-: SJC-13138 Tamara Lanier V President
and Fellows of Harvard College and Others.
-: Okay attorney Koskoff.
-: Yes, thank you, madam Chief Justice.
May I please the court,
very privileged and honored to be here today
on this truly remarkable case.
Oh, I can take my mask off too.
(chuckles)
That's a relief.
And I wanna thank the court for hearing this case.
There will not be another one like it in your lifetimes
or your descendants lifetimes,
most likely we hope.
I would ask the court to take a look at AV1053.
This is a part of our complaint
and it bears a very poor quality photograph
that is meant to depict this book.
And I know that this isn't the largest photograph,
but we do cite to it in our brief.
And I want you to take a look at the cover of this book.
If I can tell you you're gonna (indistinct)
I don't know what's worse.
The version you have or trying to see
it from there but I can tell you that this is a photograph.
What was called a daguerreotype of a human being.
And if I were a Harvard scientist,
and I told you, the man on this cover
was a brick layer.
You would see him as a brick layer.
If I told you that he was a distance runner,
you would see this man as a distance runner.
If I told you he was a slave,
you would see him as a slave.
And if I were a Harvard scientist,
and I told you this man was a doctor,
it might be a tough call for some of you.
Why would it be a tough call?
Why?
Because it would pit two biases that are very much in play
in this case against one another.
One bias, is the bias this court references
the unconscious bias that runs in the bloodstream
of this country that we grew up with.
The other bias is a hidden,
is even more hidden bias,
which is the bias that a lot of people
have, which is a favorable bias.
A bias for Harvard,
a bias that some of us also grow
up having learning about Harvard.
So we would be conflicted by these biases.
And I dare say that most people would go, a lot of people.
I don't know if everybody would, a lot of people
would go with doctor that's how strong
the biases for Harvard, whether or not it was true or not.
And if I told you that there was in the moments
before this photograph was taken,
this man was raking leaves.
And he was asked to come in for a photograph.
And I were a Harvard scientists.
You would believe that if I told
you who he was posing willfully for the photograph,
you would believe it.
Photographs capture a picture in time,
but they can distort and a lie
because this man is really none of those things
that I just mentioned.
This man was a great, great grandfather
of my wonderful client to Tamara Lanier.
He was a human being, he wasn't invisible.
His name was Papa Renty.
And what you wouldn't know if I were a Harvard scientist
telling you about this man,
is that he ran religious ceremonies among the enslaved,
which was punishable by a beating or whipping.
You wouldn't know that he taught himself to read.
You wouldn't know that after his emancipation,
after years and years of servitude that he went to vote,
you would know none of these things.
But tomorrow and when you hear new these things.
And like you would...
Like we would, many of us would trust Harvard
to give us the straight story
so too did Tamara Lanier.
And when she was in a conference,
take a look at AV1053189
that's paragraph 189 of our complaint, okay?
So this tells you everything you need to know
I think about the case.
-: Well, I think we need to understand the property right.
So can you focus in on that for us?
Because we're deciding a legal case
in a complicated area of law,
and I'm not sure I understand how this is a property right.
I understand that the Garret type itself is property,
but I don't understand how your client
gets a property right in that, will you help us understand-
-: Absolutely-
-: And precisely to-
-: Completely we agree that.
So the property rights are...
When we think of property rights,
I think traditionally as sort of very square things.
There's replevin and we learned law school replevin
conversion and these really sort of very cookie cutter
type things.
But in reality property rights is a bundle of rights
and it involves relationships among a physical
object often, but oftentimes not a physical object
intellectual property, at melody, right?
Things that can't be seen, but they can be heard.
-: There's some argument
isn't there also that property rights,
we all have a property right in our body.
-: Exactly, and if you think about a property right,
it's closely related or maybe not an identical twin,
but a fraternal twin of rights of privacy,
we have they often are spoken of together.
So the right of-
-: But isn't a right of privacy.
-: I'm sorry.
-: Isn't that a torque right?
-: Yes, it is.
Well it's-
-: And that's important if we're...
I understand there's a right of publicity
about photographs and a right of privacy,
but again I'm not sure how you convert
those into property rights.
Can you...
Again, I think you'd need to be specific here to be helpful.
-: I see the court struggling and it is.
It is these rights that the property rights
gets into a very...
Can get into a very fuzzy area.
And I'll answer it this way, property rights,
I don't...
That the privacy right
part of property rights is a consideration,
not an action in of itself.
So one of the things to consider
is if you beat me up and you hack off my arm, right?
You've taken something for me in a forceful way,
you stolen my property, my left arm,
hopefully 'cause that's my non-dominant,
but you have stolen something from me, right?
And we don't normally think of an arm necessarily
as property.
If you take me and you steal
me from my home against my will, and you subject me to a-
-: Again, that's very clear.
If I take you and cut off your arm,
not only have I engaged in criminal behavior,
but I've also engaged in a torture.
But again convert all of this into a property right,
that you can pass on to your great grandchild
that I need to better understand.
-: Okay and I'm gonna use your paradigm
there because it was perfect.
And really the question is what is the property,
right in this case, under these circumstances?
And the circumstances dictate
property rights all the time.
In this case tort a very Peyton,
very severe tort,
several torts were committed against these two...
Against his father and this daughter.
And we could make a list of 20 torts
that were committed, right?
It was wrongful to take them to still-
-: So lets just in the interest of time,
can see that there were torts committed
against these individuals
who's daguerreotypes for taken.
How do you translate those torts into a property right
for your client this many years later?
-: Well it's the parties don't agree on much,
but the parties agree that the rights of Renty
and Delia are the rights of Tamara Lanier
in terms of property.
-: And would you say that, is there any issue
with regard to whose rights are superior
Harvard's or Renty and Lanier?
-: Yes right and right now
there has to be because we don't have a record
of in front of us that tells us what Harvard's
claim is to these and we're very curious
about that, what their claim could be.
-: Though my understanding is there's not much in the record
regarding provenance of the...
On how they kept it.
-: Is right and this is of course,
a motion to dismiss our case.
So they haven't had to state their claim.
-: And what kind of...
What's the standard on a motion to dismiss?
-: Well it would be...
I mean we would take the light most favorable
to sustaining our cause of action
and to proceed to develop a full record.
-: Well, but will the trial,
the motion judge used a standard of does it plausibly
suggest there's an entitlement to relief.
-: Right, I mean, that's-
-: That's a pretty low standard.
-: It's an extremely low standard.
We all are familiar I think with some version
of the standard, which is the law favors trials
on their merits.
And dismissing a case is a very severe sanction
on a record that is really built on simply
an allegation, so-
-: Ken but you didn't really answer
Justice Wendlands' question,
which is, okay so those were torts or crimes committed
against the ancestors.
I completely understand that.
How does that can convert it into a property right
for the descendants?
'Cause that's I don't understand that tort,
do those types of torts survive-
-: Well the way-
-: In tort law.
I mean, I understand it's like a legal distinction,
but that's sort of what we do.
-: So the court is looking for some clarity on...
Well, because the original...
So we're talking about a time period,
that was obviously before the enactment
of the 13th and 14th Amendments, where these individuals,
as human beings had no rights to property right.
-: But we're conceding,
we're rewriting history a little bit
where we understand that those were towards
or criminal acts against the two ancestors.
We're trying to understand how you convert
that into a property right
for your client 150 plus years later.
-: Well, there's no...
But the parties agree that the rights of Tamara Lanier
are those of that she inherits those rights.
Because the part...
Because we all know that that Renty and Delia
were foreclosed from passing on their property
in the first place, because-
-: So you'd argue,
you'd really be making this argument and equity?
-: Well that's an (indistinct)
there's a lot of (indistinct).
-: We can't really rely on our traditional property law here.
-: Well, I think I wanna just go back
'cause I'm not sure Justice Cypher
if I actually really-
-: Well, I don't know the maybe Justice Wendlands
knows the answer.
I just don't know the answer.
If you have to convert a toward into property
'cause torts don't survive and pass on to descendants
the way property rights do, tort rights.
So somehow there needs to be some conversion
into an inheritable right.
So I'm just trying to understand how that works.
-: But property...
First of all, property law is a aspect of tort law,
and they're not distinct entities in the same...
The same considerations go into resolving a property claim.
For example, what is the relationship of the parties
and what are the (indistinct)
what is the conduct of the parties in relationship
to a given a piece of property right?
So I just wanna make sure that we're on the same page,
that you have the big umbrella of tort law,
and within that lies property law
and the same act, the same fundamental principles govern
one principal very much in play here is that the wrongdoer
can never be rewarded for their wrongdoing.
That would turn tort law on his head, and-
-: Your position is that the ancestors,
the tort committed against the ancestors
in taking the daguerreotypes types,
made them the owners of the daguerreotypes.
And that therefore the current plaintiff
is the owner of the daguerreotypes,
Is that right? -: The part two,
yes one and a half out of two.
(laughing)
-: (indistinct) tell me why (indistinct).
-: So you got this.
So on the second part of the question,
'cause I think we're talking about two questions.
One is what is the original property right
of Renty and Delia?
The second question is how does that relate
to Tamara Lanier rights to that property?
The second question is not in dispute among the parties.
We agreed the threshold question is Renty and Delia
has rights to the property.
And that if Renty and Delia had at least a possessory right
to answer, I think justice Cypher
you asked about what about...
What's Harvard's claim?
And so that would be at a minimum a possessory right
we're arguing 'cause two or more parties
can have a possessory interest
in a piece of property right.
-: So you believe Harvard's conceding
that whatever rights the ancestor had the plaintiff has?
-: I think that's in our papers.
But I do wanna get back to that we often think
of a thing of a property right,
a property being exchanged for something of value,
typically cash, right?
But we need to get away from that construct
because it's too restricted
properties often not exchanged for cash.
-: What if we don't look at it that way and look
at this property as I think you argued, it was a fruit.
-: A fruit, in the papers we call it a fruit or a spoil of-
-: But it also be an instrumentality
in that Dr. (indistinct) was going to provide evidence
for his theory.
-: Exactly, so it was a thing of value.
First of all when we typically get our photographs taken,
they're taken of us not from us, right?
They don't take anything from us.
They don't abuse our people,
photographers don't typically or hopefully abuse
us to get photographs.
They're not taking anything of value
from us but if ever there was a taking of value,
it was the taking of Renty and Delia
in these abusive and torturous circumstances.
So Renty and Delia gave up something of value,
they gave up there...
And to answer your the issue of privacy
and the close relationship,
they were falsely imprisoned,
their rights of privacy and not talking with a big P
in terms of the cause of action.
I'm talking about as a consideration for these...
For something of value was taken from them.
And that is so much more valuable
than the typical customer
back then which would be and we have to speak frankly,
a white family who would go in, they wouldn't be stripped.
They would wear their Sunday's finest.
They would exchange some amount of money
and they'd walk out with a beautiful
shiny daguerreotypes
that they could then pass on to the generations.
-: Can I ask you, do you know how long-
-: Okay, go ahead.
-: How long does, it take to create one of those?
Or did it take.
-: Well, it takes about a minute of like a pose.
So it's like (indistinct)
it can be and they have things that prop you up.
Like literally so that you can...
I mean I've never...
I'm gonna answer your question I've never had one taken,
but it could take hour?
My learning co-counsel has informed me.
It's a long process of like emulsifying
if my science teacher could see me now.
-: Maybe that's a better question for Attorney Crump if he.
-: Yeah, well, he's-
-: I just had one question
that I wanna give you the opportunity to answer.
-: Yes, sir.
-: Would you please address
the 1st Amendment implications of this?
-: The 1st Amendment...
Okay so the 1st Amendment implications
is a straw man.
What the daguerreotype is a tangible piece of property
that was wrenched or extracted from two people
who had no say in the matter
and they were victims.
Just as if they pointed a gun
just as if Agis has pointed a gun at these two human beings
and shot them through the head
wouldn't jeopardize the 2nd Amendment.
So too is the 1st Amendment,
it's just not this case.
There is no jeopardy whatsoever the 1st Amendment,
in fact if you were to balance the 1st Amendment
as something like as a counterweight to what happened,
then that means you could abuse somebody
under the gauntlet of the 1st Amendment
and use the fruits of that abuse
and hide under the 1st Amendment.
I mean as as we all know, amendments are not limitless.
But I I've had the expression,
the right that I have to use my fist (indistinct)
your face, somebody face.
And I really...
Have I...
Are you satisfied.
-: I want to give you the opportunity to address that.
I know that's...
-: Yeah, I know I appreciate that.
And it's a very clever argument
but it's (indistinct)-
-: Follow up on that.
So the pictures are terrible and they depict
how terrible slavery is, is that...
That's part of what scholars study and explain
and what the media covers, so isn't there...
I mean, say you're a scholar of reparations
or you're a scholar of the horrors of slavery.
You're now, is this off limits to you?
-: But only if you're a scholar who is abused people
for the rest of your scholarship.
-: Well, I thought you say though that no one...
If your client doesn't want anyone to at this, right?
These pictures then scholars
will be also not able to look at them, right?
-: And they shouldn't be, if somebody
still one of the justices,
I don't wanna single anybody out.
If somebody stole your family photo from your living room
and that person said,
I don't really care if this is your family photo,
because I'm a scholar and I'm writing about Boston-
-: Let's do the analogy, the Holocaust pictures.
-: Holocaust, what-
-: So you're a descendant of someone
who was in one of the camps.
Those pictures are terrible.
-: They are.
-: And they're hurtful to anyone who looks
at them, but don't that helps condemn the acts
by looking and studying them.
-: Right and generally speaking,
photographs of atrocities don't belong to the victims,
even though some people may think
that they should, but if you use and-
-: Is that similar to this?
-: Actually it's not,
it's again very clever, but it would...
It's what my kids would call a cellphone
because what the argument was, and this is in their brief,
was that this is like not a Nazi Germany in the Holocaust.
And we learned so much from those photos,
but we didn't learn them from the third Reich
that committed the atrocities.
It wasn't we weren't relying on a third Reich
to explain this to us, Harvard stands
in that position. -: I'm not saying
the third Reich should have them.
-: I'm sorry.
-: I'm agreeing with you that the third Reich
shouldn't have, the question is sort of does the public
have a 1st Amendment interest in this?
-: Yes, so really it's almost an ends justify the means.
It depends who you ask.
-: Well I don't know- -: I think if you asked
Renty and Delia, they would say you know what?
We didn't wanna be part of the public's education.
And part of my point in explaining
this, this is that it's you can never subordinate
abuse of somebody in the name of education
and that's essentially and what these arguments
are about the comparison to the first amendment
or the Holocaust or the scholarship
and that is the same thing
I have been hearing a lot because we think of Harvard
as only doing good and in service of-
-: I don't think we come with any bias towards Harvard
versus your client.
So I wouldn't read into that at all.
-: But its I take the point and it's a very...
This case actually brings that question up-
-: And counsel this case doesn't resolve
that question necessarily
just if it went back to go for further proceedings,
after a motion to dismiss,
it's not going to automatically mean
that Ms. Lanier can...
We'll have the daguerreotype- -: That's true.
-: Or would withhold it- -: Exactly.
-: Even if she had, it would withhold it.
There's nothing about that here.
-: It wouldn't have really mattered
whether Harvard after the securing daguerreotypes
and after this event happened where the tort had occurred,
the theft what we say is the theft had happened.
The fact that years later,
they put out a publication
and tell a story for what they call educational purposes,
does nothing to their accountability
for that original wrong.
And it is in no,
and in a society that a law that allowed people
especially big educational institutions to torture people
and then years later say, well let's write ups,
treatise on what people look like when they're tortured
and not ever confront the original wrong,
that would really turn what we all think of.
I think of fairness legal system upside down.
I just wanna say one quick-
-: Sure but before you need
to say that I just have one...
I have two questions.
And one question goes to count four,
which is your constitutional claim.
And that count four in the complaint
and that's based to section 12,
subsections 11I, right?
-: I'm gonna save the court some headache
we are not pursuing the constitutional claim,
it's very unduly complicated.
We've provided the court with several different,
property laws a little bit like hun dies.
There's lots of different mechanisms
to get where you're going.
There are several different vehicles
to get to the, it's a means to an end.
-: Okay so you not pursuing that-
-: Right, so I would-
-: So my other question is if we ended up concluding
that the doctrine of Laches
is applied to the plaintiff's unjust enrichment claim,
what legal theory are you contending
we would use to toll that statute of limitations.
-: Well Laches and (indistinct)
I mean, but let me just say something quick,
(indistinct)
We just have the statute of limitations.
There's a really fundamental dispute
about this in this case.
It's like all factual session limitations
as the court knows is almost universally a factual dispute
and it's seldom can suddenly and be resolved at the motion
to dismiss stage on a thin record,
especially when you have some...
Especially where it's a complicated issue like this.
And just, I just want the court to bear in mind
that the legacies of slavery,
one of its most enduring legacies is this destruction
of the family.
So for an individual in Tamara Lanier's shoes
who's a probation officer working a full-time job
to try to put the pieces together
and overcome this incredible burden of tracing her ancestry
is not sort of like commonly understood by people.
And I'm guessing the court's never been in a position
to do that.
I mean for most of us we can go to ancestry.com ,
that doesn't work
that way for a descendant of an enslaved person sadly.
And so the argument that she...
By Harvard, that after telling her that she wasn't related
or they didn't-
-: So you're saying the discovery rule is subject
to factual disputes- -: Absolutely.
-: That really can't be resolved at the dismissal stage.
-: Exactly and I asked the...
Exactly I couldn't have said it better actually.
-: Okay (indistinct) I understand
this is a very important case no question.
Part of our problem is we don't know
what you were supposed to argue,
and then what Attorney Crump was supposed to argue.
And I don't think...
I think the justices wanna make sure
they get all their questions answered,
but we don't know the right person to ask.
You've had a plenty, a lot of time,
a lot but-
-: I'm getting the hook.
(laughing)
I mean I think that the issues I wanted
to address property statute limitations,
but I think it's simple at this stage for the court.
I would just suggest that there's disputes.
We say the discovery wasn't made until 2017
sufficient for Ms. Lanier to really overcome
this burden and essentially bring this claim
against this mighty institution
who had already told her that she didn't have enough.
And then I wanted to hit on the issue
of joinder really quickly,
because there are some cases
where if you're in a property.
-: Don't worry about that one.
But before you sit down,
I just wanna make sure that both you and Justice Wendlands
feel that you have answered her question about-
-: I think I answered my own question.
(laughing)
-: Okay we're all set.
-: I liked your answer so I (indistinct)
Thank you, I appreciate it.
-: Okay thanks.
-: And I'll turn it over to my wonderful colleague.
-: Great.
May I please, the court,
I want to give just three brief historical references
before we get to the crux of the matter
of the property rights and the purpose possessory
interest rights that are state here in this case.
I'm Attorney Ben Crump.
And the fact that I stand before you as a free man
and not slave
is a Testament to someone's decision
to change the course of human history.
It is a Testament to our legal system,
a Testament that was led by the courts
here in Massachusetts,
when Chief Justice, James (indistinct) in 1783,
judicially abolished slavery in the (indistinct) case.
And it is the reason why he is so often quoted
even 250 years later
with the whole thing that idea of slavery
is inconsistent with our conduct
and our constitution.
The second historical reference
is from the great Negro abolitionists, Frederick Douglas,
who once said genealogical trees of black people
do not flourish as a result of slavery.
In essence, what Frederick Douglas was saying
is what slavery did was destroyed
the African-American family
connection to his ancestry lineage.
But this historic case has the ability
to not only recognize such lineage,
but the right one such lineage
of Ms. Lanier and her family.
And the final historical point, your honors
this case presents a case study of Massachusetts
complicated history with slavery.
On one hand, it has profited moderately
from the cotton trade, its most powerful institution
Harvard University has ties with slavery
that dates back centuries.
In fact the textile factories who were the largest donors
of the university help to build capitalistic empires
on the backs of enslaved Africans.
In fact, the institution of Harvard
and the institution of slavery was born in this country
a mere 17 years apart.
On the other hand, Massachusetts
is also the home of John Adams and it is not lost
on me or Ms. Lanier
that we're in the John Adams courthouse.
John Adams says slavery is the great and file stain
upon the North American Union.
Now to get the crux of the matter as we've all discussed.
Mr Koskoff so ably explain to the court property
is more than simply an object.
Property is a collection of individual rights.
It involves the delicate relationships
amongst individuals concerning a given resource.
And the resource we are discussing
here is not merely some image or some photographic negative
as suggested by Harvard,
instead we're discussing the culmination of a malicious
and evil scientific experiment in a torturous
conduct of slavery itself in an attempt to legitimize
the abhorrent concept that persons of color or property.
And this delicate relationship amongst individuals
is between Ms. Lanier, Renty in Delia's descendant
and Harvard University,
the entity who supported and funded
the wrongdoer professor Lewis Agassi,
even though they want to try to distinguish
him now, but it was Harvard who commissioned
him, who celebrated him and who perpetuated
him and who named buildings after him.
It's about the right of possessory interest,
the right to exert control over a specific property,
given Harvard the right to exert control
over these daguerreotypes
is given them the right to exert control
over a piece of evidence,
which represents the (indistinct)
of the inhumane and criminal acts against this black man
and his daughter 170 years ago.
-: If the daguerreotypes had been found,
say by the Boston Globe
in a drawer somehow in their building,
would you have a different argument?
You know what-
-: Well, we look at the creation of the daguerreotypes
themselves as been something that the court should consider.
The truth is this was a scientific experiment
with black human beings being used as lab rats.
It was not only a crime against humanity,
but it was a crime
in the laws of the State of Massachusetts.
So it is the creation of the daguerreotypes
themselves that are crime.
So Harvard, what have you believed
that they should have possession interests
above Ms. Lanier and all others
because they have this scholarship,
this academic proudness that they can disseminate
it to the world and they can educate
us on the science and the history of slavery
better than black people,
better than Ms. Lanier and who she chooses to associate
with the daguerreotypes of her family.
I often think about the (indistinct)
which is analogous to this.
When she received the artwork
back out there it had been taken from the Nazis
during the Holocaust,
I don't recall the argument coming
what would she do with the daguerreotypes?
And I think it's not proper to say,
what would Ms. Lanier do as if this black woman
could not work collaboratively with a museum
to be able to protect the 1st Amendment interests.
-: I am sorry if you misunderstood, my question
was not what will she do with them if she wins.
My question is what would your case...
How would your case differ if any?
If the daguerreotypes had been found in a drawer
of the Boston Globe?
-: Yes, ma'am your honor.
We would ask this court as we're doing today,
to give her the opportunity to go forward
before a jury to be able to prove her case,
why her possessory interest or greater and superior
to anybody else's this is a small us, when you think
of the scope of the great wrong that has been done.
All Tamara Lanier has asked to do from day one
is to be able to prove that that man and that woman
are her great, great, great grandparents.
And as Mr. Koskoff said she did it miraculously
painstakingly something that black people
were never supposed to be able to do because of slavery.
I hope that addressed your question, your honor.
-: Yes, so your position is that her rights
are superior to anybody else's rights
in this case though, Harvard is actually the wrongdoer
so should have no rights.
-: Yes ma'am, your honor.
-: How do we deal with the fact that she's one of I take
it many descendant?
-: Again your honor,
that is a matter that should not be manifested by Harvard.
That should be something that once it is proven
in a court of law before a jury,
then we can address that matter.
Ms. Lanier is fully aware that she understands
she is but one descendant of a Papa Renty and Delia,
but to let Harvard, I mean retained to the daguerreotypes
is like catching a thief red handed.
And the court allowed the thief to legally
keep possession of the property.
It would offend all concepts of equity and justice
to leave the daguerreotypes in Harvard's and clean hands.
I beseech this court to ask Harvard,
what is the basis of its possessory interest claim,
the basis of Harvard's right
to continue to exert control over this daguerreotypes
Harvard has been silent on this question,
just like the thief pointed fingers at everybody else
except themselves. -: But if we (indistinct)
I'm sorry to interrupt.
If we're trying to define what the property right
is here, I mean make sure that I understand
your definition of the property right
that your clients have.
If somebody is a victim of a despicable crime,
and if the person who took the photograph
of that despicable crime occurring,
what was complicit in the taking
of that photograph daguerreotype
as we have here, then the victim of the crime
retains ownership.
You have a photo (indistinct)
I'm sorry-
-: I think I understand your question
and I would put forth your honor,
this is a case not just about property rights.
It is also about possessory interests.
And when you think about that, you go back and you look
at the case law that says property
is a collection of individual rights,
determined by state law.
Part of the crucial rights are to the right to exclude
or the right to use,
it's not something that simply refers to the object itself.
And so when you look at this bundle of sticks
that has been often quoted Justice Sotomayor recently quoted
in Manhattan Community Access Corp versus Hallec.
And she quoted US v. Craft Supreme Court decision in 2002.
I wanna make reference to those to understand
the complicated nature of possessory interest
in why we feel we should be allowed to go forward
before a jury to argue that the possessory
rights as Ms. Lanier's descendants,
who were the victims of a heinous crime,
should be able to go forward.
And I hope that I further explain
that what we're asking for here today is not novel.
There is a precedent in the law,
and we have the legal vehicles to accomplish
the ends to write in this past wrong
and create in a more just future.
In this moment, the law through concepts
of replevin, conversion, equitable restitution
and prime aphasia tort provides this court
and this court profoundly with opportunities
to correct this grave and justice
'cause throughout this nation in the world
have you similar concepts to free society
from the heavy burden of an injustice
of a sin that has not yet been a toned.
As the court Atlas stated in 1871,
in the case of Walker v. Cronin,
one of the aims of the common law has always been to protect
every person against the wrong for acts
of every other person.
Harvard has kept Renty and Delia and slave for 170 years.
This court has the ability to finally free Renty and Delia
from bondage.
Renty and Delia were condemned in life as property
of their slave master.
We are besieging this court not to condemn
them in death to be the property of Harvard
for all eternity.
I conclude simply with this, the legal system found
ways to return the belongings of Japanese Americans
in turn and prison camps
or return of possessions taken from the Jews by the Nazis.
And that is time to return these to daguerreotypes
to Ms. Lanier and her family who descended
from these enslaved Africans.
This is not a case governed by limited legal pre-sale
that a subject of a photograph has no property interest
in such a photograph.
More over this court,
and this court most profoundly has the power to provide
Ms. Lanier simply with the opportunity
to be able to prove that she has a superior
possessory interest over Harvard.
And I would suggest your honors her request to go forward
and have an opportunity to prove her case
before a jury is quite small
in the scope of such a great wrong
Thank your honor.
-: Thank you.
-: Okay, Attorney Anton Metlitsky.
-: Thank you, your honor.
May it please the court I'm Anton Metlitsky for Harvard,
along with my colleague Victoria Steinberg,
I wanna make clear at the outset that no one here disputes
the grave evils of slavery
or that Louis Agassi's scientific
theories of white supremacy were abhorrent.
And certainly no one hears this disputes
that Renty and Delia were treated unconscionably.
And it's more than clear that the daguerreotypes
issue were produced in utterly egregious circumstances.
-: What is Harvard's possessory interest
in these daguerreotypes types
and where does it stem from?
-: Well, so I don't think that question is clear from...
The answer to that question is clear from the complaint
they alleged Harvard doesn't. -: Then why does this case
go back to determine who has the superior right
is your opposing counsel has done.
-: Because the plaintiff's claims all turn on the proposition
that she has a possessory interest or a property interest
in these daguerreotypes.
So it doesn't...
Harvard's possessory interest as to the threshold question
of whether she can bring these claims doesn't matter.
It's somebody can't, go ahead
I'm sorry (indistinct).
-: And I'm just curious and listening?
-: Oh, okay.
So somebody can't bring a conversion action
to get damages or replevin action
to (indistinct) somebody else's property.
But it just doesn't matter- -: So you're suggesting
maybe she's just called it the wrong thing.
What we really need is an interpleader action
to say whose rights are superior here.
-: Well, if she followed that kind of action,
I don't think it would make a difference
because I think the threshold question
is just whether there is a property interest
in the subjects of a photograph.
If the answer to that question-
-: Wait, wait, wait-
-: That's important- -: Let's not frame it that way.
-: That is important right?
Because if what they're saying is in these awful
circumstances where you're performing
in the words of Mr. Crump
and it legitimate scientific racist experiment,
should Harvard get to keep the pictures.
I understand they've got some difficult arguments
to make, to explain their property interests,
but your simple point that just 'cause you have a...
You're the photographer you get to keep the picture,
there are exceptions to that rule.
If you kidnap somebody and take half naked pictures
of them you don't get to keep the pictures.
You take pictures of a child naked, that's a crime.
You don't get to keep the pictures,
so there are limits on your possessory interests
if it arises out of criminal or tortious behavior, right?
-: Absolutely right.
And so I think it's important to distinguish
between two different questions.
One is what are the legal routes
to take away, let's say photographs from a wrongdoer.
So your example,
the answer would be I think a criminal action.
It would happen through the criminal process
the police would arrest the person.
They would take away the photographs.
The claims here are very different
because the argument is that what is done by operation
of law is a property right
was vested in the subject of the photograph
and the consequence of that is it's not a property right
just against the wrongdoer and by the way obviously
we disagree that Harvard is a wrongdoer
here, but not on the pleadings with except-
-: Will the child pornographer
have a property right in the photographs?
-: Well, not in any way that matters
because the child pornographer would be arrested
and the property would be taken
away from the child pornographer
by operation of law property.
-: But to whose property is that?
-: So I'm not sure whose , it would...
I think it would end up being the state's property,
but the issue here is that the kind of claim
that they're bringing,
that the plaintiff is bringing
requires vesting of property right
in the subject of the photograph
and that means it's a property right
not just against the wrongdoer
but as against the world.
-: All right lets stop (indistinct).
-: The argument...
I'm sorry go ahead.
(chuckles)
-: All right you're talking about it only as a photograph
and what we're actually dealing with are photographs
of an object that can't be replicated.
The object, I'm concerned about the object.
Right now for this argument,
I don't wanna talk about the photographs
just about the object.
Are you disagreeing that human beings
have an inherent property right in their body?
-: Of course not.
-: Correct and so with that in mind,
there's no question that this was done under circumstances
that at least in Massachusetts at the time were illegal
even we don't even have to look to today
and so today's different then in Massachusetts, not right.
So why isn't this a fruit or an instrumentality
of the crime?
-: Well I mean, first of all there's absolutely no crush
question that Renty and Delia were subject to crimes
and worse than crimes that I think the question
now is what is the remedy for that?
And the main question is whether it's a judicial remedy
based in property,
it seems to me that there are very important interests
on each side here.
And if there is a way to resolve
those interests to balance the interest
for example of the public in viewing
these kinds of photos and not just of enslaved people,
but of Holocaust victims of the Abu Ghraib victims
and the like versus descendants of enslaved people,
Holocaust victims, and the like
that's a legislative function. -: But you're controlling,
we have a tougher issue
which is whether you or they get to control that image.
'Cause that's the problem is it's not so clear
in these really horrible circumstances,
what your property rights are.
I get your arguments that their property rights
require some very novel conversion of old torts
into new property rights.
But I don't fully get Mr. Crump's question
to you, which is what are your possessory rights
'cause that seems much more difficult.
-: And your honor, this is on the pleadings.
And so I can't actually answer that.
-: But you know that's a good point,
it is on the pleadings.
So why does...
I don't understand well,
I read the judge's decision
and he does not buy the property rights argument
that was advanced.
But if there's any plausible,
all they need is a plausibly suggest
entitlement to relief.
Why wouldn't this rise to that level?
-: Well because I think-
-: It's not high level.
-: No it's not in the sense of so long
you have to take the complaint in the light
most favorable to the plaintiff.
And you have to acknowledge that all the facts
are true for purposes of deciding a motion to dismiss.
And we acknowledge all of that.
But if you take all of that and still if everything is true
there wouldn't be at law a claim,
then the claim should be dismissed,
which is what I think the judge had found below-
-: They submit all these factual allegations.
They don't have to define their legal theory
to survive a motion to dismiss that precisely, right?
-: It doesn't have to be-
-: And they're basically another way of reading
their complaint is no we don't know who has possession
of these daguerreotypes given the awful circumstances
in which they were created,
we should have a trial and sort that out.
-: Well I think what they're saying
is we should have a trial to sort out.
-: And they're saying, okay we're descendant,
I'm one descendant and you're Harvard,
you're the employer of the wrongdoer.
So in between the employer of the wrongdoer
and one descendant that's tricky who has the right
to this daguerreotype.
'Cause it is a piece of property,
the daguerreotype is a tangible piece of personal property.
-: It is but again and I'm sorry if I'm repeating myself,
the claims here such as conversion
and and replevin require-
-: I agree that that's a problem
for them 'cause you need a property interest
to establish- -: Exactly.
-: Even if right to it being restored
but they are saying something a little more complicated,
which is what's your right.
-: And I think that if the court
thought that they plausibly...
That the plaintiff plausibly had a property right, right?
A judiciary recognized property right
I think we could have that.
-: Let me say, I accept your point,
but they're saying, what's your property right?
'Cause the court is they're saying we have a right
to this, you're saying you have a right to it.
Their right is not so obvious,
but neither is yours based on these really terrible
circumstances of the origin of the daguerreotype.
-: Right and we of course acknowledged
the terrible circumstances of the (indistinct).
-: You acknowledge, those factual circumstances
and the cases you rely on, I'm not saying they're useless
but they're different.
-: Of course they are certainly different.
But I do think that what would not be different
is a case brought by the descendant of somebody
who was pictured in one of Dr. Mengele's photo.
-: But why don't you state what you believe
you are clients' property right is to this.
-: So again your honor
that would have to...
So I think that the general principle
is the property interest belongs
to the photographer unless it's taken
away from the photographer under a criminal proceeding
or something like that, right?
-: But this is something like that.
-: But that's the thing
it's not something like that.
It's the claim here and I think Mr. Crump acknowledged
that if this claim was brought by the Boston Globe,
it would be exactly the same.
Because what they're asking
for is a property interest
which means an interest against the world.
-: But if you don't have a property interest
you can define maybe a client should be finding
an interpleader action.
The issue as they've defined
it as I understand it is that when you have a person
who's been, I'll say photograph
instead of daguerreotype for ease.
If you have somebody in there's a photograph
and that photograph has been taken in circumstances
that constituted a despicable crime
that the photographer or anyone complicit
in the taking of that photograph
does not have ownership of that photograph.
-: Well that may be their argument,
but again and I'm just repeating myself,
even if they're right about that argument,
it seems to me that the claims have to be these claims,
just these particular client claims,
which are based on common law property rights
have to be dismissed because they're necessary precondition
for each one of them is that the plaintiff
have a property right.
Harvard's property right
at this point I don't think matters
and if you disagreed with us on the first question
and you disagreed with us on the statute of limitations
then there might have to be a fight in court
about who has better title for lack of a better phrase.
But I think the argument
here is that you never have to engage
in that kind of determination because the plaintiff
just as a matter of law.
-: But the product of that is that you get to retain
the possession and we're not sure that you have the right
to it either.
I take it you're right Peabody Essex Museum
discovered this from their vault 40 years ago.
And because they've held it for 40 years,
they're sort of...
I guess Peabody Essex Museum owns it.
-: I mean I think that would be one of the arguments
that would probably make.
-: But that doesn't deal with the fact
that the creation of it comes
out of this sort of horrible situation.
And we don't have cases that tell
us what to do at least no one...
You've not, no one's pointed
us to what to do about this object
'cause it's a little different from child porn.
It's not a crime the daguerreotype
it's the criminal circumstances creating it.
-: Right, I think you're right
that we don't have cases directly on point.
We do have cases that are somewhat analogous
and they all, I think-
-: Seem to be very analogous
'cause they're all cases in which a reporter
is following a police officer into occasion.
But the rule that you encapsulate,
which is that a photographer has the right to the photo.
I think it's too simple.
It's just it's more complicated-
-: Well I think maybe the question
is again I'm sorry to say this again, but the question
I think at this stage because if the plaintiff
is bringing property (indistinct)
isn't who has the right to the photo
but whether the plaintiff does (indistinct).
-: Just wait, just so I understand,
you're saying that you don't have, Harvard
doesn't have to prove anything because they've got it.
And the plaintiffs haven't proven
that they've got a right to go forward
because the motion to dismiss has been granted
and so it's over?
-: Well your honor again I think Harvard,
there would be a dispute
about that if there were...
If the court recognized the property right
in the plaintiffs.
-: Let me ask you a question about the property right.
-: Sure.
-: And that is that as I read the judge's decision,
he looked at the counts
and he broke them down into the counts
were related to property.
And basically he ended up saying that he basically
when you look at his reasoning
it is all based on photography.
That's what his cases are and he's finding the subject
has no interest in photography,
but my suggestion or question
is what if we don't look at it that way?
What if we look at the daguerreotype as an object,
why doesn't that change the analysis?
-: Well, I think some of the cases are about negatives too.
And I think the reason
it doesn't is because going forward I mean
obviously the court has to think about what the consequences
of the rule that it adopts is.
And as the media organizations brief explains,
there will be a significant disincentive to museums,
news organizations and the like of displaying to the public.
Some of the most important images of-
-: Well council there are a lot,
there are systems in place for re prey repatriating
remains for native Americans and their objects,
why would should there not be...
Unfortunately don't have something in place
through Congress to do that for African-Americans
and descendants.
Go ahead.
-: I'm sorry.
So that's...
I'm very glad you raised that, your honor,
because I'm not saying there shouldn't be.
I'm saying that if there were, and there may well be good
reasons to do something like
that it would be a legislative function.
If you look at the law that you're talking
about is that Native American Graves Protection
and Repatriation Act of 1990
it's 13 sections in the US code many, many sub sections
30 pages of department of interior regulations
because these things are so...
These questions are so complicated.
You have to weigh various rights
of various stakeholders against each other.
-: But do you know are there any other things similar
to the native American one?
-: I'm not aware of any but I think
there are probably good reasons to have similar.
There may be, I'm not a lobbyist
but I'm not lobbying anybody,
but they're probably good reasons
to have those kinds of regulatory schemes
not just limited to native Americans.
But they're so sort of inherently legislative
and the judicial tools are so blunt, right?
You are, there's either a property right
or there isn't that seems to me that that is one reason
that courts have never recognized this kind of right.
I see that my time is-
-: But why can't I (indistinct)
the complaint in the light most favorable to the plaintiff
as calling for an interpleader action.
That is there is property
and Harvard as the joint tortfeasor
doesn't have a right to it.
I want it because it's my ancestors.
And there may be others like the family of the professor
who submitted an (indistinct) suggest to Harvard
yeah return these to the ancestors.
So maybe I construe this as an interpleader
and they intervene in the action as an interested party.
-: I mean I'm not sure how you could construe
the complaint that way- -: Why not because I'm supposed
to construe the complaint,
not by the little counts that are set forth,
but just broadly, does it plausibly suggest an action?
-: I don't think it plausibly suggests
an interpreter action- -: Not an interpreter.
-: Not an interpleader action.
I mean that I think it plausibly suggests
of an action why the plaintiff against Harvard,
but your honor I just wanna make sure
that I have time to talk about the statute of limitations
argument, because-
-: Well I'd rather so you fully address my question.
Why can't I- -: Oh, I'm sorry.
-: I thought the four corners of the complaint
and say this is possibly suggesting
that Harvard doesn't own it, I want it.
And there may be others, it's an interpleader action.
-: It just, I mean I don't know what to say
other than it wasn't pleaded
as an interpleader action- -: But you're saying
we confirm the dismissal and she can refile,
it's an interpleader, perhaps.
-: Well I don't know if she could...
I don't think she could refile
because of the statute of limitations,
but also I'm not sure how Estoppel rules would work
in that case because that just wasn't the way
this was pleaded.
And even if it was, I'm not sure how an interpleader action
helps if the plaintiff herself can establish
a property right.
Maybe the argument is that other people
can but she would still be the plaintiff
in an interpleader action I think it seems to me.
I don't know if I answered.
-: Your property it's been stolen
or there's property out there.
It doesn't belong to whoever's holding it.
You can't do anything about it-
-: No, you can but if you bring an interpleader
I think, this was not an issue in this case
before, but I think that if you bring
an interpleader action,
you can be dismissed from that interpleader action
if it's clear on the face of the pleadings
that you don't have a property right, right?
I think that's how that would be resolved.
-: But between the different people
who would have a right there really is only Harvard
Peabody Essex, potentially the heirs of the photographer
and the descendants, right?
There's not anyone else out there unless somebody
gives some title.
I mean like Nazi artwork, someone owned the picture,
They sold it, but there were compelled
sales of these things.
So you undo those transactions.
We don't have that kind of issue here.
We have an...
The question is, does Harvard get to retain
this in those circumstances
or does one of the other potential people connected to this?
-: And so your honor,
I think you would just have to reconceptualize
the whole complaint to get there.
Because it seems to me that the complaint
was filed as a property right
depending on a property right on behalf of the-
-: (indistinct) standing, she has to somehow devise
her connection to this and why she has a legal right
to it, right?
Whether-
-: I would think.
-: And standing as a lower bar
to get over then actually winning this thing.
-: I don't think it's a standing argument.
I mean I don't think it's a standing argument.
I think it's an argument
about whether there would be a claim stated,
but if I could just get to the...
If I could, unless the court has further questions
on this, I just wanna make sure I have a little time
to talk about the statute of limitations,
because your honor mentioned the discovery rule,
which is that the statute of limitations starts running
on the date when a plaintiff discovers or any earlier date,
when she should reasonably have discovered
that she's been harmed or may have been harmed
by a defendant's conduct.
And in this case, the complaint itself incorporates
a letter from Ms. Lanier to Harvard
that she attached to her opposition brief.
And this is a letter from 2011 that says I have historical
and US census information confirming
that these two slaves are in fact my ancestors.
And it seems to me that the discovery rule obviously turns
on the nature of the case that you're pleading.
And the nature of the case that Ms. Lanier
is pleading, as I think was confirmed-
-: Right and the nature of (indistinct) case
one at least part of it is replevin,
which requires the demand in a response before it, right?
-: No it only requires a demand or response
and this is a quote from this court's case
in Atlantic financial, if the defendant's assumption,
of dominion over the property was it doesn't require
a demand or response when the defendant's assumption
or dominion over the property
was wrongful from the beginning and their claim
of course you have to read the complaint
in the light most favorable to them.
And their claim is that Harvard's possession
was wrongful from the beginning
now, of course we disagree with that but-
-: What about the back and forth
about whether she is an ancestor?
So Harvard wants proof that she isn't .
I don't know why they wanted it, if I'm not sure
why they wanted if their view is you don't get it anyway.
But is there some potential discovery rule issue
related to the fact that Harvard
think show me you're the ancestor.
It's very difficult for the reasons
you're posing counsel say for a slave
to prove their ancestry
a former slave that descend to connect ancestry to a slave.
So does that give them some tolling
under the discovery rule
because it's such a difficult question
to establish ancestry.
-: So a few points first for purposes
of this, I just wanna make clear
maybe it's not responsive to your question,
but for purposes of this proceeding
we're not disputing Ms. Lanier's descendants-
-: But I'm saying that Harvard didn't...
Harvard made that an issue at one point, right?
There's some back and forth between Ms. Lanier and Harvard
about whether she's given proof of her ancestry, right?
-: There is some back and forth.
There's a 2014...
There's an article published in a newspaper
in the plaintiff's hometown about the plaintiff in 2014.
And there's a quote in that newspaper article
from the Peabody Museum that the quote
is she's given us nothing that directly connects
her ancestors to the person in our photograph.
And then it goes on and she claims she has more evidence,
but we haven't seen it.
I think that's what your, your honor is referring to.
So that is true, that happened.
And I just wanna say this isn't in the record,
but I think-
-: But isn't there some allegation...
Again I don't remember the complainant detailed
but isn't there some suggestion in the complaint
that she was led on by Harvard on this ancestry issue.
And therefore again not saying it's true,
I'm just saying that it's the motion
to dismiss where we assume everything she says is true.
-: Right, okay I think I understand the question.
So I read you the quote from her letter to Harvard,
where she says that she has information
that Renty and Delia are in fact her ancestors.
And I think for purposes of the discovery rule,
that is a definitive statement
you don't need a definitive statement
for the discovery rule, but that is one.
Right now I think the plaintiff argues
that she was led on after that point
I'm not totally sure what the basis for that is.
But again, in the record, the 2014 article,
I just read you 2014 article was a public pronouncement
that Harvard did not think that the information
she provided established the ancestry
and so even if you needed something
like that you know that by 2014,
there was a public statement by Harvard rejecting the claim.
And so at least by 2014,
the statute of limitations must have started running
if not in 2011.
That's the reason we went back and forth
on that in the briefing.
-: Okay thank you.
-: Thank you very much your honors.
Man: All arise.
(indistinct)