions at moderate Washington College and pro-secession institutions at more radical places, like the University of Virginia, William and Mary, and the College of Charleston, reflected the wide range of Southern ideas about Union, slavery, utility, sentiment, Republicanism, and constitutionalism. Those ideas framed the Southern response to political changes, as Southerners discussed the mandates of jurisprudence and the Constitution in the years leading into War.
SSRN Electronic Journal, 2014
In August 1825 several free, young black people were enticed onto a ship in the Delaware River al... more In August 1825 several free, young black people were enticed onto a ship in the Delaware River along the Philadelphia waterfront. Thus began their descent to the heart of the old South. They were kidnapped and held aboard a ship destined for a stop somewhere near Cape Henlopen, Delaware. Some days later they were carried by wagon to Maryland's eastern shore and another ship took them further south. They walked across Georgia and into Alabama. One young man, Cornelius Sinclair, was sold in Tuscaloosa. He was a free person converted into a slave. But that was not the end. A local minister helped Sinclair by filing a lawsuit to ask for his freedom. A slave-owning judge presided over the trial that freed Sinclair. The newly freed Sinclair returned to Philadelphia to face down one of his kidnappers. Sinclair's story is one of epic proportions. It is a nineteenth century version of the Odyssey. And while Sinclair's journey took fewer years than Odysseus', Sinclair traveled far. This story is one of the dark evil in human hearts and also of the triumph, even if in greatly circumscribed fashion, of the rule of law. It is a story of a most unexpected turn in a legal system dedicated to the maintenance of the system of slavery. While there has been some previous discussion of Sinclair's case, that story has been told only briefly and exclusively from the perspective of the anti-slavery press and records in Philadelphia. This is the first time that the Tuscaloosa jury trial has been told, or even known. And in this case study one can see the difficulty that southern jurists, slave-owners, and litigants had in dealing with the central tendency of the slave law in contrast with considerations of humanity and justice. There might have been some content, even if extremely limited, to the rule of law.
BC Third World LJ, 2004
Abstract: This Article exanshies the current landscape of reparations for slavery. identifihig th... more Abstract: This Article exanshies the current landscape of reparations for slavery. identifihig the contotuts of reparations lawsuits and exploring the ability of tort law to help apportion moral culal) bility hi tile reparations context. It first exambies several possibilities for ...
SSRN Electronic Journal, 2014
Legal technology helped respond to the impersonal market revolution. The data have several implic... more Legal technology helped respond to the impersonal market revolution. The data have several implications. They reveal how people reacted to the expanding, impersonal economy where property owners frequently had to rely on trust, even if it was dangerous to do so because it was difficult to police the actions of agents. That era of the breakdown of "trust" was a central impetus to the turn to trust documents to protect a family's wealth. The data show the importance of legal technology in adapting to a rapidly changing economy and a rapidly expanding world. They also demonstrate the rapid rise in sophistication of trusts and relocate the roots of modern trust law, such as the spendthrift trust, to the pre-Civil War era, even though it is frequently written about as a device of the postWar era.
SSRN Electronic Journal, 2009
The Most Esteemed Act of My Life" combines an empirical study of probate in Greene County, Alabam... more The Most Esteemed Act of My Life" combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families-and especially how male testators were suspicious of loss of their family's wealth through their daughters' marriages. Second, the testators used sophisticated trust mechanisms for both managing property and keeping it within their families. In the antebellum era, Americans celebrated the ways they harnessed technologies, from the steam engine to the telegraph and printing press, to create wealth and improve society. This study reveals that trusts should be added to that list of technologies that assisted in the creation and management of wealth. Finally, the data reveal the salience of enslaved human property-often managed through trusts after their owners died and also frequently divided between family members-to the maintenance of family wealth. While some in the United States at the time-including some jurists, as well as politicians and novelists-questioned the desirability to our country of inheritance, the Greene County data show an extraordinary devotion to maintenance of family wealth. The findings in "The Most Esteemed Act of My Life" invite further study in other places in the South, as well as in the North, to test the extent to which the existence of wealth (particularly a wealth based on human property) led to different patterns of bequest from those seen among some of our nation's wealthiest individuals at critical period of American history.
SSRN Electronic Journal, 2012
Reading Professor Obama mines Barack Obama's syllabus on "Current Issues in Racism and the Law" f... more Reading Professor Obama mines Barack Obama's syllabus on "Current Issues in Racism and the Law" for evidence of his beliefs about race, law, and jurisprudence. The syllabus for the 1994 seminar at the University of Chicago, which provides the reading assignments and structure for the course, has been available on the New York Times website since July 2008. Other than a few responses solicited by the New York Times when it published the syllabus, however, there has been little attention to the material Obama assigned or to what it suggests about Obama's approach to the law and race.
SSRN Electronic Journal, 2017
Black Power in a Prison Library" focuses on a list of ninety books on the black experience in Ame... more Black Power in a Prison Library" focuses on a list of ninety books on the black experience in America that were added to the Marion, Ohio Correctional Institution in 1972. It uses the list as a way of gauging what books the plaintiffs (and thus the court) thought were essential to telling the African American experience. And in that way, we can use the list to reconstruct the contours of the bibliographic world of the African American experience in the early 1970s. The list reflects an interest in the history of slavery, the eras of Reconstruction and Jim Crow, literature of the Harlem Renaissance, the 1960s Civil Rights Movement, and contemporary works on Black Power. Notably thin is prison literature. Together, the books help form a picture of the critique of law made by Black Power writers and the ways those claims built on historical, sociological, and Civil Rights literature. The book list, thus, suggests some of the ways that books propagated and gave definition to Black Power claims.
NYU Ann. Surv. Am. L., 2001
... Foner emphasizes Thaddeus Stevens' desire to hurt the South, but run-ning alongside the ... more ... Foner emphasizes Thaddeus Stevens' desire to hurt the South, but run-ning alongside the rhetoric of destruction of the Southern aristocracy ... German law establishing reparations pro-gram for victims of the Nazi slave and forced labor programs); Emily J. Henson, Comment, The ...
SSRN Electronic Journal, 2008
SSRN Electronic Journal, 2017
In the thirty years leading into Civil War faculty and students at Washington College and the Vir... more In the thirty years leading into Civil War faculty and students at Washington College and the Virginia Military Institute discussed ideas about adherence to Union, the legal justification of slavery, slaves' claims to freedom, and jurisprudence. Their discussion of jurisprudence included the need for adherence to law, and the roles of morality, sentiment, and utility in law. This article draws upon public addresses, like graduation speeches, at Washington College and VMI, to recover the sophisticated legal ideas in circulation in Lexington. Washington College was a place of Whig values of Union, adherence to law, and concern for utility. Speakers supported common Whig ideas, including the need for republican government to check excesses of democracy and a focus on the ways that a well-ordered society and respect for property and Christianity led to moral and economic progress. It also moved from a place where faculty held Enlightenment ideas about freedom-even if circumscribed by economic reality-to a place where slavery was embraced, partly because it was part of the Constitution. By contrast, at the Virginia Military Institute, pro-slavery and pro-secession ideas were more prevalent. The constitutional visions at moderate Washington College and pro-secession institutions at more radical places, like the University of Virginia, William and Mary, and the College of Charleston, reflected the wide range of Southern ideas about Union, slavery, utility, sentiment, Republicanism, and constitutionalism. Those ideas framed the Southern response to political changes, as Southerners discussed the mandates of jurisprudence and the Constitution in the years leading into War.
SSRN Electronic Journal, 2014
In August 1825 several free, young black people were enticed onto a ship in the Delaware River al... more In August 1825 several free, young black people were enticed onto a ship in the Delaware River along the Philadelphia waterfront. Thus began their descent to the heart of the old South. They were kidnapped and held aboard a ship destined for a stop somewhere near Cape Henlopen, Delaware. Some days later they were carried by wagon to Maryland's eastern shore and another ship took them further south. They walked across Georgia and into Alabama. One young man, Cornelius Sinclair, was sold in Tuscaloosa. He was a free person converted into a slave. But that was not the end. A local minister helped Sinclair by filing a lawsuit to ask for his freedom. A slave-owning judge presided over the trial that freed Sinclair. The newly freed Sinclair returned to Philadelphia to face down one of his kidnappers. Sinclair's story is one of epic proportions. It is a nineteenth century version of the Odyssey. And while Sinclair's journey took fewer years than Odysseus', Sinclair traveled far. This story is one of the dark evil in human hearts and also of the triumph, even if in greatly circumscribed fashion, of the rule of law. It is a story of a most unexpected turn in a legal system dedicated to the maintenance of the system of slavery. While there has been some previous discussion of Sinclair's case, that story has been told only briefly and exclusively from the perspective of the anti-slavery press and records in Philadelphia. This is the first time that the Tuscaloosa jury trial has been told, or even known. And in this case study one can see the difficulty that southern jurists, slave-owners, and litigants had in dealing with the central tendency of the slave law in contrast with considerations of humanity and justice. There might have been some content, even if extremely limited, to the rule of law.
BC Third World LJ, 2004
Abstract: This Article exanshies the current landscape of reparations for slavery. identifihig th... more Abstract: This Article exanshies the current landscape of reparations for slavery. identifihig the contotuts of reparations lawsuits and exploring the ability of tort law to help apportion moral culal) bility hi tile reparations context. It first exambies several possibilities for ...
SSRN Electronic Journal, 2014
Legal technology helped respond to the impersonal market revolution. The data have several implic... more Legal technology helped respond to the impersonal market revolution. The data have several implications. They reveal how people reacted to the expanding, impersonal economy where property owners frequently had to rely on trust, even if it was dangerous to do so because it was difficult to police the actions of agents. That era of the breakdown of "trust" was a central impetus to the turn to trust documents to protect a family's wealth. The data show the importance of legal technology in adapting to a rapidly changing economy and a rapidly expanding world. They also demonstrate the rapid rise in sophistication of trusts and relocate the roots of modern trust law, such as the spendthrift trust, to the pre-Civil War era, even though it is frequently written about as a device of the postWar era.
SSRN Electronic Journal, 2009
The Most Esteemed Act of My Life" combines an empirical study of probate in Greene County, Alabam... more The Most Esteemed Act of My Life" combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families-and especially how male testators were suspicious of loss of their family's wealth through their daughters' marriages. Second, the testators used sophisticated trust mechanisms for both managing property and keeping it within their families. In the antebellum era, Americans celebrated the ways they harnessed technologies, from the steam engine to the telegraph and printing press, to create wealth and improve society. This study reveals that trusts should be added to that list of technologies that assisted in the creation and management of wealth. Finally, the data reveal the salience of enslaved human property-often managed through trusts after their owners died and also frequently divided between family members-to the maintenance of family wealth. While some in the United States at the time-including some jurists, as well as politicians and novelists-questioned the desirability to our country of inheritance, the Greene County data show an extraordinary devotion to maintenance of family wealth. The findings in "The Most Esteemed Act of My Life" invite further study in other places in the South, as well as in the North, to test the extent to which the existence of wealth (particularly a wealth based on human property) led to different patterns of bequest from those seen among some of our nation's wealthiest individuals at critical period of American history.
SSRN Electronic Journal, 2012
Reading Professor Obama mines Barack Obama's syllabus on "Current Issues in Racism and the Law" f... more Reading Professor Obama mines Barack Obama's syllabus on "Current Issues in Racism and the Law" for evidence of his beliefs about race, law, and jurisprudence. The syllabus for the 1994 seminar at the University of Chicago, which provides the reading assignments and structure for the course, has been available on the New York Times website since July 2008. Other than a few responses solicited by the New York Times when it published the syllabus, however, there has been little attention to the material Obama assigned or to what it suggests about Obama's approach to the law and race.
SSRN Electronic Journal, 2017
Black Power in a Prison Library" focuses on a list of ninety books on the black experience in Ame... more Black Power in a Prison Library" focuses on a list of ninety books on the black experience in America that were added to the Marion, Ohio Correctional Institution in 1972. It uses the list as a way of gauging what books the plaintiffs (and thus the court) thought were essential to telling the African American experience. And in that way, we can use the list to reconstruct the contours of the bibliographic world of the African American experience in the early 1970s. The list reflects an interest in the history of slavery, the eras of Reconstruction and Jim Crow, literature of the Harlem Renaissance, the 1960s Civil Rights Movement, and contemporary works on Black Power. Notably thin is prison literature. Together, the books help form a picture of the critique of law made by Black Power writers and the ways those claims built on historical, sociological, and Civil Rights literature. The book list, thus, suggests some of the ways that books propagated and gave definition to Black Power claims.
NYU Ann. Surv. Am. L., 2001
... Foner emphasizes Thaddeus Stevens' desire to hurt the South, but run-ning alongside the ... more ... Foner emphasizes Thaddeus Stevens' desire to hurt the South, but run-ning alongside the rhetoric of destruction of the Southern aristocracy ... German law establishing reparations pro-gram for victims of the Nazi slave and forced labor programs); Emily J. Henson, Comment, The ...