Shelly

[DAVID E. BERNSTEIN]

OK, some excerpts:

"The [Louisiana Supreme] court said that partial restraints on
alienation were valid and on that basis held the restriction before it
unobjectionable.  No mention was made of the fact that the population of
the county in which the property was located was over forty-five per
cent Negro [actually, probably closer to 60%--DB].  As no attention was
given to the actual size of the excluded group there is no reason for
supposing that a different conclusion would have  been reached if the
property involved had it been in a vicinity sixty or even eighty per
cent Negro.  One wonders if the same court would have felt that a device
which excluded as large a percentage of white people was only a partial
restarint and so valid."
"If the the Rule Against Restraints on Alienation is to be justified on
the basis of a policy which frowns on restricting the potentional
commerical activity of property, the effect and not the form of the
restriction should determine whether or not it vilates the Rule.  The
size of the excluded group would seeem to be of significance in any
appraisal of the degree of restraint cuased by a provision against
alienation. ... [Yet] in jurisdictions with large Negro populations
[such as DC, Louisiana and Alabama] covenants and conditions against
conveyance to Negroes have been held valid."
"Even in jurisdictions which assert that all restraints on alienation
are void, provisions have been held valid if they resrained alienation
indirectly by forbidding occupaiton by Negroes.  In no race segregation
case has a court intimated that the extent to which aleination is
actualy restrained has any bearing on the problem."

Martin makes what seems to be a persuasive argument that courts evaded
their normal rules on restraints on alienation when it came to
restrictions on African Americans.  What he does not do is *prove* his
case by showing that, for example, Louisiana in fact overturned other
restraints on alienation that affected less than 45% or 60% of the
populations.  He does point at that the general rule is that even
restaints on alienation that only affect a few designated persons are
void.

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 05:06PM >>>
Would David Bernstein care to give busy readers (and who isn't?) a clue
to
what those "incomplete answers" might be, perhaps by way of a preview of
the
article itself, or is a trip to the library the only acceptable way of
discovering the relevant information?

-----Original Message-----
From: DAVID E. BERNSTEIN [mailto:DBERNSTE at WPGATE.GMU.EDU]
Sent: Thursday, November 02, 2000 4:54 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Shelly


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