Property, Judicial Power, and Minority Rights:

I recently read Seton Hall law professor Rachel Godsil's excellent forthcoming Michigan Law Review article "Race Nuisance: The Politics of Law in the Jim Crow Era." An excerpt from the abstract:

This article explores a line of cases in the Jim Crow era in which courts 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 this 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, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory's interest convergence. While superficially supportive, the article illustrates the limitations of formalism's reach by also exploring the related line of racially restrictive covenant cases. Similarly, while many of the cases appear to support white property owners' interests, this article demonstrates that the race-nuisance cases are better understood as demonstrating that white interests are multi-faceted.

As Professor Godsil notes in the body of the article, her analysis has important elements in common with arguments that co-blogger David Bernstein and I advanced in a 2004 Yale Law Journal review essay : that judicial power can sometimes protect minority rights even in the face of widespread societal prejudice, and that protection of property rights will often benefit unpopular racial and ethnic groups. Of course, Godsil also takes issue with some of our points. For example, she suggests that the Supreme Court's 1917 invalidation of residential segregation laws in Buchanan v. Warley was not as "remarkable" a departure from the racist norms of the era as we suggest, given southern state courts' reluctance to rule in favor of whites who sought to expel blacks from their neighborhoods by filing "race-nuisance" claims. This point is in tension with the fact that three southern state supreme courts upheld the constitutionality of racial segregation laws prior to Buchanan, while others concluded that they might be acceptable under some circumstances, as Godsil herself notes elsewhere in the piece. Be that as it may, Godsil's piece is an important contribution to the literature on judicial power, property, and minority rights, and of course I'm happy with anything that increases my citation count!

Finally, it is amusing to note that Godsil at one point cites me as "Sonia Somin." Perhaps she is confusing me with my mother, Sofya Somin. Or maybe my gender identity crisis has still not been resolved, despite Eugene Volokh's heroic efforts.