Posted by Ilya Somin:
Property, Judicial Power, and Minority Rights:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1154227928
I recently read Seton Hall law professor Rachel Godsil's excellent
forthcoming Michigan Law Review article [1]"Race Nuisance: The
Politics of Law in the Jim Crow Era." An excerpt from the 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.
As Professor Godsil notes in the body of the article, her analysis has
important elements in common with arguments that co-blogger David
Bernstein and I advanced in a 2004 Yale Law Journal [2]review essay in
: that judicial power can sometimes protect minority rights even in
the face of widespread societal prejudice, and that protection of
property rights will often benefit discriminated against racial and
ethnic groups. Of course, Godsil also takes issue with some of our
points. For example, she suggests that the Supreme Court's 1917
invalidation of residential segregation laws in Buchanan v. Warley was
not as "remarkable" a departure from the racist norms of the era as we
suggest, given southern state courts' reluctance to rule in favor of
whites who sought to expel blacks from their neighborhoods by filing
"race-nuisance" claims. This point is in tension with the fact that
three southern state supreme courts upheld the constitutionality of
racial segregation laws prior to Buchanan, while others concluded that
they might be acceptable under some circumstances, as Godsil herself
notes elsewhere in the piece. Be that as it may, Godsil's piece is an
important contribution to the literature on judicial power, property,
and minority rights, and of course I'm happy with anything that
increases my citation count!
Finally, it is amusing to note that Godsil at one point cites me as
"Sonia Somin." Perhaps she is confusing me with my mother, Sofya
Somin. Or maybe my gender identity crisis has still not been resolved,
despite [3]Eugene Volokh's heroic efforts.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=914196
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=620781
3. http://www.volokh.com/posts/1144122273.shtml
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
