Tuesday, October 18, 2022
Diane Kemker (Southern University Law Center) recently published a paper entitled, Almost Citing Slavery: Townshend v. Townshend in Wills and Trusts Casebooks. Provided below is the abstract to the paper:
This essay applies the principles and lessons of Justin Simard’s “Citing Slavery” to a specific legal doctrine, “insane delusion,” and its treatment in contemporary casebooks. While Simard focuses on the judicial citation of slavery cases, this essay addresses legal pedagogy, the use of slavery cases in casebooks. The leading national and California-specific wills and trusts casebooks both use Townshend v. Townshend, an 1848 Maryland case, to teach the doctrine of “insane delusion.” Townshend was the first U.S. case to use the doctrine to invalidate a will, but neither casebook includes a crucial fact: that John Townshend’s “insane delusion” was that the salvation of his soul required emancipating the more than fifty enslaved people he owned at his death. The essay argues that if this case is used at all (and it need not be), this fuller context should be made clear, and ideally, this case should be taught alongside an 1840 Kentucky case, In re Weir’s Will, which reached the opposite conclusion on very similar facts.