Alfieri, Anthony Victor, Resistance Songs: Mobilizing the Law and Politics of Community (February 24, 2015). University of Miami Legal Studies Research Paper No. 2015-09; Texas Law Review, Vol. 93, Forthcoming. Available for download at SSRN: http://ssrn.com/abstract=2569159

“In 1925, the City of Miami built a trash incinerator in the de jure segregated Afro-Caribbean-American community of Coconut Grove Village West (“the West Grove”) amid rows of shotgun style houses and Jim Crow schools. Commonly known as Old Smokey, the incinerator discharged airborne carcinogenic chemicals (e.g., arsenic, benzo(a)pyrene, cadmium, and lead) and produced residual toxic waste (e.g., ash, liquefied plastic, and melted glass) for 45 years until Florida courts finally ordered it closed in 1970. In 1978, notwithstanding community opposition, the City of Miami converted the 4.5 acre Old Smokey site and incinerator building into its Fire-Rescue Training Center which continues to operate today. In 2013 and 2014, West Grove residents working in collaboration with faculty and students from the University of Miami School of Law learned from a whistleblower-leaked municipal environmental report that long-term exposure to Old Smokey’s airborne carcinogens and toxic waste dump sites had caused extensive soil and possibly groundwater contamination of homeowner properties and public parks in Coconut Grove and across the City of Miami and Miami-Dade County. This Essay investigates the historical absence of civil rights- and environmental justice-incited legal and political mobilization around Old Smokey in light of Professor Lea VanderVelde’s important new book Redemption Songs: Suing for Freedom before Dred Scott. In Redemption Songs, VanderVelde, a distinguished legal historian, builds on her much praised biography of Mrs. Dred Scott and the contemporary work of historians in the field of slavery to study the nineteenth century practices of antebellum freedom suits in St. Louis, Missouri and in the western territories. VanderVelde carves out several lines of inquiry in Redemption Songs useful for historians of race and advocates for the legal-political rights of impoverished racial communities. Closely interwoven, the inquiries seek to ascertain how enslaved men and women learned that their residence in free territories conferred the legal right to sue for freedom and, further, how they advanced that emancipatory right in the St. Louis courts. More specifically, VanderVelde asks, who actually “instructed” the enslaved? Who, in St. Louis, Missouri, and the western territories, “led the way?” Why did some enslaved parents, children, and families “delay” and “wait” to file suit? What were the end results of the lawsuits and what “factors” influenced their in-court and out-of-court outcomes? To resolve these questions, VanderVelde parses the extraordinary collection of freedom suit petitions filed by slaves in St. Louis between 1814 and 1860. These freedom suits, according to VanderVelde, tell stories of nineteenth century caste, class, and racial status. Equally important, the freedom suits tell stories of nineteenth century judges, lawyers, and legal rights consciousness in the contexts of racial advocacy and adjudication. In the same way, civil rights and environmental justice suits tell stories of twentieth and twenty-first century caste, class, and racial status, affecting stories of chronic illness and widespread contamination bound up in the work of judges and lawyers, and informed by an expanding legal consciousness of common law, statutory, and constitutional rights to a healthy and safe environment. By discrete historical turns, freedom suits, civil rights suits, and environmental justice suits tell stories of individual, group, and community rights under conditions of cultural, political, and socio-economic subordination. Viewed from the bottom, these same stories of freedom, civil rights, and environmental justice are also about individual and community power expressed through multifaceted forms of legal-political resistance.
The purpose of this Essay is to draw out the lessons of antebellum freedom suits, and, by comparison, modern civil rights and environmental justice suits, to learn how to tell better stories of community power and resistance in Miami and elsewhere. For historians and advocates alike, better stories are not only more accurate descriptively, but also more potent emotionally or expressively and more effective instrumentally or prescriptively. To draw out the historical comparison between freedom and civil rights or environmental justice suits and to hone better legal-political stories of resistance, the Essay revisits the principal set of questions animating VanderVelde’s nineteenth century investigation. However basic these questions may appear at first glance, they warrant continuing reassessment and reconsideration by lay and legal advocates, law school clinical faculty, law students, and university scholars. Consider, for example, the threshold question – how do subordinated communities of color learn of their legal rights? Further, how do they advance their emancipatory, civil or environmental justice rights without equal access to courts or effective representation? Who does and who should “instruct” such communities in their legal rights? Who, in St. Louis, Miami, or other inner-city communities across the nation, “leads the way?” Why do some individuals, families, or groups “delay” and “wait” to file suit? What are the end-results of civil rights and environmental justice lawsuits spearheaded by subordinated groups and communities, and what “factors” influence their in-court and out-of-court outcomes? Although beyond the cabined scope of this Essay, these fundamental questions of civil rights, environmental justice, and poverty law frame its broad contours and invigorate wider research on law and social movements.  The Essay proceeds in three parts. Part I parses VanderVelde’s central notions of subordination, voice, and redemption and illustrates their resonant force in the recently compiled oral histories of Old Smokey survivors. Part II examines VanderVelde’s interpretation of St. Louis freedom suits and the Missouri legal rule of freedom-by-residence. Part III recasts VanderVelde’s interpretive stance on antebellum freedom suits against the backdrop of Old Smokey to consider legal-political rights campaigns and community resistance strategies in the context of civil rights and environmental justice claims.“