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.


Legal History

Date of this Version

March 2006