Uncovering the Legacy of Black Legal Culture during Jim Crow: A Conversation with Professor Myisha S. Eatmon

The interview below was conducted in Spring 2023. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): As a native of Chapel Hill, North Carolina, and a graduate of the University of Notre Dame, how did your upbringing and undergraduate education shape your academic interests and research focus in history, African American studies, and legal history?

Myisha S. Eatmon (ME): Good Afternoon, Kyle. Thank you so much for reaching out and inviting me to join you in a conversation with the Harvard Undergraduate Law Review. Your question is wonderful. I grew up in Chapel Hill, a very liberal part of North Carolina. Chapel Hill is also the home of the University of North Carolina at Chapel Hill, which means that my classes, growing up from K through 11 for me, were very diverse. I grew up with people from Latinx communities, Southwest and Southeast Asian communities, the continent of Africa, Jewish, Christian — you name it. I grew up in a community with a public education system that enabled me to at least dabble in hard history. We learned a little bit about the golden era of the Civil Rights Movement, we learned about slavery, though not the particulars or the depth of the depravity of enslavers, and in particular, we learned about the Holocaust. In sixth grade, our honors English class watched Schindler's List, and for me, that was a pivotal moment in my life as I watched people persecuted without any real reason. I remember the rallying cries “never forget,” “never again;” so I made it a goal of mine as a young person to not allow injustice to happen without doing anything about it. Therefore, it was through that conviction at an early age that I decided I wanted to go to law school, and then I would go to Capitol Hill and be a politician, and one day I would be the president.

So I put myself on that path. I went to the University of Notre Dame for my undergraduate education. They offered great financial aid, it was far enough away from home, and they had one of the best political science departments in the country. I knew right away that I would be a political science major, and eventually, my love of history forced me to declare history as a second major. I did the things I was supposed to do to prepare for law school; I studied “abroad” in D.C., where I worked for Massachusetts’ Senator John Kerry, and that experience taught me the ins and outs of Capitol Hill. From there, I returned to my undergraduate institution, where I had lined up an interview with a local attorney. I was preparing for the LSAT. And one day, I looked at myself and said, “Do I want to work 80 hours a week in a corporate space?” The answer to that question was no.

I also had a wonderful undergraduate advisor, an African American political scientist. He said, “Myisha, you know you can amplify your voice and reach by going into the academy as opposed to working one-on-one with clients as an attorney.” So I applied to graduate school and attended Northwestern to pursue a Ph.D. While I was there, my internal sense of justice and love for all things “legal” manifested in my dissertation project. So that's how my upbringing influenced who I am as a scholar.

HULR: Can you tell us more about your book project tentatively titled, “Litigating in Black and White: Black Legal Culture, White Violence, Jim Crow, and Their Legacies,” and what inspired you to research this topic?

ME: This book was inspired by all of the interests that I expressed in the answer to the previous question, but also by the grand jury's decision not to indict Darren Wilson for the murder of Michael Brown. I have a brother who was similar in stature to Mike Brown. So the killing of Michael Brown and the judicial inaction felt personal. One of the questions I asked was, how long have we, Black people, had to rely on civil courts as a means of recourse for white violence in this country?

Michelle Alexander's work, The New Jim Crow, was relatively new during this time, and I recognized that her argument focuses primarily on late 20th-century and early 21st-century mass incarceration. However, I thought that we could expand her analytical framework to incorporate other parts of the socio-legal, economic, and cultural regime of Jim Crow. So after reading Historian Barbara Welkes’ Recasting American Liberty, I realized she has a couple of paragraphs in one of her chapters where she looks at Black people suing for civil assault.

It was this moment for me, and I wanted more. So with all these things coming together, I dug deeper and found that Black Americans have been using civil law as a means of recourse for white violence for over a century. I then asked myself, is there a way that these litigation strategies remained the same over time, or have they morphed a little bit? And so I began to dive in. In the first chapter of my book, we look at litigation strategies that Black Americans are using in the face of violence — generally speaking, happening on trains. The book begins in the 1880s right as separate coach laws are becoming the law of the land, and it ends in the 1950s, potentially the 1960s. But my archive is pulling me forward in time.

The second chapter of the book looks at the impact that Jim Crow has had on tort law because what we don't think about in legal history is that tort law itself is coming of age at the same time that Jim Crow is crystallizing as a legal regime. And so if we restore historical context to the cases that make up tort doctrine, then it would be only logical that Jim Crow, racism, and prejudice played some role in the building of tort law. So in the second chapter, we look at the case of Joseph Jopes, a Black plaintiff who sues a railroad company for being shot by a white conductor. The case makes it all the way up to the United States Supreme Court. Although there was already a set precedent that would have allowed Jopes to recover, even with some of the conflicting evidence in the case, the courts narrowed the doctrine of Respondeat superior, making it harder to hold a company liable for the actions of its employees. But I also saw in this case that the conductor was making arguments of self-defense that reminded me very much of the arguments that we hear in present cases about the killing of unarmed black people in this country.

In the next chapter, we look at the interconnectedness of “African America” and the ways that black newspapers and railroads connect different black communities across the country. It’s through that connection, I argue, that these black attorneys who end up founding or editing black newspapers are able to democratize legal education. So at the end of the 19th century into the first two decades of the 20th century, we see that the absolute number of black attorneys increases while the proportion of black people making up the legal field decreases.

So some Black people who were able to get a legal education found black newspapers or edited them, and they offered legal advice for the cost of a paper. Let's be honest, not everybody bought their paper. They may have borrowed it from a neighbor, or it may have been read aloud to them in church. So I think this is a moment where we must think critically about the ways that media, in the case of Jim Crow, the Black newspapers, the Black press, and in the case of the 21st century, Twitter, Black Twitter, and how these discursive spaces create, transform and transmit what I call Black legal culture.

While thinking about legal networking and informal legal education, I shift gears in the next chapter and think critically about the NAACP and the role mutual aid societies play in connecting Black people to sympathetic attorneys, and sometimes offering legal advice on the fly. The prevailing narrative about the NAACP is that it had a very strict litigation agenda. The attorneys had figured out how they wanted to attack Jim Crow to bring it to its knees: if your case didn't quite fit the litigation strategy or the test cases, or if you as a person were not respectable enough to fit into those parameters, the NAACP would dismiss your case or request for help. But what I found while looking through the NAACP’s papers was that Black people were writing them after these incidents of violence, asking for legal advice and if they could bring suit. Sometimes the NAACP secretary would connect them to local branches, local sympathetic attorneys, or even sometimes offer on the fly legal advice based on the information that they were provided in the initial letter.

Even though this isn't a huge part of the NAACP's strategy, I think that this is a narrative that supplements the prevailing narrative about the NAACP and what it was doing with regard to legally dismantling Jim Crow. Then finally, as we shift into the World War II era and the post-World War II era, what I see is that Black Americans are facing much more police brutality. That police brutality is televised and sensationalized in Black newspapers — there's a lot of commentary about these cases. So one of the things I wanted to do was look to see the extent to which Black people were continuing to write to the NAACP and what those responses looked like. So right now I'm working on the chapter on police brutality where I'm analyzing what's happening with Black victims of police brutality and trying to figure out if they're still using tort law as a means of pushing back against this white violence that's inherent in Jim Crow, but also against police brutality.

I will conclude the book by tying together the late nineteenth, twentieth, and twenty-first century use of civil courts and public media to combat racial violence. I would like to add a short epilogue where I dedicate the book to the victims of police brutality and police killings in this country, particularly Black Americans. So that is the gist of the book. Now I have to finish writing it.

HULR: How do you define “Black Legal Culture” and what role did it play in challenging white violence during Jim Crow, especially when opportunities to earn Juris Doctorate degrees were scarce for Black Americans?

ME: I define black legal culture as how black Americans defined, made, reimagined, and applied the law on the ground. Historian Lawrence Friedman makes the argument that there is a legal culture, a way that a community or a society engages with the law, the way that people make the law, define the law, and apply the law. “Growing up” in this critical legal studies tradition (as an academic), I took up that argument.

There is one part of the argument that I think we forget sometimes when thinking about this idea of legal culture. Friedman also argues that there can be sub-legal cultures. I step in to say that Black Americans have a distinct (sub) legal culture. As I toy with periodization and think about how to parse out continuities and discontinuities across time and space, one of the things I found was that some of the elements of Black legal culture that I see under Jim Crow also existed during the antebellum period.

A colleague of mine, Kelly Kennington, writes about the legal culture of slavery. One of my mentors, Laura Edwards, writes about legal culture in the Post Revolutionary South. Then I have another colleague, Martha Jones, who writes about antebellum legal culture and ways that free Black people in Baltimore are using discursive spaces to define, redefine, and debate citizenship.

So I'd like to add to that conversation by saying that there is a distinct Black legal culture — that if you trace it, it morphs and transforms over time as black people respond to the evolution of anti-blackness and black oppression in this country. So I'm hoping that by having this idea of Black legal culture, we can look across periods, from the Antebellum period til the Civil War era through Reconstruction into Jim Crow, and trace out continuities.

HULR: Can you discuss the key findings of your dissertation, “Public Wrongs, Private Rights: African Americans, Private Law, and White Violence during Jim Crow,” and how they contribute to our understanding of the legal and social realities faced by African Americans during this period?

ME: In the first chapter of my dissertation, I look at these litigation strategies that Black Americans used to push back against the violence that characterized Jim Crow. I think the most surprising thing was that in Mississippi, Black people could sue white people in civil court for things that should have been prosecuted as crimes and actually win monetary damages. Sometimes those cases were affirmed at the appellate level. I think it's surprising in part because Mississippi is known for its violence, but it's also surprising because these were all white juries that ruled in favor of black plaintiffs. I think the other element of this that's surprising is the courage that it took for black people to bring these types of suits in the face of what could be violent repercussions.

Then the second chapter of the dissertation looks at Black newspapers. What I'm finding is that through the way that papers like The Defender are picking up stories and repackaging them through syndication, as we see with the Southern News syndicate in the 1930s, Black America is really connected by the black press. These stories that I'm finding in Mississippi are similar to other stories that are taking place elsewhere. Even if we can't track all of those cases through the newspapers, the fact that there's a discourse around tort law and Black people's use of it as a means of pushing back against violence I think is really important.

What I also see in this chapter is that even though in the early part of the period, the 1880s into the 1900s, a lot of the discourse about suing individual white people or suing railroad companies for abuses, sometimes peace officers, there is a shift in the coverage of these cases from involving common carriers like trains and buses to focusing on police brutality in the 1940s and 50s and 60s. I think that's really important to pick up on because I think that tells us that there is a shift in how black people are having to litigate, or at least in what types of cases they are bringing on the ground during this period.

Then finally, the last chapter of the dissertation looks at the numerical or statistical impact that the cases that I'm studying have on tort doctrine. I look at whether or not the cases from my dissertation are showing up in treatises and look at how often these cases are cited to make this argument that we need to restore sociocultural and historical context to the cases that we look at to better understand how we arrived at doctrine as we know it.

Although the practice with attorneys is to strip cases of their context so that the facts are easily applicable to other cases, I think erasing race and the context of Jim Crow obscures our understanding of how tort doctrine is created. So that's a broad overview summary of the dissertation and my findings.

HULR: Your research seems to focus on a particular historical period, but how do you see the themes and issues you explore in your work connecting to contemporary issues of racial justice and inequality in the United States today?

ME: I would say there are a few different ways that my work connects to current issues. On the one hand, I see my exploration of the black press as being, again, building out the work of people like Martha Jones, Kidada Williams, and others. I see this work as helping historicize what we see on Black Twitter and social media, people sharing legal information, offering advice, and making sure that those around them or those connected to them via social media know their rights.

We saw a lot of this in the uprising of 2020, where people were communicating through Twitter about what your rights were, how to get bail, reminding you to have an attorney on standby, making sure that somebody had a number for you, etc. People wanted to make sure that you knew everything you needed to know on the legal side before you went out on the front lines to protest.

I think that this democratization of information that we see on social media has roots in an earlier period. I also think that as we examine ways to push back against white vigilante violence and police brutality, my work is connected. We see there's a certain point in the chapter of the dissertation and in a couple of chapters in the book where the insurance companies that post bonds for police officers have had to pay out too much money for cases involving police brutality. They ultimately decide that they're not going to post bond for these folks anymore — in other words, they uninsured police officers.

From 2016 to 2022, we saw discussions about how to rein in police violence, one solution being raising the premium to insure cops. In 2022, news broke that the insurance company that insures the National Police Union raised the premium, in part, because they had to pay out so much money for police brutality and the killing of unarmed black people. To insulate themselves from some of that monetary payout, they required the police union to pay more. So one argument that I'm toying with is that maybe one way to get at reforming police conduct is making it financially costly for police and police unions, as opposed to for municipalities and the taxpayers. So those are the two ways I see my work connecting to the contemporary moment.

HULR: In your opinion, what are some of the most significant challenges facing African American Studies and History as academic fields, and how do you see these challenges evolving in the coming years?

ME: I think right now it's censorship. The work that we're doing in History and African American Studies shed light on some of the really dark spots in American history. The work that we've been doing over the last 50 years, in both disciplines, has done a great job of showing just how much Black Americans have contributed to shaping the foundation of this country, even in the face of white supremacy.

I think that students, whether it's K-12 or at the university level, are hungry for this information. I think that when having access to such information, they realize that some of these narratives about Black people that they have learned through their upbringing are not true. But also they learn empathy for the Black freedom struggle, for the freedom struggles of Gay people or LGBTQIA+ identifying people, Asian Americans, Mexican Americans, for all marginalized people in this country.

When we can see that our fates are linked and that our struggles run parallel, then we can mobilize ourselves in opposition to the oppressor. That is why I think that is one of the reasons why we see groups like Moms for Liberty trying to dictate what can and cannot be taught in certain schools. That is also one of the reasons why we see what's happening in Florida — which I'm sure will happen in other states.

Knowledge is power, and the people who control knowledge and knowledge production are the people that have power. So for those of us who are trying to create knowledge and empower our students, I think that we are a threat and I think that kind of oversight and censorship is a threat to us, our disciplines, and our work.

Final Thoughts

ME: Thank you so much again for the opportunity. For those of you who are interested in some of the ideas that I have talked about a little bit in this interview, in the fall, I'll be teaching a course called “Jim Crow Histories and Revivals,” where we look at some of these parallel freedom struggles as they relate to Reconstruction, Southern Redemption, and Jim Crow, to show how we might have gotten the interracial and intergenerational coalition that we saw in the summer of 2020.

I also am teaching a course called “Race, Gender, and the Law through the Archive,” where we look at the ways that Paul Murray, Angela Davis, Florence Kennedy, and others are lawmakers in their own ways, and really getting into their papers and seeing how they became law shapers and legal culture makers during their times. So again, thank you so much, Kyle. Thank you to the Harvard Undergraduate Law Review for allowing me to interview you all today. Have a wonderful day.