Shelly

[DAVID E. BERNSTEIN]

Incomplete answers to these questions can be found in Arthur T. Martin,
Segregation of Residences of Negroes, 32 Mich. L. Rev. 721 (1934).

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>

>>> Larry Tribe <larry at TRIBELAW.COM> 11/02/00 03:56PM >>>
David Bernstein makes an interesting claim about refusals of courts in
various states and localities to enforce non-racial restrictive
covenants in
states that would enforce racial restrictions. But must we not ask: What
was
the nature of the other restrictions that those courts refused to
enforce?
Did they not fit into particular subcategories (e.g., restrictions
naming
particular persons, etc.) deemed ex ante to be contrary to public
policy?
Was there a general principle in those states, actually followed in
practice, that restrictions on alienation were all presumed contrary to
public policy unless the individual restrictions were affirmatively
found to
be otherwise? If that question can fairly be answered yes, then I'll be
delighted, and I'll be able once again to defend Shelley on this far
more
straightforward ground -- as I did for years -- regardless of what the
Court
was thinking, a matter I find relatively unimportant in this instance.
But
if that question cannot be so answered, then Shelley remains a mystery
but
for the other explanation I have offered about government classification
of
buyers by race. -- Larry Tribe.

-----Original Message-----
From: DAVID E. BERNSTEIN [mailto:DBERNSTE at WPGATE.GMU.EDU]
Sent: Thursday, November 02, 2000 3:28 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Shelly


I agree that this theory would justify Shelley, and have said so in a
Vand. l. Rev. article, pointing out that various states and localities
that enforced racial covenants refused to enforce other restrictions on
alienation that affected a far smaller percentage of the housing market
than did racial restrictions.  However, I don't believe that this was
actually argued to the Court, so is there any evidence that this was
what the Court was thinking in Shelley?

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>

>>> Michael McConnell <mcconnellm at LAW.UTAH.EDU> 11/02/00 03:15PM >>>
I think that Shelly is explicable on quite another ground. As I
understand
the common law regarding restrictions on alienation, they are
disfavored,
and are enforceable only when they accord with public policy. Thus, to
enforce the racially restrictive covenants in Shelly is to declare that
the
covenants acccord with public policy. That is state action. (By the way,
it
is the same theory under which the proponents of the CRA of 1875
defended
the constitutionality of its prohibition of discrimination by common
carriers.)

Michael McConnell