Race nuisance: the politics of law in the Jim Crow era.

• Author: Godsil, Rachel D.

This Article explores a startling and previously unnoticed line of cases in which state courts in the Jim Crow era 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 the Jim Crow 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 allegiances to both precedent and the pursuit of racial exclusivity. Surprisingly, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory's interest convergence. While new formalists may at first see these cases as supportive of their claims, the Article illustrates the limitations of formalism's reach by also exploring the related line of racially restrictive covenant cases. Similarly, while interest convergence scholars might attempt to read many of the cases as supporting 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 is therefore a useful way to explain unexpected outcomes but not 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 verify 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.

TABLE OF CONTENTS INTRODUCTION I. RACE AND NUISANCE IN THE COURTS A. Overview of Nuisance Doctrine B. The Mere Presence of a Black Family Is Not a Nuisance C. Mixed Results in Conduct Cases 1. Churches 2. Funeral Homes and Cemeteries 3. Hospitals, Sanatoriums, and Orphanages 4. Places of Amusement 5. Crowded Housing II. THEORIES AND COUNTER-THEORIES A. State Courts Furthering White Supremacy B. Reflexive Formalism in Operation ? C. A Race Neutrality Ideal at Work? D. Formalism and Equal Treatment Reconsidered-- Racial Zoning and Restrictive Covenants 1. Racial Zoning 2. Racially Restrictive Covenants E. Interest Convergence: Race Nuisance and Segregation 1. Protecting the Rights of White Property Owners F. Racialized Nuisance Doctrine--Was Nuisance a "White Thing" ? III. RACE NUISANCE AND RACIAL LIBERATION-- INSIGHTS INTO THE PRESENT CONCLUSION INTRODUCTION

In 1883, a white family brought a lawsuit in state court claiming that a black family moving in next door would be a nuisance. The case, Falloon v. Schilling, was appealed to the Kansas Supreme Court, which issued a unanimous decision. (1) This decision was immediately reflected in nuisance treatises, which were then instructive for twenty-eight more such cases brought during the "Jim Crow" (2) era. Most of these "race-nuisance" cases were brought in the South, including Louisiana, Mississippi, Texas, and Tennessee, but a few were brought in the North as well. When I recount this history to my students, other law professors, and even nonlawyers, the vast majority assume that I am describing yet another instance of racist state courts warping doctrine in favor of white supremacy. But the outcomes of these cases surprise my listeners: in most of them, the white plaintiffs lost. (3)

Many current scholars presume that Jim Crow courts eschewed the rule of law, openly treating black people as unworthy of legal protection. (4) Articles addressing Jim Crow describe countless incidents of state courts' differential treatment of blacks, and many court opinions contain blatantly racist language. Needless to say, the Jim Crow era was replete with such behavior. However, the race-nuisance cases complicate this monochromatic picture. These cases show southern judges wrestling with their competing allegiances to precedent and the pursuit of racial exclusivity. (5)

The judges in race-nuisance cases did not reflexively and consistently rule against black people. This Article explores multiple legal theories in search of an explanation for this anomaly: legal formalism, (6) property theory, (7) and critical race theory. (8) Each sheds light on aspects of judicial decision-making in these cases, but ultimately none satisfactorily explains the entire picture.

My goal in this Article is, to use Randall Kennedy's words, "to confront the full, complicated vastness" (9) of this particular history. The value of these cases lies in their details and specificity. They allow us to critique and complicate the one-size-fits-all theories so common in legal scholarship. (10)

A "new formalist" might use these cases as evidence of both the normative value and the prevalence of formalist decision-making, claiming that the cases are purely a result of southern state court judges yielding to precedent. I argue, however, that the race-nuisance cases cannot be fully explained by formalist decision-making and, more significantly, that related cases concerning racial zoning and the enforceability of racially restrictive covenants show the limits to formalism in racially charged cases.

State courts were split on the constitutionality of racial zoning, and all southern courts and most northern courts with significant black populations enforced restrictive covenants. (11) In other words, during the same period in which courts were adhering to nuisance precedent by ruling against efforts to exclude black families or institutions from white neighborhoods, courts were also twisting precedent to uphold the enforceability of racially restrictive covenants. The challenge for formalism is to explain the difference between these two sets of cases.

Some scholars have suggested that our national commitment to property rights dictated the outcome of property disputes even when race was involved. The problem with this argument is that in most property disputes, both parties will have a property interest at stake. In the nuisance context, the plaintiff is seeking to protect her interest in her enjoyment of her land, while the defendant is defending his use of his land. Both are "sticks" in the property "bundle." Similarly, in racially restrictive covenant cases, the plaintiff is a property owner with an interest in enforcing a covenant that presumably bolsters her property value, while the defendant is a current or prospective property owner seeking the right to alienate or purchase property.

Property theory is more enlightening. Recent scholarship reasserting a natural-law theory of property suggests that in the pre-twentieth century legal regime, a physical-invasion theory of property created a strong presumption in favor of free use of land unless it resulted in a physical invasion of another's property. (12) There were, however, many court-created exceptions to this principle, including ones for funeral homes, "bawdy" houses, and certain other uses that did not cause a physical invasion of another's land, but upset certain norms of order and morality. It was certainly conceivable that race might have become one of those exceptions.

Critical race theory, on the other hand, would explain these decisions by looking for the white interest that they were maximizing despite appearing to favor people of color. One variant of this claim is Derrick Bell's well-known theory of interest convergence. (13) This story plays out in the race-nuisance cases because a number of them may have actually buttressed segregation by facilitating the existence of separate institutions for blacks. Very few of the race-nuisance cases challenged the architecture of segregation. Rather, most of the cases were brought by white landowners seeking either to exclude segregated black institutions from their neighborhoods, (14) or to prevent a white family from housing black servants on the family's property. (15) Only a few cases were brought by whites trying to exclude individual blacks of equal socioeconomic status from white neighborhoods. (16) Segregated institutions had to be located somewhere for a segregated society to exist, and the small black enclaves may not have been big enough for cemeteries, hospitals, parks, and sanatoriums. Therefore, the race-nuisance cases in which white plaintiffs were unsuccessful may simply have been instances in which the interests of a small number of white landowners were sacrificed for the preservation of racial segregation.

However, this theory does not explain all the cases. Several of the cases simply cannot be ascribed to the fulfillment of white supremacy--a black funeral director permitted to move into a wealthy white Memphis neighborhood, a black man dispensing medicine without a license to whites and blacks alike. (17) Ascribing these outcomes to white interest ultimately undercuts interest convergence as a theory because it appears to support either conclusion. Moreover, this understanding of the theory eliminates any agency on the part of the black litigants.

A close read of these cases also complicates application of the interest convergence theory by showing the impossibility of identifying a universal or monolithic "white" interest--in other words, a particular outcome may help one group of whites and harm another. Solving this tension by concluding that the courts consistently handed upper-class whites victory over lower-class whites may explain some cases, for example those in which white people challenged other white people's attempts to house black servants on their property. But it does not explain them all. (18) Is the dominant class the developer seeking the right to sell to whoever would purchase, or the developer...