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Full-Text Articles in Law and Race
Race Nuisance: The Politics Of Law In The Jim Crow Era, Rachel D. Godsil
Race Nuisance: The Politics Of Law In The Jim Crow Era, Rachel D. Godsil
Michigan Law Review
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 …
What's Wrong With Our Talk About Race? On History, Particularity, And Affirmative Action, James Boyd White
What's Wrong With Our Talk About Race? On History, Particularity, And Affirmative Action, James Boyd White
Michigan Law Review
One of the striking and original achievements of the Michigan Law Review in its first century was the publication in 1989 of a Symposium entitled Legal Storytelling. Organized by the remarkable editor-in-chief, Kevin Kennedy - who tragically died not long after his graduation - the Symposium not only brought an important topic to the forefront of legal thinking, it did so in an extraordinarily interesting way. For this was not a mere collection of papers; the authors met in small editorial groups to discuss their work in detail, and as a result the whole project has a remarkable coherence and …
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
Michigan Law Review
The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …
Caste, Class, And Equal Citizenship, William E. Forbath
Caste, Class, And Equal Citizenship, William E. Forbath
Michigan Law Review
There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …
The Devil And The One Drop Rule: Racial Categories, African Americans, And The U.S. Census, Christine B. Hickman
The Devil And The One Drop Rule: Racial Categories, African Americans, And The U.S. Census, Christine B. Hickman
Michigan Law Review
For generations, the boundaries of the African-American race have been formed by a rule, informally known as the "one drop rule," which, in its colloquial definition, provides that one drop of Black blood makes a person Black. In more formal, sociological circles, the rule is known as a form of "hypodescent" and its meaning remains basically the same: anyone with a known Black ancestor is considered Black. Over the generations, this rule has not only shaped countless lives, it has created the African-American race as we know it today, and it has defined not just the history of this race …
Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein
Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein
Michigan Law Review
In this essay I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for the …
The Fourteenth Amendment Reconsidered, The Segregation Question, Alfred H. Kelly
The Fourteenth Amendment Reconsidered, The Segregation Question, Alfred H. Kelly
Michigan Law Review
Some sixty years ago in Plessy v. Ferguson the Supreme Court of the United States adopted the now celebrated "separate but equal" doctrine as a constitutional guidepost for state segregation statutes. Justice Brown's opinion declared that state statutes imposing racial segregation did not violate the Fourteenth Amendment, provided only that the statute in question guaranteed equal facilities for the two races. Brown's argument rested on a historical theory of the intent, although he offered no evidence to support it. "The object of the amendment," he said, "was undoubtedly to enforce the absolute equality of the two races before the law, …