In this episode, UVA Law 3L Marley Peters and I interview Brittany Farr, Assistant Professor of Law at NYU School of Law. 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.
We’re discussing her article, Breach By Violence, forthcoming in the UCLA Law Review, which analyzes the use of private law by sharecroppers and tenant farmers in the Jim Crow South to address violent breaches of contract by landlords.
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] SJ Farrar: Share crop, okay?
[00:02] That's what 99% of us blacks in that area farm, but we were share farmers. You could have for what was left, not half what was made, you get half.
[00:20] Interviewer: You were also a sharecropper?
[00:22] SJ Farrar: Yes, ma'am.
[00:22] Interviewer: In the beginning, how did that work? Were you given your own plot of land to raise everything that you could on that land and then you split?
[00:32] SJ Farrar: You wasn't given the land, you were allowed to work the land, okay. And removed from farm to farm? I had to be tough mouth, I guess, as they said. Now I'm one of those that broke out one year. We had nice crop. When I say crop, tobacco turned up to be nice and they tried to take it away from me, I would have been dead. They would have been executing me or something. But then those days, if she would have let me do what I want to do so after that, I broke out of it and I couldn't take it. I said, I'm not going to work. My wife and we had three children at that time, work them to death and then give somebody I said I had to leave the farm because I was considered the troublemaker.
[01:26] Leonia Farrar: When we sold the last crop of tobacco and they carried it to the market for sale and the farm that we stayed on, the landlord, he wanted all of the money and he determined he wasn't going to let him take all of the money. And so they went and got a lawyer and they went to court and the lawyer found the judge justice peace. They found that he was right, he deserved his share of money, and they made this man pay the cost of the court and gave him his money, what he supposed to have had. And the judge told him that, if I were you that I removed from.
[02:17] Brittany Farr: Sometimes people would ask, why did anyone bring a case when there was so the chances were so slim and there was so much violence and there's a good chance that you would just get killed. And I think it's a hard thing to explain, but I think when you listen to that particular person talk about it, you can kind of understand it a little bit more.
[02:37] 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 Kravick. That was Samuel James or SJ and Leonia Ferra. Interviewed by Peggy Van Scoj as part of the Southern Oral History Program collection at the University of North Carolina. My guest for today, Brittany Farr, my Cohost, Marley Peters, and I all wanted you to hear this story and a sharecropper's own words. I've placed a link to the full audio recording and transcript in the show notes. If you'd like to listen to the entire interview with the farers, my guest today is Brittany Farr, assistant professor of Law at NYU School of Law. 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 19th and early 20th centuries and interrogates the ways in which contract lawmediated African Americans relationship to bodily autonomy, economic freedom and legal agency both during and after slavery. We're discussing her article, Breached by Violence, forthcoming in the UCLA Law Review, which analyzes the use of private law by sharecroppers and share tenants of the Jim Crow self to address violent breaches of contract by landlords. So I'm here this morning talking with my co host for today's episode, Marley Peters. Marley, why don't you introduce yourself and say hello to our listeners?
[04:32] Marley Peters: Hi, listeners. Thanks for tuning in to Taboo trades. My name is Marley Peters. I'm a third year at UVA Law, and I'm really excited for this conversation.
[04:41] Kim Krawiec: I am really excited for this conversation, too. I'm so excited for you guys to meet Brittany because this is an amazing paper and she's an amazing scholar. So I think you guys are really going to enjoy this. So, Marley, you specifically requested to be the host of this episode. What was it about the topic or the paper or the author that drew you to this and made you interested in being the cohost for this one?
[05:05] Marley Peters: Well, as a black woman who has family and my ancestors are from rural Virginia, I was interested in this topic just based off of maybe my own familial connections of the idea of being a descendant of people who are enslaved and also people who were sharecroppers. And actually, this weekend I'm going to my family reunion in Blackstone, Virginia, and that is formerly a farm. And so I'm interested in going and learning about my own history related to the subject. So when I saw that there was something about share cropper litigation and I looked up Brittany, I got really excited, and I wanted to be the co host for this episode.
[05:47] Kim Krawiec: And this is, as I said, a really interesting paper. It's sharecropping is a history that in some ways we're all familiar with, but for me at least, don't know enough about, and certainly didn't have this insight into the private litigation, the contract and property litigation that went on. So what do you hope to learn from Brittany during our time with her today then?
[06:11] Marley Peters: Well, something that stuck out to me is that I'm interested in learning the difference between share tenants and share croppers.
[06:18] Kim Krawiec: Me, too. I didn't even know there was a difference until I read her paper last year, and I was like, oh, I never knew that.
[06:25] Marley Peters: Exactly. I didn't know as well. And it seemed to have some legal importance when deciding these cases. So I'm interested in learning more about that. And then also, I noticed that there was a gender dynamic at play regarding who were considered sharecroppers. And I believe we have a case that involves one woman, and so I'm interested in learning more about that. And just in general, Brittany's method. I work on the Larview journal here, and so just reading this article was so fascinating. And I think she's a great writer, so I'm really interested in just also learning about her research strategies.
[07:03] Kim Krawiec: Yeah. For me, one of the things about this paper, in addition to just being an interesting legal analysis and an interesting history, is the way she made these facts kind of come alive. Right. I just sort of really felt like I could identify with these stories with the way that she told them. And I'm interested in some of the same things you are. I think the rest of the classes as well. The story of I think her name was Babe Tony, the female sharecropper. And I was interested in that as well. Just because I don't think of sharecroppers as being female. I realized kind of in hindsight, that's probably silly. Of course there were female sharecroppers, but it's not the vision I had in my head. Right. And so, like you, I'm interested in the gender dynamics there and how they intersected with the race and class dynamics. And also whether Britney knows we'll find out whether she knows how women like Babe or Babe specifically became a sharecropper, whether initially there was perhaps a husband who's now deceased, who was a party to the contract and she stepped into that contract, or did she show up and negotiate on her own, which seems doubly difficult in this environment. Right. So I'm really interested in that. And like you, I was interested in her methods, how she landed upon the subject, and how she found a lot of her sources. And it sounds like it was difficult, especially during a pandemic, to get access to some of these sources. So I'm interested in that as well. Anything else that you're hoping to get from her?
[08:35] Marley Peters: Well, I just wanted to also highlight that at the end of the article, she has a wonderful chart which breaks down all the 24 cases that she involves and brings up in her article. I think that is just a wonderful resource to refer to as people go on and maybe read the article, to scroll down all the way to the end and have that visual. Also, as you were saying, about the stories that she has, she really does bring it to life, and I think that it's hard to do with so many cases to add that narrative aspect. So kudos to you, Brittany.
[09:08] Kim Krawiec: Okay. I'm very much looking forward to our discussion with her, then.
[09:12] Marley Peters: Me too.
[09:13] Kim Krawiec: Great to see you again.
[09:14] Brittany Farr: Good to see you, too. How are you?
[09:16] Kim Krawiec: Brittany, First of all, let me introduce marley.
[09:19] Marley Peters: Hi, Brittany.
[09:21] Kim Krawiec: As I said, Marley helped organize the questions and try to come up with a theme. Can you get us started, Marley?
[09:27] Marley Peters: Yes. Thank you, professor. Hi, Brittany. We're so glad that you're here. Thank you for sharing your article with us and spending this time with us today. It was so good, so well written, and I really enjoyed learning about these various cases. And one thing that stuck out to I think everyone was just the idea that the difference of share cropping and share tenancy. And I don't know about other people, but I didn't even know there was such a thing as a shared tenant. I had heard and learned about share croppers before, but it seemed like in your article, that difference seemed to have some legal meaning. It seemed also like judges themselves got confused on finding the differences between them. But we were hoping, if you could clarify the difference and just explain to the listeners what the difference is and what did that bear regarding the legality of these cases.
[10:18] Brittany Farr: Absolutely. Thanks. And thanks for having me. It's fun to get to talk about it again.
[10:24] Kim Krawiec: So good to see you again, Brittany.
[10:26] Brittany Farr: Yeah.
[10:27] Kim Krawiec: I'm going to find constant excuses to see you.
[10:30] Brittany Farr: I hope so. Yeah. I didn't know either that there was a difference between sharecropping and shared tenancy. And I had read some historical works on sharecropping that if they do talk about the difference, don't necessarily emphasize the difference. And what I suspect is actually that that distinction maybe is not picked up on by historians who aren't reading the legal documents, because functionally, there's not a difference in terms of the day to day activities of sharecroppers and share tenants. And so as I was beginning the research and discovering that there's something called share tenancy and it's different from sharecropping, and it seems to matter, and I'm reading through the cases and trying to pull out the sharecropping cases and figure out which ones are share tenancy, and I couldn't figure it out. And there were a couple that I just don't know, why can't I figure this out? Like, how much more research do I have to do to be able to understand this? And then at some point, thankfully, I realized, oh, the fact that I can't tell this apart is important. And that's actually maybe what I should be writing about is that it's actually really difficult to understand the distinction between the two, and that's some of the dynamic that's going on. So the difference is sharecropping the sharecroppers were considered employees, and as employees, they were entitled to the proceeds from their share of the crop. So it meant that they didn't actually own the crops that they were growing. I think colloquially, when we talk about sharecropping, we kind of think the sharecroppers grow the crops and then they give half of them to the landlord, when in fact, if you are legally a sharecropper, the landlord owns everything, and then after the landlord sells the crops, they give you half of the profits. And this distinction really comes about after the end of the Civil War, and it's a way to better control black laborers because it gives landlords more property rights. So share tenancy, on the flip side, remains a property relationship, so it's still a landlord tenant relationship. And that is actually, I think, what most people are thinking of when they think of how sharecropping might work. So the tenant does own the crops and pays the landlord rent in the crops themselves. They share a lot of things in common. The two both share croppers and share. Tenants live on the land. They're either paying or being paid in a portion of the profits. So the amount of money that they take home really depends on crop prices. There's sort of a higher rung in the agricultural ladder where people are paying in cash, and so then it doesn't matter as much if cotton is selling really high. The two biggest differences between share cropping a tendency, though, is, one not owning the crops. If you keep the cotton and you're a sharecropper, you have stolen the cotton, right? So now your landlord can go after you for theft. It also means you can't sue your landlord for theft because they are keeping what they already own. At best, you can sort of bring a lien action. It's just not as strong as the legal action is theft. So that's the one. The second is, if you're an employee, living on the land is just a condition of the employment, so you don't have any rights to where you live. And that means as soon as your landlord fires you, you have to leave. They don't have to have a reason to fire you. You can try and bring a breach of contract action after the fact, but you don't have any right to be where you are if you're a sharecropper. It also means that the landlord can go wherever he wants and can go into your house and can do all these things and it's not trespassing. And so in that way, the shifting of the property rights both with the crops and where you live to the landlord, really disadvantaged the shareholders'it's.
[14:16] Kim Krawiec: Interesting. Brittany and as somebody who works in private law. One of the things that interests me about your paper is that I'm left not knowing whether to think of this as a success story for private law. Because at least the plaintiffs here succeeded when laws that were specifically designed to prevent injustices of this sort appear to have failed. Or whether I think of it as a failure story. For all of the reasons that you discuss in the paper the shortcomings of private law, I don't know whether to consider them shortcomings. The features of private law just failed to fully compensate croppers and tenants for the losses they suffered at the hands of these violent landlords? Or is it a little bit of both? What do you think at the end of the day?
[15:01] Brittany Farr: Yeah, it's certainly the sort of unsatisfying historian's answer of it's both. I think actually a lot of it is about the expectations you come in to the paper with. And so when I started this research, I thought I was going to be writing a paper about the kind of abject failure of contract law after the Civil War. And after the war ends, contract is held up as this symbol of freedom. And so I thought the paper I would write is, this is complete hypocrisy and black Americans contract rights were not enforced based on history that I have read. And so when I found cases where sharecroppers were winning, I was really surprised and just did not expect that to be the case. And so because of the prior I had going in, I came away feeling a little more optimistic than I did when I started. Some people who have a lot more faith in the law than I think I did starting out read this and are kind of appalled, like, oh my gosh, this is terrible. I was like, oh, really? I thought it was kind of hopeful. So some of that is just kind of what you're bringing to the table. But absolutely it's both. And one of the questions that I have grappled with is there's a way in which even when sharecroppers and tenants are winning, by winning, it's reinforcing the system because it's sort of showing some justice can be found in this system. And so wanting to acknowledge that while still taking seriously that for the people who won, this would have been life changing and that this would have been really important and kind of being able to hold those things in tension.
[16:33] Kim Krawiec: Yeah, it's interesting. Another question I had was to the extent that it's at least in part a failure story, which I agree with you in part, it is clearly these plaintiffs aren't being fully compensated for their losses in any way. And I wondered whether those failures are inherent in private law. And I'm going to put failures in quotes now because I think that private law has these rules for a reason, right? But so, for example, the lack of punitive damages and contract is one that you mentioned a couple of times, or are they failures to these specific plaintiffs due to racism or classes all the isms that are present here? Sometimes I couldn't help but think that the courts were adopting what looks like a fairly narrow view of the harm that croppers and tenants suffered in the event of breach. They didn't merely lose their crops, but their homes, their community, their entire livelihood, and they lost it on short notice. And there is only so much that contract law, for example, can do about that. But some of that seems foreseeable. And although it still doesn't directly compensate for the violence that was suffered? I don't know. Could they have done better consistent with the rules of contract law, do you think, or no? Is this just what it is?
[17:45] Brittany Farr: I think there are some ways the courts could have adhered to contract law and done better. One of them is about foreseeability, and even in a really narrow way, around the foreseeability of loss when crops are taken. And so some courts would say, well, we don't know how many crops could have grown, and we don't know how much it would have sold for, and so the loss wasn't foreseeable. And that's actually not really the rule for foreseeability. You can look at past years and that kind of thing. And so I think in those cases, that's one way that they could have expanded. And there's actually one of the few contemporaneous law review articles about what was going on in the south talks about this and goes through the court cases and says that these judges are reading it wrong and the foreseeability rule should not limit damages in that way.
[18:33] Kim Krawiec: Oh, that's fascinating. Yeah, I didn't know that.
[18:35] Brittany Farr: Okay. It's a student note in Harvard Law Review and yeah, I know. So I don't know who wrote it because they don't put on it.
[18:41] Kim Krawiec: Because they don't put it oh, my gosh.
[18:43] Brittany Farr: So it remains anonymous.
[18:46] Marley Peters: Yeah.
[18:46] Brittany Farr: And it's kind of the only one that kind of engages with some of the contract stuff that's happening in the south, even though there was so much contract litigation happening at the time. So that's one, I think that the lack of punitive damages and contract law, which isn't just a feature of contract law, I think that that's something that I would consider a failure for particular kinds of contracts because the standards of proof are different for bringing a tort claim versus bringing a breach of contracts that is egregious claim. So the kind of, like tort adjacent breach of contract claim. And so I think sometimes, even if it may be, does not rise to the level of a tort, punitive damages might be appropriate in contract. And something that I've just started to think about is the justifications for why breach of there shouldn't be punitive damages in breach is that, well, you can go to tort law, and so there's just a hesitancy to have any kind of redundancy within the law. Right? Well, we have tort law, so we don't need it in contract law, as though the redundancy itself would be a problem. And that's something that I'm really curious about, why that idea exists and continues to persist. Where is it coming from? Why is redundancy bad? I think it's better because then when certain avenues are closed off, you still have other avenues available.
[20:09] Kim Krawiec: Interesting. So this might be a later project for you.
[20:12] Brittany Farr: Yes.
[20:13] Kim Krawiec: Hey, exciting. Okay. We have a variety of questions about the research strategy and methods and sort of how you came upon this topic and what it was like to work on this during a pandemic and all sorts of things. So I'm going to start with Mary.
[20:28] Mary Talkington: Hi, Brittany, thank you so much for joining us. So, yeah, someone who is very interested in criminal law myself and who hopes to pursue a career as a prosecutor. I feel like I've read so many articles regarding the gaps and defects of the criminal justice system in the post slavery south up to the present. So your article focusing on the private law and, like, all the gaps there, that struck me as very unique. So I was just curious what inspired you to focus on private common law rights and their inability to recognize violence against or provide a full remedy to minority sharecroppers and share tenants in the post slavery south. I know you said that as you conduct your research, that's sort of what you found shaped how your final paper turned out. But initially going into it, did you just recognize the gap in the literature you wanted to fill or what inspired you to first start the project?
[21:18] Brittany Farr: Yeah, so I wish I could take complete credit, but I don't know if that's ever the case for our ideas. And a mentor of mine knew I was writing about slavery and contract law and said, you know, there's something going on with sharecropping contracts, and no one has been writing about it, at least not from the legal perspective. They were one of the most common employment labor contracts that were happening in the time period, and there's just not legal scholarship on it. I was like, yeah, I don't know, maybe. And so convinced me to start looking. And really a lot of my early stage research starts on West Law just to see what I can find, kind of proof of concept. And so I started looking for judicial opinions that mentioned the word contract that were about sharecropping. And so it was in collecting those opinions that I started to see ones where people were winning. And then that's kind of been where the trail started. But it's it definitely started with just trying to understand what were these contracts, were they written? What were the terms? Like, very basic questions about the contract nature of them? Because when you do look at the literature that's on sharecropping, you have stuff that's in history and African American history, there's kind of deep economic literature about whether or not sharecropping is efficient, and then there's some legal scholarship from the about what were sharecropping relationships. And that's pretty much it. It became apparent pretty quickly that there was a pretty big gap in the legal literature. But I have been sort of identified as a private law person from the get go at least once I got to law school, in part because contracts was the class that I felt like I understood the most. Like, well, I've got to write about something and contracts make sense to me. That's really the reason I was like, I'm going to look at contracts. And it actually wasn't until having people outside of my field read it that they were like, you have to talk about what's going on in criminal law. Why weren't these criminal cases? And so it's part of the reason that it's really good to continue to have interdisciplinary conversations, because I was not even framing it as all of these other things that should have taken care of it failed, and then private law stepped in.
[23:42] Brian Blaylock: Brian hey, Britney lost a really great article despite the grotesqueness of the actions of planners and the lack of redress available to the victims. And just from a reader standpoint. When I see an article this well written. And not just from a law student perspective. But I think just in general. That most readers. Like my sister or my nephew. Could read this and get a valuable understanding of what you're trying to say is the research that is involved in that and how you went about getting like you said. I think it was in the appendix where you talked specifically about travel restrictions related to Kobe 19 limiting access to state archives for those extant files. How did you go about getting access to the twelve cases that you were.
[24:26] Brittany Farr: Able to get to?
[24:27] Brian Blaylock: What was that process like?
[24:28] Brittany Farr: Just cold emailing archivists for the most part. So it really depends state by state. Some states are really well organized and have an online system where you can actually just request files and it's a little bit more automated. Other places it was finding the help email and emailing them. There was one state where I asked the state archives and they said, well, it's not a state supreme court case, so we don't have it. That would be with the county. And so I called the county and this woman was like, yeah, I think we have it in the basement. I'll check and I have the voicemail from her still. She's like, oh yeah, I'm calling you back. I found it in the basement, I'll send you a copy of it.
[25:13] Kim Krawiec: That's amazing. I mean, it's amazing first of all, that she had this recollection that it might be in the basement and found it. Yes.
[25:20] Brittany Farr: And that she was just totally willing to help. Other places were a little less willing. Some places. Well, we're closed, we'll see you in a year when we open back up. But he's Lance Hill in Kentucky, he was just sending me so many scans of things and went above and beyond finding documents. I couldn't have done it without archivists who are really willing to help, waiving fees, that kind of thing. But it really is kind of scatter shot and depends so much on state law, like so many of the things that happen. So in doing my searches, I actually couldn't find any appellate cases in Mississippi, and I don't know why that is, but the Mississippi archives are actually relatively difficult to interact with. Definitely from afar. You have to mail a letter along with a check asking them to look for the records. You get no confirmation that this has been received, but the check gets deposited. They mail it a letter back to you saying, here are the records, and here's how much it would cost for us to take pictures of them. It was hundreds and hundreds of dollars. And then at that point, I kind of gave up. It's too hard. And so part of my question then is the fact that there aren't any appellate level records a function of the archives more so than a function of what's going on in Mississippi at the time? So, yeah, really range, depending on how organized the state was.
[26:48] Kim Krawiec: Fascinating. I'm glad I do historical research with, like, a 20 year window.
[27:00] Brittany Farr: Some of my earlier projects on slavery, I went to the archives and got these appellate these antebellum records and looked at them, and it just hadn't occurred to me that they would be handwritten. Yeah. Oh, no, I can't read this because the handwriting was so rushed, but these were mostly typed.
[27:19] Kim Krawiec: Writer had a question along these lines as well.
[27:22] Reidar Composano: Yeah, so thank you. My question is similar to Brian, and you mentioned in your article in a couple of cases where files rather missing or incomplete. And I'm just curious if you think that's the exception or the rule, and if you think there's more of this litigation out there. You talk about the Mississippi archives and kind of left that open, that there may be some cases there that you're just not able to get access to, and then just a follow up, do you think that had any impact on your research? And does frequency even matter as far as informing the topics in your article?
[27:55] Brittany Farr: Great question. Sorry, I'm just going to start writing some of these things down so that I don't forget the ends of the questions. So frequency was something that I was concerned about. I think certainly historians generally are one of the questions that we often get is, is this enough evidence to prove a general trend? And so for a historian, finding 24 cases, there's a lot of cases, for an economist, not so much. They would look at my 24 cases and then they would divide it up in ways so that several economists asked me the same question, which was, it seems like you really only have five cases over a span of 50 years. Is that enough to tell us anything? How are you getting to five? Why did you discount all of them?
[28:42] Kim Krawiec: How did they get to five?
[28:44] Brittany Farr: Was there I look at both black and white plaintiffs, which was a whole and I can talk about why I decided to do that. I look at both black and white plaintiffs, and so they. Exclude all the white plaintiffs. And then of the ten or so black plaintiffs, only five were ultimately successful on the final appeal. And so this is only five successful cases. That doesn't seem like very many. Does this tell us anything? Which is a fair question. Each of these cases, though, represents years and years of someone's life spent on this litigation. And so I think the average amount of time from filing to final judgment was three or four years across my cases. And that's a long time for a poor sharecropper, black or white, to spend on litigation. And I think and someone who's been dislocated as well, right, exactly, who doesn't have money. And so I think the only way these things could have happened if there was some amount of support beyond that one particular individual and family, I can't say where that support was coming from within the community, but there's just no way that one sharecropper could have sustained it over that many years. And so I think the fact that these cases even made it to state supreme courts is really meaningful. So that's one part of it. The other is in listening to and reading different oral histories and even in some of the trial transcripts, I found quite a few references to cases that sharecroppers brought against landlords that I was then unable to find in the appellate records or even in trial court records with the state archives. I asked them to look for some cases and they couldn't turn them up. And so that suggests that there was a much wider range of these things happening that isn't going to get captured by the archives that we have left. One of the reasons is that things that were for a small amount of money would have been heard by justices of the piece and those records are kept in a different place. They're not as regimented. They might have just said the party's names and the amount of debt and not what the action was actually for. And I have seen some references to a justice of the peace and so if it's there, that's going to be much harder to find and certainly much harder to find in a systematic way. And then the other is that if they did go to trial, I suspect that many of them lost. And then trial court records, whether it's the exception of the rule that they are missing, I think that it feels more likely that I'm not going to find something. My expectation is that I'm not going to find the smoking gun that I'm looking for when I go. And that's, I think true of a lot of archival research. You have these grand visions of like, I'm going to find all of these things and then you look and it's piecemeal and especially the further back you go in history, the harder it gets to find, actually. So it's partly also my period. I I start before the Great Depression. And during the Great Depression, part of what the Works Progress Administration did was send people out and start typing up written court cases. And so some of that exists, but it doesn't go quite as far back. So it means that I have better documents for things that are a little bit later and not for the things that are earlier, where there's just not I don't know that people even sensed that these things would be important. I was just doing some research at an archive, and the historian who was there said she was doing work in the black marriage, like slave marriages, so marriages that after slavery ended, formerly enslaved people then kind of have ratified. And she went to a state courthouse and asked if they had the records, and they said, we might. Let me show you where they would be. And he leads her back to this shack, essentially, that's just full of papers that have kind of been dumped trucked into a pile. Oh, wow, they might be in there. More things are getting digitized, actually, thanks to Copid. But the further back you go, I think the rule may be, is that you're not going to find trial transcripts amazing.
[33:04] Kim Krawiec: Your reference to the fact that there were both black sharecroppers'and, white sharecroppers, and your data actually leads in nicely, I think, to a question by Caroline. Yeah.
[33:15] Brittany Farr: Hi, Brittany. Thanks for being here. My question is related to that distinction. So because some of the appellate cases that were available were brought by sharecroppers and tenants that were not black, did you consider looking at any other resources, for example, other primary sources like newspapers or journals, to provide more insight into the racial tensions and legal disputes between sharecroppers and tenants and their landlord employers?
[33:40] Brittany Farr: Yes. Actually, I have a piece that's coming out in The Black Scholar soon on black archival practices that talks about some of this work. I listened to oral histories, and many oral histories that are out there you can find transcripts of. But I decided to listen in part, I was doing this research the summer of 2020 was george Floyd had just been murdered, their protests, and we're all in quarantine, and I'm sitting in my apartment in Philadelphia, which is kind of near Center City, so I can hear the helicopters, which I know means there are protests nearby. And I'm afraid to go out and protest because of Kofid. And I'm sitting there thinking, I have to write a paper so that I can get a job, and I cannot bring myself to do anything, certainly not this paper that's just about violence against black people. Like, well, I got to do something. And so I knew I wanted to listen to oral histories, and so that's what I did. And I kind of laid there and listened to them and took notes and realized it sounds obvious when I say it, but there's so much in the listening in the audio that gets lost if you are just reading it. And this is in the Black Scholar piece. But one of the things that I listened to was an interview with a woman who was a former Sharecropper. She was in her eighty s at the time of the interview and the interviewers, both white men asked her, we've heard stories that Sharecroppers were cheated. Is this true? And as soon as he says the word cheated, she starts laughing. And then there's a long silence and her response is, well, I don't know anything about that. And it was just like so interesting and telling to me in terms of listening. I think any listener is like, she definitely knows about these stories and she also is not going to tell these people.
[35:42] Kim Krawiec: I'm going to play the audio that Brittany is referring to. It's an oral history with joiner available from the Library of Congress. I've provided a link to the full interview in the show notes. The sound quality is poor, but I'm including it so that listeners can hear for themselves the interaction Brittany is referring to.
[35:59] Brittany Farr: We've heard stories about renters and chaircrafters being cheated.
[36:04] Brittany Farr: Did you ever have any experiences that way? Well, no, he would always be in a way and hit, and so I have to just pick what he said.
[36:21] Brittany Farr: The challenge that I had was how to use this evidence in ways that make sense in a law review article. And so some of the things I left out so, for example, that woman's laughter and silence did not make it to the law review version because writing about absence is difficult and I think it required a different kind of theoretical engagement that just didn't make sense for this particular paper. But I found that the oral histories were useful for supplementing things like not knowing how many trial records there were, or talking about the ways in which people were cheated, or talking about the reasons that people did or did not bring cases.
[37:01] Kim Krawiec: We had a follow up from Marley.
[37:02] Marley Peters: Yes. So I really was appreciative of your chart at the end of your article. And when I was looking over it, I noticed, okay, so it made sense to me thinking, okay, most of the defendants were white, and articles about violence enacted on people, black people a lot of the time who were the Share propers or shared tenants. But then one caught my eye where it was a black defendant, Sullivan v. Calhoun. And I think that case, I think that it just kind of goes to show that maybe this act of enacting violence upon black people was so normalized that it was happening between black people just for this one case, of course, out of the 24 that you listed. But I think that that speaks to the broader things that we see sometimes with colonialism or whenever things like this racialized slavery, where you are having a racial hierarchy that whenever there is a power imbalance and a black person get it, then the black person can also enact the violence upon the other. And so I was just wondering, had you seen other cases where there were black property owners who were enacting violence, or was it really like an outlier? Because I think that that was something that struck me when I was first looking at the chart.
[38:20] Brittany Farr: Yeah, absolutely. And I think a lot of us would assume that there would be kind of inherent racial solidarity, but it is complicated by these class differences that existed at the time. And so I didn't come across any other cases in my sample that had both a black plaintiff and a black defendant. But so Kimberly Welsh has written a book about black litigants in the Antebellum South, and some of those litigants were black people who owned slaves, owned enslaved people. And so I think there you see a similar dynamic. It was also common during slavery enslavers to hire black overseers to kind of mediate that violence. And I think that practice also continued after slavery, where some of the overseers on these plantations would be black. And so it's one of the ways in which the dynamics that I observe in this period you can find elsewhere, both geographically and throughout time. And I think it's also part of the reason why I decided to include white plaintiffs, because I think the way that we think about racial violence needs to be expansive enough to include violence that's happening against different kinds of racialized bodies as well as by different racialized sort of perpetrators of that violence. Because the racist system that enabled the violence to happen against that was designed to control the black labor force also is the same system that allowed all of this violence to happen against these white people. And Sullivan v. Calhoun is a really interesting case because when you read the opinion, there's no mention of race. And so you would, if you were me, assume that it was a white plaintiff and a white defendant or a black plaintiff, maybe in a white defendant. And it was only after looking at the census records that I saw that. And actually, now I'm remembering there's one other case that has two black plaintiffs and a black defendant in my set of cases, but it's also the only case where a plaintiff successfully wins punitive damages, right? I don't have enough evidence to say this is the reason why, but I really don't. I think that's a coincidence that a court would have felt comfortable awarding punitive damages against a black defendant as opposed to a white defendant. And also it matters that it's in South Carolina, which also awards punitive damages and contract cases compared to other states and caveat caveat. But I think that it's important that the case with a black defendant is also the one that has the most justice for the black plaintiff.
[41:09] Kim Krawiec: So we have a question from Caroline.
[41:11] Brittany Farr: So you say in your article that the 24 cases suggest that no one source of law was categorically superior to the other, there is no single best theory of litigation, and that the cases showed a very complex relationship among property contract and tort claims. My question is, prior to conducting your research, did you think that one category of private claims would lead to more success than others? And more broadly, I know you mentioned previously that going into the research, you thought private law would have failed black share proper. But were there any other general predictions or thoughts you had about what the appellate opinion would reveal before you started getting into them?
[41:47] Brittany Farr: Once I discovered that sometimes people's contract rates are being enforced, I tried to write a version of the paper that was sort of property law failed, and contracts was the thing that saved the day. And I wrote that paper, and in writing it, people like, it seems like property was kind of useful. So I revised it and then workshop that paper. And so it's like, what about tort law? I was like, okay, fine included tort law. So it was through the process of revision that and it felt like it cost me something to write that particular sentence that no one source of law was better because I really wanted one to be better than the other. Because I wanted something kind of simple and straightforward to point to and say. Now we can see how contract helps people. And instead was still. After all of the research. Left with this kind of mess of in some cases it's this and in some cases it's that. Which felt very unsatisfying. That really was the evidence kind of speaking for itself, in spite of my best efforts to mistread it. Yeah. Which is always interesting when your expectations are challenged when you're in the research.
[43:13] Kim Krawiec: If you've enjoyed this discussion with Brittany Farr, tune in next week for part two.