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Abstract:
For more than twenty-five years, property scholars have been applying the theorem developed by Ronald Coase and systematized in the now-classic law review article, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, by Guido Calabresi and A. Douglas Melamed. More recently, property theorists and proponents of behavioral law and economics have begun to challenge the assumptions stemming from Coase, Calabresi and Melamed and to develop alternative accounts of nuisance and takings theory. This literature has entirely sidestepped, however, the role of race and poverty in the location of polluting industries. Using the story of Waterfront South, a segregated, environmentally beleaguered community in Camden, New Jersey, I explore the historical role of government in creating racially segregated and polluted inner cities. This article's unique contribution is to fashion a remedy to common law nuisance claims that: (1) forces polluters to internalize the harmful effects of their actions, (2) responds to the market distortion in property value caused by the long history of racism; and most importantly, (3) optimizes the utility of residents.

According to what I call a Residents' Choice Rule, courts should pre-set a damages award at the replacement cost of each residents' home in a nearby non-segregated community, and allow the residents to choose either injunctive relief or damages by majority vote. Building upon insights from cognitive decision theory, this hybrid rule allows residents of the community to decide whether they would be better off with a damages remedy or an injunction and minimizes the externally constructed impediments to their decision-making. The rule also has implications for takings jurisprudence because I contend that when the government exercises its power of eminent domain in segregated and underserved communities, compensation should be adjusted to reflect the devaluation caused by systematic racism.

coase theorum, nuisance, property rules, liability rules, race, environmental justice, civil rights

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. Interest convergence therefore may explain unexpected outcomes but is unlikely to predict such outcomes. Another line of inquiry raised by the cases is whether courts racialized nuisance doctrine by marking as nuisance conduct associated with Blacks and rewarding Blacks who adhered to white norms. The first claim is impossible to know with any certainty - and the second embraces gross oversimplifications of racial group behaviors. 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. However, the article also grapples with the reality that legal norms do not easily translate into social practice.

race, nuisance, civil rights, Jim Crow, property, formalism, interest convergence, legal history