Wednesday, January 29, 2014

Reifying Racism: Real Property as Information Law

Jane Bambauer

(By Derek Bambauer, cross-posted at Info/Law)

On Friday, Carol Rose and Richard Brooks will co-star at a conference at the University of Arizona James E. Rogers College of Law, titled “Saving the Neighborhood,” after their new book. (You can come! Register here.) Rose and Brooks examine the development of legalized racial segregation in housing, the gradual shift to the use of covenants in real property deeds to effectuate restrictions, and the legal battle that culminated in the Supreme Court’s rejection of such devices in Shelley v. Kraemer. Shelley is a casebook standard for both constitutional law and property courses, entangled as it is in questions of state versus private action, alienability of property, and the rise of the civil rights movement. Rose and Brooks, though, tell a much less well-known story: one of subtle signals, game theory, legal formalism, and norm entrepreneurs. The book is gracefully written and eminently readable. It tells a story that is much more complex than the standard 1L accounts of racial covenants. It intrigued me, and in the next few posts, I’ll expound upon why.

Rose and Brooks argue that the legal enforceability of racial covenants was almost beside the point: court battles were rare, and expensive. Rather, racial covenants served as a substitute and a signal. In looser-knit communities (and in ones with higher socio-economic status), racial covenants took the place of informal social pressures – everything from angry glares to deadly violence – that were the standard mechanism for maintaining racial boundaries in poorer communities or ones with closer ties. Racial covenants carried two simultaneous messages. First, and most obviously, they conveyed to potential homebuyers who were of a racial or ethnic minority (principally African-Americans, but also Asian-American and Latino-American ones as well, depending on the location) that they were quite definitely unwelcome. This indicator had real as well as semiotic effects. It was far more difficult for minority purchasers to obtain a home mortgage when reviewing banks saw the covenants, and the legal proscription could demonstrate a willingness to engage in extra-legal pressures as well. The second signal was to neighbors of the restricted property. It reassured them that collective action to maintain segregation remained strong, preventing the risk of panicked selling or white flight when neighbors feared a sudden shift in the area’s racial composition. This is a sophisticated account of the functioning of fairly arcane legal restrictions. (How many homeowners reading this have checked their deeds for restrictions? Supreme Court Justice William Rehnquist didn’t.)

I have two thoughts about the signaling function of racial covenants. The first is that it suggests some internal discomfort, on the part of at least some white homeowners, about their racial attitudes. Racial covenants strike me as a mechanism for psychological distancing from a slightly distasteful / embarrassing prejudice. (Put another way, I would argue that at least some homeowners preferred more covert “polite racism” to the overt pressures of broken windows and burning crosses.) If this is correct, covenants would have two appealing features. First, unlike “Not For Sale” signs or other constant, more salient signals, racially restrictive covenants were invisible until needed. While real property deeds are nearly always recorded, few people bother to check them until there is a need – buying or selling a parcel of property. Thus, white homeowners did not have to reveal themselves as racist until it was economically or socially important to convey that information. And, covenants allowed a sort of outsourcing of blame: the homeowners could claim that it was not they who were preventing neighborhood integration, but rather the law, via the mechanism of the deed to their property. Some homeowners (like Rehnquist) might plausibly claim not to know of the covenants, or even to disagree with them. But, they could argue that it was no longer up to them – the property carried a legal restriction, and they wanted to follow the law. (Put to one side the fact that, like Rehnquist, they could likely extinguish such covenants with a few hours of a lawyer’s time.) I would argue, then, that racial covenants played an important role for white homeowners aside from the practical one of keeping minorities out of their neighborhood: it allowed them to avoid confronting fully the depth and effects of their prejudice.

Second, this signaling function has important implications for utilitarian versus expressivist theories of law. I have always been an instinctive utilitarian: unenforceable laws strike me as useless. (Years ago, Massachusetts attempted to clear a congeries of outdated, unenforceable laws from the statute books, only to run into stiff opposition from segments of the public who still supported those strictures, even while acknowledging they were no longer binding.) Rose and Brooks’s work, though, convinces me the line between the two theories is not nearly so sharp as I had thought. Even legal devices that cannot be enforced in court can still have social effect. While racially restrictive covenants were rarely enforced in court before Shelley, the shadow of the law may have been important. But even after the Supreme Court’s decision, parties continued to write these covenants into deeds. The expressivist utilitarian view is that these were tales told by an idiot, full of sound and fury (at the Court’s decision), signifying nothing (legally). Rose and Brooks, however, argue that these formally defunct restrictions continued to play a role in setting out social norms – they were greatly weakened signals, but signals nonetheless. It took a flat ban under the Fair Housing Act of 1968 to cut off the informational role of covenants. Even afterwards, recorded deeds still served as musty, but functional, data for buyers about what to expect from their new neighbors.
This is real property as information law – tremendously exciting. More to come.

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