Race Nuisance: The Politics of Law in the Jim Crow Era

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 allegiance to precedent and the white plaintiffs’ pursuit of racial exclusivity. Surprisingly to many in the academy, 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. 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. The article also derives important insights into the present from the race-nuisance and related cases. These insights offer both optimism for those concerned about racial liberation, but also realism about the limits of the law. First, common law doctrine may be a potentially powerful vehicle for people of color and other disenfranchised groups since courts in the United States do not lightly disassociate themselves from common law precedent or operative legal norms and ideals. Second, the fact that white interests are not as monolithic as often presumed offers potential for strategic alliances that may significantly influence opportunities for success – both legal and political. Lastly, and less hopefully, legal norms do not easily and always translate into social practice. Any hope for lasting change will be accomplished only by social and political movements

Second Generation Environmental Justice: Challenges and Opportunities

Presenter: Rachel D. Godsil, Professor of Law, Seton Hall Law School 3 pages

Remedying Environmental Racism

This Note addresses the equity issues that arise in the placement of commercial hazardous waste facilities. Currently, minorities are shouldering an unequal share of the burdens of hazardous waste16 while the benefits of production that results in hazardous waste are dispersed throughout society. Studies demonstrate that poor whites are overburdened as well. While inequitable distribution of wastesites along class lines is troubling and deserving of attention, this Note focuses specifically on the burdens facing racial minorities. This Note contends that all races should share equitably the burdens and risks of hazardous waste facilities. Part I documents the disproportionate burden of hazardous waste sites upon minorities and suggests causes of that disproportionality. Part II examines the current federal and state legislation regulating hazardous waste siting. It determines that state hazardous waste management programs fail to address possible environmental racism. Part III discusses the potential for using section 1983 of the Civil Rights Act of 1866 and the Equal Protection Clause of the Fourteenth Amendment to challenge a state\u27s ability to site facilities that will disparately burden minorities. It argues that in cases where flagrant disparities exist between the environmental burden imposed on minority communities relative to white communities, a constitutional remedy may be successful. Part III, however, concludes that this remedy is insufficient because most plaintiffs will not be able to prove that a state harbored discriminatory purpose, and therefore will not prevail under section 1983 or the Fourteenth Amendment. Part IV proposes a potential Act of Congress, patterned after a provision of the Civil Rights Act of 1990, in conjunction with an amendment to current federal legislation and model state legislation, to ameliorate the disparate burden of hazardous waste siting on minorities

Race Nuisance: The Politics of Law in the Jim Crow Era

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\u27s interest convergence. While new formalists may at first see these cases as supportive of their claims, the Article illustrates the limitations of formalism\u27s 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\u27 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 perio

America\u27s Misunderstood Welfare State: Persistent Myths, Enduring Realities

A Review of America\u27s Misunderstood Welfare State: Persistent Myths, Enduring Realities by Theodore R. Marmor, Jerry L. Mashaw, and Philip L. Harve

Telling Our Own Story: The Role of Narrative in Racial Healing

An important resource for leaders and practitioners working to overcome our nation's legacy of racism. The authors present the power of the narrative and its important role in racial healing

The New Tipping Point: Disruptive Politics and Habituating Equality

This Essay argues that the events of 2020 opened a window of political opportunity to implement policies aimed at dismantling structural injustice and systemic racism. Building on the work of philosopher Charles Mills and political scientist Clarissa Rile Hayward, we argue that the Black Lives Matter Movement constituted the “disruptive politics” necessary to shift dispositions of many in the United States toward racial equity by interrupting the white “epistemologies of ignorance.” Moreover, because policies that correct structural injustice are beneficial for people across race, even those whose hearts and minds remained closed may embrace legislative policies that function to dismantle systemic racism. As people become habituated to structures that facilitate equality and the policies that underlie them, the United States will finally begin to tip toward equality and a society of belonging