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’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.