Using law to understand place, and vice versa

by Joseph Blocher

Lanty L. Smith ’67 Professor of Law Joseph Blocher, the only Durham native on the Duke Law faculty, makes the legal issues relating to the city’s political, social, and economic development the focus of his Urban Legal History research seminar. Blocher is serving as co-chair of the Durham Sesquicentennial Honors Commission.

Teaching and lecturing on law and Durham is really a way to explore both concepts: to use law to understand place, and use place to understand the law.

Obviously one goal is to explore Durham’s identity and development as a matter of law. Over the past 150 years, this town — my hometown — has been the site of, and a participant in, some truly extraordinary history — the end of the Civil War, the rise and fall of the tobacco industry, the remarkable success of the Duke family and Black Wall Street — and the scene for remarkable moments in civil rights, arts, education, sports, and other areas.

But the more subtle goal is to use place to understand law. Partly because of the way the case method and the standard legal curriculum have evolved, it can be easy to get caught up in conceptual labels — like asking whether a case is about “torts” or “property” — and lose sight of the ways in which law both shapes and is shaped by the real world. It’s really important to know the map, but there’s no substitute for knowing the territory itself.

So the point is not only to explain how Durham got its borders and what has happened within them, but also to make the law visible. In keeping with that theme, it is probably better to show what I mean than to say it. Here are a few examples.

Durham has its name because Dr. Bartlett Durham sold a small parcel of land to the N.C. Railroad, which built a station here and named it in his honor. Just a few years earlier, William Pratt had been approached with a similar proposal, but set his price too high, supposedly because he was worried that the noise of the trains would scare his customers’ horses. If he had been less concerned about the quiet enjoyment of land (a fundamental concept in nuisance law, of course), Duke University might be in Prattsburg instead of Durham.

Just north of town, the Stagville plantation was a vast plantation complex that included nearly 30,000 acres and 900 enslaved people. It is important to remember the ways in which law, laywers, and judges were a part of the system of slavery. In 1834, the N.C. Supreme Court decided State v. Mann, one of the most notorious slave cases, in which it held, “The power of the master must be absolute in order to render the submission of the slave perfect.”

Some of the most intense legal battles in Durham’s early years were about intellectual property — and, in particular, the right to control the Durham brand and the image of the bull. Many of these cases (including those between the Wright mark and the Blackwell mark, pictured) were litigated right around the time that the first federal trademark law was passed in 1870.

The Duke family’s success is well known, but in some respects the most remarkable story of business success in Durham is that of Black Wall Street and the companies — N.C. Mutual, Mechanics and Farmers, and others — that made it possible.

The contemporary debate about gentrification in Durham has roots that go back at least to the 1930s and to the implementation of federal policy. The “redlining” maps from that era are still a relatively accurate guide to the areas where that debate is alive today.

Like many places, Durham embraced — and still feels the effects of — “urban renewal” and highway construction, both of which were constructed through the power of eminent domain. As a result, neighborhoods like this one (Brookstown, which is currently underneath N.C. 147) have disappeared. Whether or not that kind of change is justified is a hard question, but it is undoubtedly a testament to understanding the importance of the relationship between law and place.