Monday, July 24, 2006
This has been a great year for legal history in major law journals: Ken Mack's brilliant study of African American lawyers in the years leading into Brown in the Yale Law Journal and Susanna Blumenthal's study of moral philosophy and the treatment of testamentary intent in antebellum wills ("The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America") in the Harvard Law Review come immediately to mind. And now comes news that Rachel Godsil's important paper, Race Nuisance: The Politics of Law in the Jim Crow Era, will appear in the December 2006 issue of the Michigan Law Review. (You may already have read Godsil's important article, Viewing the Cathedral from Behind the Color Line: Property Rule, Liability Rules, and Environmental Racism, in the Emory Law Journal in 2004.)
Here is her abstract:
This article explores a line of cases in the Jim Crow era in which courts ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These “race-nuisance” cases complicate the view of most legal scholarship that state courts during this era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiance to precedent and the white plaintiffs' pursuit of racial exclusivity. Surprisingly to many, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory's interest convergence. While superficially supportive, the article illustrates the limitations of formalism's reach by also exploring the related line of racially restrictive covenant cases. Similarly, while many of the cases appear to support white property owners' interests, this article demonstrates that the race-nuisance cases are better understood as demonstrating that white interests are multi-faceted. Interest convergence therefore may explain unexpected outcomes but is unlikely to predict such outcomes. Another line of inquiry raised by the cases is whether courts racialized nuisance doctrine by marking as nuisance conduct associated with Blacks and rewarding Blacks who adhered to white norms. The first claim is impossible to know with any certainty – and the second embraces gross oversimplifications of racial group behaviors. In sum, the article casts substantial doubt on the background assumptions about the way law worked during the Jim Crow era, and thus provides a more textured understanding of that period. However, the article also grapples with the reality that legal norms do not easily translate into social practice.
"Race Nuisance" asks why, in the era of Jim Crow, did courts uniformly reject claims that African Americans moving into a neighborhood might constitute a nuisance. Pretty interesting stuff here. No one should take this as evidence--and Godsil's careful to avoid arguging this--that the courts offered anything approaching justice to African Americans. But her paper raises important questions about how "fair" courts were. There was a willingness--indeed, I suspect that is constitutionally mandated--to apply formal rules of equality. A person's race can't constitute a status that makes one unequal in formal terms. Of course, courts frequently embraced the idea of separation in public. But what I find interesting is that there's an early Kansas case (from the early Jim Crow period) which set the standard for rejection of race as nuisance. So I think the early precedent was helpful. And then by the middle of the 1910s, when the cases start coming with some frequency, the courts are demanding at least some kind of basic fairness at the formal level. I think of Guinn v. Oklahoma, McCabe v. Atchison, Topeka Railway, and Buchanan v. Warley here. Moreover, as Godsil points out, some of the cases though rejecting race as a category that might constitute a nuisance still find nuisance in a racialized context. I think my favorite along those lines is an African American church in South Carolina that is enjoined on the grounds that the worshippers make too much noise.
There's much to think about here. Of course, this reminds me of Randall Kennedy's very important essay in the 1986 Columbia Law Review on the White Court. I hope you'll read Godsil's article. I think you'll be hearing a lot about it in the future and I know you'll enjoy it very much. Also, you might incorporate some of her article into your property class. As Larry Solum says, download it while it's hot.
Alfred L. Brophy
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