In this episode, UVA Law 3L Marley Peters and I continue our discussion with Brittany Farr, Assistant Professor of Law at NYU School of Law. We’re discussing her article, Breach By Violence, which is forthcoming in the UCLA Law Review. It analyzes the use of private law by sharecroppers and tenant farmers in the Jim Crow South to address violent breaches of contract by landlords. To hear the full interview, make sure to also listen to the prior episode, Episode 3.
Farr is a scholar of private law and race. With more than a decade of interdisciplinary training, her research draws on history, legal theory, and cultural studies to theorize how marginalized populations have availed themselves of otherwise inhospitable legal regimes. In particular, her research focuses on enslaved and free African Americans’ use of contract law during the nineteenth and early twentieth centuries and interrogates the ways in which contract law mediated African Americans’ relationship to bodily autonomy, economic freedom, and legal agency both during and after slavery.
Brittany Farr NYU Homepage: https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=57053
Interview with Samuel James (S. J.) and Leonia Farrar, May 28, 2003.
Interview K-0652. Southern Oral History Program Collection (#4007). https://docsouth.unc.edu/sohp/playback.html?base_file=K-0652&duration=01:29:20
Oral history with 84 year old black female, Joiner, Arkansas https://www.loc.gov/item/afccal000030
[00:00] Brittany Farr: I lived in La. During my PhD. So I lived in La for a long time and constantly have a lot of friends in the entertainment industry and, like, know a lot of stories that are awful.
[00:10] Kim Krawiec: I lived in La. And made no friends in the entertainment industry.
[00:13] Brittany Farr: I don't know. I came out of La.
[00:14] Kim Krawiec: But it's cooler than I am.
[00:16] Brittany Farr: A producer credit and a headshot just from, like like in the water, they're like, Here you go, you've been here long enough.
[00:23] Kim Krawiec: It's a testament to the fact that you're cooler and more interesting than I am.
[00:27] Brittany Farr: But no, go ahead. Certainly not.
[00:29] Kim Krawiec: Hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Krabbik. In this episode, UVA Law Three l, Marley Peters and I continue our discussion with Brittany Farr, assistant professor of Law at NYU School of Law. We're discussing her article, Breach by Violence, which is forthcoming in the UCLA Law Review. It analyzes the use of private law by sharecroppers and tenant farmers and the Jim Crow South to address violent breaches of contract by landlords. To hear the full interview, make sure to also listen to the prior episode. Episode Three all of us, myself included, were fascinated to learn anything that you know about the lawyers and legal strategy involved here. So I'm going to turn to Marley to get us started on that.
[01:29] Marley Peters: I was just wondering, basically, since you would explain the difference between share croppers and share tenancy, if the attorneys had, like, a legal strategy where they were like, oh, this will work in your favor. We're now going to try to tell the facts in a way that is going to align more with it seemed like shared tenancy is the one that gave you more, I guess, pros and easier. Not easier, but I'm sure it was still hard, but a stronger legal argument. And so I just was curious about that, if that was even part of the discussion and if you had found any records that were showing the strategy at play.
[02:06] Brittany Farr: Yeah, unfortunately, nothing super explicit. It is clear from some of the archival records that certain lawyers did have very clear strategies. So, for example, in the Melton v. Allen case, where the tenant is attacked with a machete and he slices his head and cuts off his phone, in that case, the attorney in his closing arguments brings up the fact that black people only recently were freed from slavery and the jury should take pity on him and all of these things. And so clearly was trying to dredge up racial sympathy as well as by using sort of paternalistic narratives in an effort to win the case. And that the judge kind of slaps him on the wrist for that and says, you went too far. That's beneath us. We don't need to appeal to those sorts of arguments. So some lawyers did that it seems clear that a lawyer would have argued for tenancy if he could, just because that was a stronger argument. And that's kind of what you see happening in the cases where it's not clear is, for the most part, they lean toward tenancy. I think that the sharecroppers in some cases may have in many cases also may have understood the legal system and ramifications and likely suggested some of these things themselves. And so there's an oral history where someone talks about his reason for bringing a case. And in that same interview, he makes a reference to a landlord kind of trespassing in his home and harassing his wife. And he goes to the landlord and says, you can't be here. Get off my property. And the landlord says, you're a sharecropper. I can be anywhere I want. And the man says, no, I'm a tenant. You have to leave. So I think that some of them did also understood those differences. So it may have been coming jointly from the plaintiffs and the lawyers. Unfortunately, none of the lawyers seem to have left papers behind that I can find, but I know something about a couple of them. So in Elaine, Arkansas, you had Ulysses Bratton, who was the same attorney who argued hodges, who had clearly kind of before the Supreme Court, had clearly demonstrated a commitment to some kind of racial equality, and that's why the sharecroppers union sought him out. So there's sort of one class of lawyers who they were doing this because they believed in it. There's another group that I think maybe were new attorneys who just needed clients. I think winning these kinds of cases was a way to prove that you were good at being a lawyer, because they would have been hard to win. And then a third, which is kind of these cases were a way to sort of politic between two powerful planters in a community. And so there's a case that was brought continually over the course of eight years against someone who was kind of described as a merchant prince in his community. And so it seems like there it might have been some other outside forces like supporting that case. And there's a couple like that where one of the in Rhodes v. Pointer, the defendant is a renowned cotton merchant, and the plaintiff's lawyer is a judge and a plantation owner whose daughter's wedding is written up in the newspapers is described as a cotton wedding. And so clearly, these are two really big players in, like, the Texas cotton industry on either side. And so I think there's a lot of motivations for the lawyers. Unfortunately, I haven't found any specific things from the lawyers themselves yet.
[06:06] Kim Krawiec: This is a good segue for a couple of questions that Mary had. I think they build on the discussion that you were just having.
[06:14] Brittany Farr: Hey, Brittany.
[06:15] Mary Talkington: So one of my questions you already kind of answered there, which was just kind of who were the lawyers helping out here? And it seems like you had a number of different people, different motivations. Were there any sharehoppers who were able to find success going pro stay?
[06:33] Brittany Farr: So if they were, they didn't make it to the State Supreme Court. Everybody had a lawyer. Okay, yeah.
[06:40] Mary Talkington: Thank you. The other question that I had was that you mentioned the case where the lawyer was he was really trying to he was really building on the idea that, oh, people haven't been out of slavery that long and using these stereotypes. Like, she's just a vulnerable black person. He's helpless, he needs white assistance. And so this struck me as really disturbing that in order to receive some small division of justice and like a judgment that didn't even recognize the violence that was done to the sharecroppers and share tenants, minority sharecroppers had to degrade themselves and bolster this white supremacist image. And do you think this is a burden that in some form is still placed on black and brown people today when they're seeking justice through the criminal justice system, civil law, private law claims?
[07:35] Brittany Farr: Yes, absolutely. And I am not an expert on contemporary law, but certainly from conversations that I've had with capital defense lawyers, and there's difficult decisions that need to get made about how to present someone's story and how to present someone's story in a light that is, like, legible to other people and that is doing the best thing for your client. And so I think there are stories about, I think in some death penalty cases that kind of reinforce notions about, like, a culture of poverty or whether someone is culpable or not because of the culture that they're brought up in those kinds of things. And I think it also happens in conversations around, like, mental illness and crime. Melissa Maluski has a study of a similar time period that has a lot more breadth in terms of cases. So she has a lot of trial court cases as well as appellate cases and finds that this kind of narrative device, like reinforcing stereotypes happens a lot across different claims and is successful. And so I don't think that this was a unique situation, even though I only find one particular example of it. And I don't know that it's something that has gone away with time, in part because legal cases are about individuals and it's about storytelling, and there are certain tropes and archetypes and stories that are powerful. And so I think it can be really difficult to avoid doing those kinds of things.
[09:19] Kim Krawiec: And, you know, the first thing I thought of when Mary asked this question was the clear parallel to gender in a lot of cases, including modern cases. And, I mean, I see it in cases ranging from contract to corporate to family. And often they work and often they don't, but it's fascinating.
[09:40] Brittany Farr: Elizabeth Holmes, I don't know if you were right. Yes, there's a whole article about her fashion and the ways that she dressed, which was very different from how she presented herself when she was running theranos and instead it was soft colors, her hair was down, she had the baby bag. All of these things to evoke like maternal femininity.
[10:05] Kim Krawiec: Absolutely. It's complicated. Right, because on the one hand, in that case, yes, clearly they were trying to soften her, it seemed, through those appeals to femininity and motherhood. But at the same time, one often sees in particular an unsophisticated housewife trope in the litigation that sort of references stereotypes of women, and especially stay at home spouses, as being sort of weak and dependent on the men in their lives. I always notice that you're in and you're out with these cases. And so Mary's question made me think of that in this context as well.
[10:43] Brittany Farr: Yeah, absolutely.
[10:44] Kim Krawiec: Reidar had some questions about the payments, which you alluded to, but right. I think you're up next.
[10:51] Brittany Farr: Yes.
[10:51] Reidar Composano: So I was just curious about the lawyers motivations. You mentioned some outside forces in particular cases, but were you able to uncover fee structures where they paid on a contingency? What led them to be willing to.
[11:05] Brittany Farr: Pick up these cases? Yeah, unfortunately, no. But my best guess is that most of them, if not all of them, would have been on contingency because the shareholders just wouldn't have had the money to pay out of pocket. And so in the Babe Tony case, for example, she's a single mother in Texas. There's reference in that archival file to the fact that she couldn't pay some of the bonds and fees associated with the case and how were they going to deal with that. And so if she couldn't pay those fees, I don't think she could pay the attorney's fees. So I think it had to have been contingency or there was a patron kind of supporting it.
[11:46] Kim Krawiec: One of the cases that I kept coming back to Brittany that you mentioned in connection with, I think it was the Elaine massacre, there was a particular firm, Bratton, Brighton and Casey, and you sort of say the number of black farmers visiting those offices made local white residents concerned about future legal action. So that suggests to me they were the only game in town for black plaintiffs. Is that right? Do you know who they were? Was there some history of this firm.
[12:13] Brittany Farr: That no, no, I haven't found it. I think that's going to require a trip to Arkansas to see if I can uncover it, I think, because at least we know who Ulysses Bratton was. And so I'm hopeful that there's something that has been left somewhere, but I have not been able to find it. Yeah.
[12:31] Kim Krawiec: Okay, next we have Jen, and then we're going to come back to Babe Tony because we all had a lot.
[12:37] Brittany Farr: Of questions about that.
[12:38] Kim Krawiec: But first I thought Jen had an interesting twist where she wanted you to play the role of lawyer for a minute instead of researcher.
[12:46] Brittany Farr: So jen.
[12:47] Jenn Scoler: Hi. So, earlier you referenced how this history is kind of mistakes of successes and failures, and in some ways this might be similar to the legal strategies that you were discussing in response to Marley's earlier question. But I'm curious if you could go back and represent some of the plaintiffs whose stories you shared, whether there are any different approaches to litigation you may have taken that you haven't seen played out in the history that may have.
[13:12] Brittany Farr: Allowed for more success stories, I think. So one of the more interesting approaches happened in the Rhodes View Pointer case that I do talk about, where in that case, the plaintiff was a tenant, so owned the crops, had a right to be on the land, and the landlord had chased him off the land multiple times. And the plaintiff brings the case and what he does is waive the tort action. And so the case is only in contract, which means that the damages were limited to the value of the cotton. It happened to be a year where cotton was incredibly valuable. It also means that not only was he waving the tort action about the cotton, about the theft, the conversion, but also the ability to bring assault claims against the landlord. And I think that strategically, that probably would have made a lot of sense for a lot of people because the risk of retaliation was so high. And I think it was like kind of a way to say, you know, I just want to be paid for the work that I did and I'm not even going to go after you for all of this other bad behavior and a way to kind of get something rather than nothing. And so it's also kind of an obscure, more obscure doctrine. And so that's the case where the case where the plaintiff attorney was a judge and also the most sophisticated legal argument, and the defendant was also like a big player in the cotton industry. And so kind of interesting that we see the more complex legal argument happening there. And I think that that could have worked for some people. Of course, it depends on why people are deciding to bring this case. There's a lot of dignitary harms happening. And so to waive the tort action, I think in some ways might feel like sort of saying that it's okay that that violence happened, and so it would really depend on what the person wanted.
[15:15] Kim Krawiec: We are going to now turn to some questions about the cases and the parties. As I said, we all have questions about Babe Tony. OK, so let me turn to Marley to get us started on this.
[15:24] Marley Peters: So the story of Babe Tony really stood out to me because it involved a woman as a plaintiff. And I think that seemed to be like an outlier on the cases. And so we were just wondering what was the gender dynamics at play like regarding who was a sharecropper, who was a share tenant? And in your article, you do touch on the fact that a lot of times the wives of the sharecroppers would also be experiencing sexual violence from the landlords. And so the story of Babe Tony, did she have the contract herself or was it through a family member? And what was the dynamic regarding gender with women as sharecroppers?
[16:06] Brittany Farr: Yeah, the Babe Tony story is really interesting, and I'm trying to work on a project now that is just about that case. And so we were all fascinated. Yeah, I spent the last week just going, crossing, looking at census records, trying to find her in other census records, because in the 1900 census that I have, it says that she's a widow. In the actual case file, someone asks about where her husband is, and she just says, we're living apart, and he didn't want to join this suit with me. So essentially they were still married, and the case happened only a couple of years before the census. So likely he was still alive when the census happened, which is interesting for quite a few reasons. So in terms of gender sharecroppers, generally, there were a lot of women sharecroppers. Often if they were married, the contract would be for the whole family and it would go through the husband. And actually, after the Civil War ends, one of the biggest complaints that white planters have is that black women aren't working in the fields as much, and they're very upset that black women aren't working as much and write lots of angry letters to the freedoms bureau agents trying to ask the freedomsboro agents to get black women to work more. It's not clear whether they were how much they were actually working and how much was the perception of them not working. Imagine a lot of women felt that being able to stay at home was a new right that they had versus having to work in the fields. But certainly many of them wouldn't have actually been able to afford to forego working completely. And then there were unmarried women would have contracted on their own. And I think that either they were living with their family of origin and sort of contracting that way, or they would have contracted on their own. And I found more cases with women plaintiffs actually a little bit later, and I was sad that I had to exclude them because of where I kind of cut the time off. And then there were some women who were also plaintiffs with their husband. So I have two or three cases where the plaintiffs are both husband and wife. The reason that Babe Tony is particularly interesting is because of where women's rights were at the time and coverture laws. So this is 1896, and my history on coverture is very fuzzy. But for white women, being able to work on your own, keep your own money, bring a suit on your own, I think would have been remarkable. And there was just a double standard in terms of what black women were kind of expected and coerced into doing, and then what white women were kind of not allowed to do with respect to working outside of the home and who those wages belong to. And it's something in the research I've been doing recently into Freeman's bureau documents. A question that comes up is if a wife contracts on her own and her husband wants her to break it or he wants them to move, what are they supposed to do? Like, what are the husband's rights in relation to his wife's contract? Because if it were a white couple, it would be easy, and that would sort of be what the husband says goes. But because there was such a demand for black women's labor, the Freeman's bureau agents aren't quite sure how to handle it. And then the question of sexual violence. So I have one case where there's a sexual assault and it's with a white family. I suspect that I feel pretty confident in saying that sexual assault probably happened a lot between the kind of white planters and black women working. It was unfortunately, a regular feature of during slavery, and so it just seems unrealistic that slavery would have ended and that would have would have ended as well. I think the expectation of black women sexual availability would have remained, and then they also would have been pretty vulnerable given the economic dynamic. So I've been looking through freedman's bureau records for similar claims to the suffering in this paper and have seen some where black women bring claims to Friedmansborough agents about sexual assault. So it's interesting how in this different kind of like a judiciary space, black women were able to bring kind of a broader range of claims that you don't see make it in the state court system.
[20:37] Kim Krawiec: Meghana, had a follow up question along these lines.
[20:40] Meghana Puchalapalli: Yeah. So I think you mentioned that Babe Tony's contract was let me just find the exact unremarkable routine as far as protecting her own interest. So did you find that there were any sharecropper contracts that were more sophisticated and protected the sharecropper?
[21:02] Brittany Farr: Yeah, not really. So sometimes share tenancy contracts would be a little bit different, but sharecropping contracts for the most part were unwritten, and the terms are pretty standard. Interestingly, even though the contracts were oral, you would see dispute over the terms of those oral contracts in the trials, and sometimes the sharecropper's word won out. Not often, but sometimes the sharehoppers word about what the oral contracts said one out over the planter's word, which I was surprised by, given that the contracts were oral. But I think that speaks to how strong the norms were around what these oral contracts were. And so people kind of trusted that the community understanding of what sharehopping contracts were would have been kind of what would happen. So there were a couple of share tenancy contracts that were written down and were a little bit different. And so in those cases, which were, I think, exclusively white plaintiffs, the share tenant had more land and maybe had some more responsibilities. Really, it was the fact that it was in writing and more clearly written down features of share tenancy that made it more protective.
[22:19] Kim Krawiec: The next question I have is from Bridget.
Bridget Boyd: Hi, Brittany. Thanks for being here. I know earlier you touched on, like, the difficulty of finding records of these kinds of cases, especially ones that don't make it this far in court, so it might be difficult for you to stay, but did you get the sense that, like, these instances of landlords using violence to try and get sharecroppers and tenants to breach their contracts were concentrated in more populated areas? I'm just kind of wondering if, like, places that had fewer black and poor white farmers had their landlords be sort of constrained, maybe socially and economically from engaging in that kind of behavior just because it might be more difficult to find replacement hires? Or was there such a surplus of labor that the landlords didn't really have to worry about this?
[23:12] Brittany Farr: Yeah, so I think I don't have enough cases to track any trends. But you're right in that the labor markets were different depending on the region that you were in. And so in some places there was a surplus of labor and in some places there wasn't. And that definitely impacted how the violence kind of plays out. And there's an article by Beck and Tolnae where they kind of track cotton prices and labor markets and show regionally how that impacts how many lynchings happen in certain regions. So there's definitely a relation. But I didn't have enough cases here to track that. The one difference I did see was between cotton growing regions and tobacco growers. And that has more to do less to do with the number of laborers and more to do with how the crops are actually grown. And so tobacco is really labor intensive all throughout the process. So the harvesting, I guess, is hard. And then the post harvest process, there's stuff that has to be done, whereas cotton is pretty straightforward once it's grown, you can run people off the land and hire outside laborers to do the rest of it, and it's pretty easy. And so you see the difference there in that with cotton sharecropping contracts, the violence will happen sort of after the planting is done. Then they can get rid of people. They don't have to pay anyone for all of those months, and then they can hire people right at the end. Tobacco happens after the harvest is completely over, but before payment has happened.
[24:43] Kim Krawiec: See, I knew it made sense. Bridget yeah, that's actually really interesting. So thank you.
[24:51] Brittany Farr: Yeah, I did not expect to learn about, like, tobacco harvesting.
[24:57] Kim Krawiec: There's always a little surprise. Okay, next I have a question from Rahima. I thought this was a really interesting question for reasons that we'll talk about. I'll let her ask it.
[25:10] Rahima Ghafoori: Hi, Brittany. You kind of touched on this when you answered Megana's question. And I know you mentioned earlier that functionally sharecropping and shared tendencies were pretty much the same day to day, but I was wondering if you could talk more about the perceptions of these two positions and the ambiguity surrounding them and how that may have influenced or didn't influence the contracting process itself and how one became either a sharecropper or share tenant. Because there are obviously rights and benefits that came with being one over the other. And it sounds like sometimes the sharecroppers or share tenants themselves knew of these rights. But I'm wondering how much did the landlords know and were they actively trying to avoid share tenancies? Or do they know that since they were in these powerful positions as landlords, that they could simply contract in vague terms, ex ante, knowing and expecting courts to interpret them in their favor?
[26:02] Brittany Farr: Expost yeah, I mean, I think that that's part of what happens, and I think that how deliberate is hard to say. But I think that the contracts would be vague, and landlords are maybe thinking this is a sharecropping contract and the labor is thinking this is a share tenancy contract, and that is going to always benefit the landlord because the possibility of having it be sharecropping is going to benefit them. Interestingly, in the oral histories, there were several different places where people, they would say, oh, were you a sharecropper? And someone would say, I was never a sharecropper, I only was a tenant. And so the difference between sharecropping and tenancy in terms of social status was clear to at least some people. And so, even if it may be day to day, seemed very similar. I think it mattered a lot to some people that they were a tenant and not a cropper and that, like, share croppers were kind of at the bottom of the agricultural hierarchy.
[26:58] Kim Krawiec: That was fascinating to me, Brittany, for a lot of reasons, because one of the things is that it looks like in some of the cases at least, even courts got wrong the relationship. And that happens across a wide spectrum of rules that we have, cases and contracting rules that we see. And one of the questions that I frequently have is, if courts get it confused, how well do the parties themselves understand it? And I think the temptation is often to say, well, they're not very sophisticated, so they must not have understood. But I have often wondered whether there is a type of folk wisdom that accompanies these contracts. That means that the parties themselves have a better understanding of what they're doing then we might think as outsiders and your answer suggests that they really did and that there were a lot of social and other consequences that came with this distinction that made it salient to them.
[27:47] Brittany Farr: Yeah, absolutely. And this is part of why I was sort of banging my head against the wall for so long, because when you look at the law and the little bit of legal literature that is out there, everyone says, you know, it's super clear. The difference between sharecropping and tenancy is very clear. And there are other things like sharecroppers rent on the halves and tenants it's on the thirds. And sharecroppers rent their tools and share tenants own their tools and everyone's like, it's clear. You can tell the difference. And then when you look on the ground, people say, I wasn't a cropper, I was a tenant, or I never did that, and I made more money. And like, they knew where they stood. And then you get to these cases and it's not clear what's going on and it doesn't make sense. If the law was clear and if people were clear on what they were doing, why is the case so confusing? Except that there was a benefit to the vagueness. That's kind of the one explanation that makes sense to me is that either it just wasn't worth taking the time to lay out all of these things, and if it went to litigation, the vagueness benefits the landlord. And so there's not a lot of reason for them to then put things and also people couldn't read, so putting it in writing wasn't really an option either. It's really interesting. And then the courts, I think, in part because they're somewhat removed from this practice, don't know necessarily what to make of it. And you can kind of see some cases where people, landlords are trying to game the system. So there's one case where part of what makes it difficult is that people would stay on the same place and sometimes move from sharecropper to share, tenant to cash tenant. And so year to year, their status is different. And it's like not clear what what changed when and people think, well, I was cropping for three years and tenant for four, and they go back and forth on it. So there's this one case where the sharecropper had been a tenant and sort of went back and forth and was arguing when this violence happened, I was a tenant. And the landlord says, yes, you were a tenant, but then you needed to rent a shovel from me and that made you a sharecropper because of this distinction, like, where most sharecroppers rent tools. And in that case, many witnesses are called about what they remember the relationship being and also the norms around like renting tools and stuff. And the court says it's not enough that renting one tool does not make this a sharecropping relationship. It does not shift it from one to the other. So, yeah, anyway, I think there was a benefit to the vagueness. That's the only explanation I can come up with when it seems clear in all these other realms.
[30:28] Kim Krawiec: The next question was also from Rahima.
[30:31] Rahima Ghafoori: Yeah, I was just wondering if you looked into what happened to a lot of these plaintiffs after the lawsuits. And I mean, like you wrote, revenues were pretty limited and lawsuits were seen as an act of aggression. And so how did these outcomes in favor of the plaintiffs affect their lives moving forward? And do they face any retaliatory, violence or even death, like you mentioned before? And if you don't have specific accounts of these plaintiffs, I'm wondering if you could just speak generally about what would happen after a plaintiff's successful lawsuit against the landlord.
[31:05] Brittany Farr: Yes, I don't have many specific answers for the cases in my set of cases, but that same moral history that I've referenced a couple of times where he describes his decision to sue his landlord, in that case, the judge presiding over the case may have been a justice of the Peace says you should move after he wins. It's like it's in your best interest to move out of here. And so I think for many people, winning or even just bringing the case, even just bringing the case would have been caused to move. And that's clear in the oral histories where people at least would say that you can't talk back to your landlord. If you talk back to your landlord, you'll get killed. And references to people moving in the middle of the night because they had like an altercation or an argument with their landlord and they were afraid that they were going to get killed. One case, and it's the Road Speed Pointer case, I actually found reference to stuff that happened afterwards and they moved and they moved to another part of Texas, and the plaintiff, I think, bought a building and opened up a business and they were kind of pillars of their community. So that was really exciting to see that there was a big change in their circumstances after winning this case. And obviously, I can't definitively say that winning this case is what made the difference, but I suspect it had a huge impact on the kind of trajectory of their lives.
[32:40] Kim Krawiec: The next set of questions that we have all relate to sort of modern parallels or examples, and I'm going to start with Ryder and Ryan. They had sort of similar questions. My plan is to have Ryder ask his question, then see if sorry if Ryan has any follow up on that. Great.
[33:00] Reidar Composano: So your article is largely historical, but I couldn't help but draw parallels to circumstances faced by migrant farm workers. Now, outside of the clear agricultural link between two groups, it seems like there's more that connects the two groups experiences. Particularly, your article discusses white landlord's motivations for violent behavior. And I looked at a Human Rights Watch publication that discussed similar circumstances faced by migrant farm workers today. In particular, an imbalance of power. And that's something you talk about in Alan Pointer's lawsuit against his landlord. And I'm curious if you think that your research can form discussions of the circumstances faced by migrant farm workers today in any way.
[33:43] Brittany Farr: Yeah, absolutely. So certainly a lot of the stuff that I talk about happening in the paper, those dynamics still exist in agricultural labor today in the United States. And to a certain extent, even sharecropping exists. It used to exist, like, technically in California and the strawberry industry. I think there was a court case that said you can't share crop anymore, but like many of these things, so they just started doing something kind of similar that technically isn't sharecropping but has similar kind of contractual relationships. So I had a student actually write a paper about farm workers and there's this book called labor and the Locivore where it's based on sort of a decade's worth of in depth interviews of farm workers in the Hudson Valley because it's kind of the heralded as a local farm area. Because those farms are smaller, they are exempt from the meager protections that exist for farm workers. And so those workers are even more vulnerable. And so you have some of the things that made sharecroppers very vulnerable was living where you work, right? So if you lose your job, you lose your home and then the debt relationship as well, not being able to have your rights fully enforced in court. And then an employer landlord who can violently retaliate or use the legal system to retaliate with no consequence. And I think all of that exists in farm work today. And so you're going to see similar things happening. I haven't done research into it. The question then is, is contract available as a way to protect people and or enforce rights? The tricky thing is that if workers are undocumented, if workers are undocumented, I don't know that anyone is going to feel comfortable or safe enough going into court to enforce those contract rights. And so that makes it a lot harder and so it kind of fails in that way.
[36:07] Kim Krawiec: I'm going to move to Brian with another modern example.
[36:12] Ryan Fitzgerald: Yeah.
[36:12] Bryan Blaylock: So I don't actually want to say it's a current phenomenon because I think the actions of employers isn't new. I just think, like what we call it now, I think I've actually seen it in a Wall Street Journal article dubbed Quiet Firing where you have employers that will attempt to create undesirable work environments and oftentimes it's directed at specific employees in an effort to have them quit rather than firing them. Obviously, there is this economic motive and I think in some instances it's just a personal motive, whether they just dislike a person in general, namely you're making that person ineligible for unemployment benefits. And now this doesn't compare to the experience of the sharecroppers'or the Share tenants describing your article. But I do wonder if you see some similarities and barriers that some of those employees that have been quietly fired would be facing if they tried to bring a private right of action seeking damages by reframing this quitting or resignation as a de facto termination due to the actions of the employer.
[37:20] Brittany Farr: Yeah, I mean, there's absolutely a parallel, and I think this goes to the question that Kim asked at the beginning about features of private law that may also create failures in certain situations. And I think contract law, to the extent that it does address and deal with violence and coercion, it's about violence and coercion that may happen at the time of formation of the contract.
[37:46] Mary Talkington: Right?
[37:46] Brittany Farr: And so we have unconscionability if someone has been kind of forced into something that they shouldn't have. But we don't, within contract doctrines, seem to have great ways of dealing with coercion. That happens around breach. Right? And so when you're coerced into breaching the contract, it's easy for that to get framed as well. You chose to breach the contract. And so then can't claim any of these rights as though the other party had breached and there's torture interference in a contract. But that's about a third party tortuously interfering into the contract, not a party to the contract tortuously interfering into their own contract. And so it creates this gap where there's a harm that's happening, where it's quiet firing or these people being coerced. You know, the other thing I don't really talk about in the paper is that sometimes all a landlord had to do was say, you can't shop at the store anymore, you're not getting any rations, and that's it like you have to move because you can't feed yourself. And that is not understood as a breach of contract. In that case, however and so you end up with these gaps where the harm can't quite be captured in the legal categories that exist.
[38:57] Kim Krawiec: Next, I had Ryan and Meghana, who both have questions on landlord tenant. My plan, Brittany, if it works for you, is to have them each ask their question and then have you respond to the two of them together so that you're not perhaps repeating yourself. I think they're slightly they're asking slightly different things, but it might just be more efficient to do it that way. So let me start with Ryan and then Megan.
[39:20] Ryan Fitzgerald: Hi, Brittany. So I think part of the discussion here, and as you mentioned in the article, one of the issues for Sharecroppers was a lack of adequate resources, especially when compared with their wellresourced landlords. And so it kind of made me think of today's landlord tenant disputes where well resourced landlords often are banking on the fact that poor tenants don't have the resources to sue them if they violate landlord tenant laws. And so I was just interested to hear your perspective on how private law can assist those individuals today who face those issues and how, if at all, conditions have improved for poor tenants in facing their landlords.
[39:57] Meghana Puchalapalli: And then along those same lines, there's a paragraph in page 56 where you describe the croppers, the discrepancy between the croppers and the tenants, where the croppers get to rely on overly legalistic rules and they get to drag out appeals for years. And it reminded me a lot about it reminded me a lot of typical landlord tenant disputes, except for now, we have a lot of poor people being evicted from their apartments and without having access to the courts to help them out. So I was wondering what other aspects of property law you think are based in and still linger from post slavery racist laws from the south?
[40:46] Brittany Farr: I think that one of the questions I would get presenting this paper is, what can this tell us about today? And it's not that we can draw a straight line from the way that landlord tenant law is happening in this time. And that's why landlord tenant doctrine is like this now. But the power dynamics at play and the trends that are happening, I think, point to areas where we should be paying attention. And, you know, some people are paying attention in contemporary law. And one of these is exactly what you're describing when there are these vast resource discrepancies so that even if a cause of action is available or courts could be available, people aren't going to be able to get into the court because they don't have the time and the resources to do it. And that the kind of, like, practical difficulty of getting into the courts is going to make these contracting situations, like, incredibly coercive and unequal. And that is absolutely in landlord tenant law, where you have landlords who are just a lot more powerful and legally sophisticated in ways or have access to lawyers who are legally sophisticated than tenants. This is me more spitballing than being willing to totally defend this suggestion later. But I do wonder if there's a way in which, like, access to some kind of remediation outside of the courts would be better than taking it to courts just because of the time involved in courts and the formality required in certain courtrooms. And this is growing out of just looking at what the Freedman's Bureau was doing in the few years that the Freedman's Bureau existed. Most of what they did was adjudicate these kinds of disputes between employers and employees. And so freed people regularly brought them, certainly more regularly brought these kinds of claims before the Freedman's Bureau than they would have to state courts. And the reason that Freeman's Bureau courts were created was because black people couldn't get justice in state courts, they couldn't testify in state courts. And so the Freeman Bureaucrated. Freeman Bureau courts. And so it's an administrative agency that was doing adjudications that even though Freedman's Bureau agents were not always totally interested. Aligned with Fried people was still a better venue than state courts. With respect to the ways that contemporary property law is and continuously informed by the history of slavery and conquest. It's not my area of research, but there are people who are doing really incredible stuff in that area. One of them is Queso Park at Georgetown. And particularly with respect to mortgages, and I think a lot of the stuff that happened around the financial crisis with mortgages, you also have kind of dynamics where you have these complicated contracts that are taking advantage of people. The other thing that might be interesting for folks to look at so there's a project being run out of the University of Toronto Law School called the Tort Law and Social Equality Project, and this is directly from their website. Our aim is to foster an awareness of the many inadvertent ways in which legal rules within Tort law reinforce and perpetuate systemic social inequalities contributing to the marginalization of groups such as and they sort of go through all the different groups, and so there they're trying to do something where they look at how these different doctrinal rules, like compound systemic injustices.
[44:29] Kim Krawiec: Okay, we have a question from McKenna.
[44:31] Makenna Cherry: Hi, there. Thank you so much for speaking with us today. My question is maybe a little bit different about a modern example, but I just thought, reading your article, I really liked your point about the idea of protecting private property and how that justified so much of the violence and legal protection of said violence against sharecroppers, and especially black sharecroppers. Do you think this justification really has been dissipated, given the strength of this anglovalue of protecting the home property as it has in other major legal conflicts like gun control or the shootings of unarmed black men who are accused of stealing, such as Trayvon Martin? It just seems especially your aspect of, like, reputation combined with private property may have a lot to do with this. Yeah, absolutely. I mean, I think the rights that we have when it comes to protecting our property, but particularly property that we designate as our home, have perhaps, like, outsize influence compared to other rights. And so there's a case in Virginia that happens during this time period where a sharecropper comes to get the crops at night, and he's armed, and he's trying to take the crops from near the home, and the landlord kills him. And actually, the trial interestingly, the trial court, which had a jury likely of all white people, convicts the landlord of manslaughter. And it's the Virginia State Supreme Court that overturns that. But in the language around overturning it, you see some of this gendered language of relying on, like, gender. His wife and daughters were home, and, you know, we have to protect not just home, but also the women who are inside of the home. So there's all of that. The thing that I think continues to exist is, like, who gets to protect their private property and who gets to protect their home. With Sharehoripping and tenancy, the laws were explicitly designed so that it was only the planters who could protect their homes. Right? That's what sharecropping did, is it took home property rights away from Sharecroppers today. We don't have that stark of a difference. But, you know, I think you see it in some of the standard ground cases in Florida that got a lot of attention a few 510 years ago where women dealing with domestic violence were not able to invoke danger ground laws in the same way that other folks were. And so the laws are being kind of differentially applied.
[47:20] Kim Krawiec: Jenn had asked a question, and she just texted me and said that she thought it was that you had already answered it, but I'm going to bring you back to it anyway, actually, because her question was whether sheer cropper relationships exist today. And I would have thought that your answer would be no, but you said yes earlier. Can you expand on that a little bit?
[47:40] Brittany Farr: I can expand, but only a little bit. And so the tiny amount of legal scholarship that exists about sharecropping, one of those articles is about sharecropping today. It's dated. It's from the think so the scholarship is dated. It's from the it's about the strawberry industry, specifically in California. And from what I can tell, there's conflicting sources. Some say that there used to be sharecropping in the strawberry industry, and it ended in the there's some articles that describe what's happening. There's an Atlantic article from 1995 that talks about sharecropping in California. So I'm not exactly sure. I think it's probably not technically sharecropping.
[48:24] Kim Krawiec: But.
[48:27] Brittany Farr: I think the way they got around the sharecropping laws is they gave the farm workers a little bit more control over the thing. It's a similar dynamic to, like, the gig economy, right? It's like it's Uber, where the Uber drivers are not employees. They're independent contractors. They're running their own business. It's sort of something along those lines.
[48:49] Kim Krawiec: Okay, thank you. And then our final question is from Bridget.
Bridget Boyd: So your paper discusses the violent measures whites took during the Jim Crow era when they felt the slightest threat to the racial hierarchy and how the private law protected them, which in turn helped maintain a racial hierarchy by making it difficult for blacks to enforce their rights. And today, conditions have improved, but there are many issues still surrounding inequality and minorities. And you just spoke about the strawberry industry. I'm wondering if there are any current private laws that you think help maintain this hierarchy. I know you focus on historical laws, and you're not an expert in certain related fields, but we were just curious about your thoughts or, like, maybe if you want to tie it into other research you're doing. We're just kind of curious to hear your answer to the open ended question.
[49:41] Brittany Farr: Yeah, you've preempted all my caveats. You know, thinking about it in the contemporary context, I think I've been trying to think about places where the lack of punitive damages would create a problem as well as places where you might still be seeing violent breaches of contract. And I've done a little bit of research into the bail industry, so generally it's women who are putting up the money for bail and it's kind of women who are bearing the cost of mass incarceration because they are the ones who kind of support their families and often people are putting up their houses things of enormous value. The entire extent of the family wealth is going toward these bail bonds. And the state has kind of like, outsourced the recapture of people to private bail bondsmen. And technically they are not supposed to use violence when they recapture people, but in reality they absolutely do. I mean, not that I've watched a Dog the Bounty Hunter, but that's kind of what people expect of a bailbonsman. And so I have wondered to what extent there could be a private cause of action there around the bail bondsman breaching the contract that exists between them and the person who has put up the money for the house. I imagine that there's probably something around the fact that by not showing up to court, there's already some kind of breach of contract. But that's an area where it seems like there's definitely a violent breach of contract happening and it's not clear to what extent there could be a cause of action. And it's the kind of place where a second best private law remedy could make a huge difference. Even though this is a problem that needs to be solved within the criminal justice system, getting someone's house back is going to make a really big difference in their lives. So that's one area, and then the other is in the area of employment law, but particularly labor contracts that don't fall under the protections of labor law. And there's a lot of those in the entertainment industry. So I lived in La. During my PhD. So I lived in La for a long time and constantly have a lot of friends in the entertainment industry and know a lot of stories that are awful.
[52:03] Kim Krawiec: I lived in La and made no friends in the entertainment industry.
[52:07] Brittany Farr: I don't know.
[52:07] Kim Krawiec: I came out of La no cooler than I am.
[52:09] Brittany Farr: A producer credit and a headshot just from like, in the water. They're like, here you go, you've been here long enough.
[52:16] Kim Krawiec: It's a testament to the fact that you're cooler and more interesting than I am.
[52:20] Brittany Farr: But no, certainly not. But there's like, violence that happens on set all the time. There's a lot of sexual assault that happens on sets that is just nothing is being done about it. And I think people get stuck in these contracts and particularly with like, film contracts because it's one of the places where, like, a sharehopping contract it's one of the kind of few employment places where, like, a sharecropping contract, there's, like, a time duration built in. You are supposed to be on set for the entirety of the shoot, and if you're the set designer and the star of the film, sexually assaults you, like, what happens? What's your remedy? And what's your cause of action? And so that's another place where I think that we don't have to look that far to find places where, like, really similar dynamics are happening. Because I think part of why what happened in the paper, like what I'm talking about in the paper happened is because there was a category of violence that the law just couldn't deal with. And it's these violent breaches of contract that just, like, there wasn't a legal category to make sense of them. And so I think any time that there's a category of violence that is kind of illegible in the law or we know that the law is not dealing with, you're going to see places where the violence and contract breach are all intertwined. And we already know that the law is not dealing with sexual assault in a satisfying way. And so I think there are probably a lot of breaches of contract that occur via sexual assault that people are not getting the kind of request that maybe we would want them to get.
[54:05] Kim Krawiec: Do any of you guys have anything else you want to ask Brittany before we let her go? And Marley in particular. You're our cohost. Do you want to have anything in closing?
[54:13] Marley Peters: Just thank you, Brittany, for spending your time with us. Thank you to my fellow classmates for all your good questions.
[54:19] Brittany Farr: Thank you all. This was a lot of fun. Thank you for these great questions and letting me have all my caveats and stand on my little soapbox. I really appreciate it.
[54:29] Kim Krawiec: Thank you so much for doing this. I couldn't wait for them to meet you. I told them, like, 20 times. I'm like, you're going to love her so much.
[54:36] Brittany Farr: Thank you, Kim. This was really fun.
[54:38] Kim Krawiec: It was a lot of fun.
[54:40] Brittany Farr: Thank you so much. It was great to see great to see you. Bye.