As I suggested several months ago, Lanier v. Harvard provides a potent set of facts in which either the Massachusetts courts or Harvard University could engage in transitional justice. The recent Massachusetts Supreme Judicial Court ruling largely promotes private transitional justice to remedy the ongoing harm, but both concurrences suggest a preference for the courts to also play a role. While the actual holdings and proposed remedies are quite narrow, the recognition that institutions involved in inflicting slavery-related harms can continue, by their actions today, to harm their descendants is a broad invitation for this nation in both public and individual private capacities to engage in a transitional justice enterprise.
By way of brief reminder of the case’s underlying facts, I wrote
During the antebellum period, noted biologist Louis Agassiz developed the scientific theory of polygenism, the now debunked idea that different human races derived from wholly different origins. Adherents often also believed that the black race was not only distinct, but lesser. Agassiz picked out several enslaved Africans on a South Carolina plantation to be photographed and studied as scientific evidence. A local photographer stripped the enslaved individuals, including Renty Taylor and his daughter Delia Taylor, and took their pictures, some of the earliest remaining pictures of enslaved persons in America. After Agassiz donated the daguerreotypes to Harvard, they languished until discovered in a museum cabinet in the 1970s. Despite the finder’s urging that ancestors be located, Harvard retained the images for tightly controlled viewings.
Fast forward to Tamara Lanier, a descendant of Renty Taylor, who upon learning of the existence of the pictures, wrote to Harvard requesting they help her confirm her research relating to the subject of the photographs.
According to Lanier’s submissions, Harvard initially indicated that it would keep her apprised of any new information related to the lineage of those in the daguerreotypes as well as how Harvard would use and display the pictures. Despite such promise, and without notice to Lanier, Harvard displayed the images in a conference next to text praising Agassiz, omitting the context of his work, and stating that after the daguerreotype was taken, “Renty returned to his invisibility.”
The Massachusetts Supreme Judicial Court uneasily affirmed Harvard’s ownership over the daguerreotypes, but surprisingly allowed causes of action for negligent infliction of emotional distress and for reckless inflection of emotional distress to move forward. One concurrence invited future plaintiffs to submit novel claims to seek ownership and one concurrence proposed a cause of action for descendants of slaves to receive ownership of wrongfully attained property. In this column, I’d like to explain how each opinion might fit within transitional justice.
The majority’s 7-0 opinion conclusion that Harvard owed a duty of care to Lanier highlighted the extraordinary circumstances of this case. The court found that given “Harvard’s complicity in the horrific actions surrounding the creation of the daguerreotypes, once Lanier communicated her understanding that the daguerreotypes depicted her ancestors and provided supporting documentation,” a duty arose for Harvard to use reasonable care in responding to Lanier. The court emphasized that Harvard’s duty did not arise from “its voluntary representation to Lanier that it would keep her informed [about the use and display of the daguerreotypes and any new information related to her lineage claim.” This is not a case following a close line of precedent about voluntarily assumed duties. Instead, Lanier’s mere communication and Harvard’s complicity standing alone triggered a duty of care. In ordinary cases, the mere existence of correspondence would not trigger any special duty on the part of the respondent. For instance, if someone wrote Harvard about a piece in the Peabody collection to which Harvard retained clear legal title, normally Harvard could fail to respond, promise further information and not deliver it, or write a rude response without fear of legal consequence. But the court emphasized the importance of Harvard’s “horrific, historic role in the coerced creation of the degrading daguerreotypes” recognizing the transitional context of Lanier’s claim and how her claim was related to an extraordinary wrong rather than an ordinary one.
The court then determined a jury could find that Lanier’s assertions about Harvard’s behavior would breach their duty of reasonable care. In other words, their public and summary dismissal of Lanier’s ancestral connection to Renty Taylor, their failure to contact her when using Renty’s image, and rebuffing her attempts to tell Renty’s story, could rise to the level of a breach. The court found the alleged behavior so outrageous it went further and allowed that a claim of reckless infliction of emotional distress was plausible as well.
In describing the duty and potential breach, the court engaged in the sort of articulation of harm and assertion of humanity of the victimized individuals essential to the educational imperatives and historical affirmations of a transitional justice process. It did an excellent job of explaining exactly why the past was not simply past, but an ongoing injury perpetuated by Harvard. Take, for instance, this language from the majority:
Renty and his daughter suffered not only a gross interference with their bodily autonomy but also an invasion of their personal privacy and an affront to their dignity. Any subsequent display and dissemination by Agassiz and his associates of the daguerreotypes resulting from this sordid episode, by exposing to public gaze degrading and dehumanizing undertaken while he served as a Harvard professor and in his role as an academic researcher. . . .
What was at stake for [Lanier] was the continued exposure and exploitation of images of her ancestors by the very institution complicit in the coerced and invasive creation of those images. In these circumstances, basic community standards of decency dictate that the institution complicit in the extreme and outrageous actions by which the degrading daguerreotypes of Lanier’s ancestors were produced should, . . . ‘willingly make amends’ for its past actions or at least ‘stop perpetuating the wrenching pain of the past by engaging in good faith with her, both about her ancestral connection to the individuals depicted in the daguerreotypes, and about how these degrading and dehumanizing images would be used going forward, particularly in public displays.’
At the same time, however, the majority found nothing in the law to force the return of Renty Taylor’s daguerreotypes to Lanier. It noted that even the remedy for the dissemination of revenge pornography is criminal liability rather than the transfer of ownership rights. Similarly, forfeiture laws for property connected to criminal activity require forfeiture to the state rather than individuals. Instead, the majority suggested the Massachusetts legislature as the proper actor to enact transitional justice. Should the legislature take up such an invitation, the court signaled its interest in enforcing it. And implicit in the opinion is the suggestion that Harvard could, consistent with its recent promises to address slavery, simply voluntarily give the daguerreotypes to Lanier.
Chief Judge Budd’s Concurrence
Judge Budd takes the quiet part of the majority opinion and says it out loud. Harvard should renounce ownership of the daguerreotypes even if the court cannot force it to do so. He concluded that “Harvard’s continued retention of the daguerreotypes despite Lanier’s competing claim to them is patently unjust. However, this court cannot remedy a perceived wrong based solely on a strongly held moral belief.” Thus, he suggested that the ethical codes of museums and research institutions to communities ought to be voluntarily enforced even when “institutions hold valid legal title to the artifacts at issue” He praised a number of institutions for their focus not “on technical questions of legal title but ‘on ethics’.” He suggested that disregarding the wishes of individuals connected to pieces in their collections “would be to signal that the inequitable power structures that enabled the archival institution to possess the contested pieces live on. To send this signal is itself a form of violence.” He highlighted several private institutions, such as the Smithsonian and its ethical returns working group which voted for the return of the Benin statues, as engaged in ethically if not legally required justice. He called on private actors like Harvard to do transitional justice work themselves rather than pursuing legal defenses to private claims.
But in the absence of full voluntary compliance with relevant ethical norms and principles, Judge Budd remained cautiously open to the possibility of judicial intervention. Even as he rejected Judge Cypher’s newly crafted right and remedy (discussed below) as inconsistent with the court’s limited role, he encouraged future plaintiffs to bring novel claims in hopes that one might have more traction than Lanier’s. He even suggested an unjust enrichment claim with particular attention to why an “ancestor of an enslaved person should be permitted to sue on behalf of and recover in the place of her enslaved ancestor.”
Judge Cypher’s Concurrence
Judge Cypher’s concurrence stakes the strongest position as the courts being an appropriate agent of transitional justice. First, she distinguishes between ordinary property claims and the plaintiff’s transitional claim. She explains that while existing law provides no remedy, existing law is designed for ordinary claims and not for resolving claims that “derive from the legal fiction, inflicted on Renty and Delia, ‘that turn[ed] humans to chattel property.” Perhaps even more extraordinary for a sitting judge, she suggests that the period of transitional wrongs ought not be conceptualized only as the distant past of slavery, but should include the period of segregation, disenfranchisement, and racial degradation. Judge Cypher argues that the combination of all these actions leaves a “legal system several generations later devoid of a sufficient remedy for the injuries and injustices [Lanier] has faced as a descendant of enslaved Africans and African Americans.” She argues that the Massachusetts courts’ role in allowing enslaved individuals seeking freedom to be forcibly removed by their enslavers and in developing the separate but equal doctrine means that the Massachusetts court has a “continuing responsibility to ensure, to the fullest extent that our role as Justices may permit, that the common law provides a remedy for every substantial wrong.” This is an extraordinary recognition that it is not just enslavers, not just institutions like Harvard that valorized researchers justifying slavery, but the very institution of the courts themselves that participated in the extraordinary wrongs committed against individuals like Renty and Delia.
Given this history, Judge Cypher believes the court can and should use its equitable powers to create a new remedy in light of “evolving societal norms” of what is unreasonable and intolerable. Judge Cypher proposes a narrow cause of action for those seeking property in similar circumstances: (1) Direct lineal descendants of enslaved individuals who have (2) made a request for (3) an artifact which provides a meaningful connection between the plaintiff and her ancestors (4) which was created or obtained as the result of enslavement of the plaintiff’s ancestors should receive possession from (5) defendants who participated in the wrongful creation or attainment of such artifact. Judge Cypher acknowledges that Lanier’s claim is likely sui generis as few such items will be sufficiently documented in such a way to allow a plaintiff to show the artifact provides a meaningful connection between the plaintiff and her ancestors.
In conclusion, the court’s holdings and even the concurrences’ proposed causes of actions are fairly narrow, but their recognition of the need for both private and state-based transitional justice is unusual in American jurisprudence. It may even provide a foothold for other descendants of slavery seeking justice.