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Monthly Archives: January 2017

Jim Crow’s Unwritten Code

In The Jim Crow Routine, historian Stephen Berrey brings fresh eyes to the intricate set of legal rules that maintained racial segregation in the American South. Building on works like Leon Litwack’s Trouble in Mind: Black Southerners in the Age of Jim Crow and Neil R. McMillen’s Dark Journey: Black Mississippians in the Age of Jim Crow, Berrey focuses not on the rise or demise of Jim Crow so much as the manner in which it disciplined daily life. For average folks, argues Berrey, Jim Crow turned the South into a stage where whites and blacks learned to negotiate one another’s presence on the street, in stores, at the post office, and at work – according to elaborate, albeit unwritten, scripts.

Taking Mississippi as a point of focus, Berrey demonstrates that Jim Crow involved a complex set of scripted “exchange[s]” between whites and blacks that were at once “subtle and dynamic, intimate and volatile,” exchanges that in a sense formed a customary law of interaction independent of legislatures and courts. (P. 4.) Closely linked to this were strategies of resistance that African Americans developed to avoid white recriminations, as well as strategies that whites developed to enhance, or modernize, the legal challenges of racial control. Such modernizations exploded dramatically following the Supreme Court’s decision in Brown v. Board of Education in 1954, as southern states moved quickly to erase overt racial classifications from their law, meanwhile imposing new, more subtle forms of surveillance rooted in the rubrics of maintaining the peace, protecting property, and preventing crime.

At least one startling observation emerges from Berrey’s study. First, as much as southern law worked to achieve racial separation, whites and blacks in the Deep South interacted and existed in a near constant state of racial togetherness, working, playing, shopping, fishing, and even eating in close proximity to one another, often to the point that racial segregation was adhered to only in the flimsiest, most ad hoc fashion. For example, Berrey presents us with stories of whites and blacks attending the same functions divided only by a row of stools (P. 19), attending the same theaters separated only by a rope (P. 25), eating together in fishing boats separated only by a casually placed stick (P. 24), and sitting in the same rows in courthouses with only one extra space between them (P. 27). Such divisions, which hardly kept the races apart, were further compromised by outright concessions that allowed for black servants to join their employers on train cars and trolleys and even live in their homes.

As Berrey puts it, “even within a segregated system, African Americans and whites regularly interacted in public spaces such as bars and on buses and in the private spaces of the home.” (P. 22.) Precisely because such interactions were ubiquitous, argues Berrey, Jim Crow frequently manifested itself less as a legal system of physical separation than an implicit script of social performance, a customary law that required blacks not to avoid contact with whites, which was impossible, but rather to pay them deference. To take just a few examples, blacks were expected to remove their hats when meeting whites in the street, to make way for whites in line at the post office, and to refrain from calling whites by their first names. (P. 31.)

This is important. In his recent book Bind Us Apart: How Enlightened Americans Invented Racial Segregation, Nicholas Guyatt argues that the origins of Jim Crow lay in antebellum debates about colonization, i.e., the idea that African Americans should be transported back to Africa upon emancipation, lest the races engage in “amalgamation.” Berrey suggests the opposite, namely that segregation had less to do with separating the races than keeping them together, a point that calls to mind the distinction between segregation and exclusion first articulated by historian Howard Rabinowitz. Rabinowitz maintained that colonization was a form of exclusion that needed to be distinguished from segregation, which actually allowed significant amounts of interracial contact.

Berrey takes Rabinowitz’s thesis in new directions, suggesting that segregation was really more about performances of deference than separation, and that the laws of Jim Crow were themselves designed to remind blacks not of their isolation from whites, but rather their subordination to them. Berrey locates the origins of segregation not in calls to exclude blacks from southern society, but rather in efforts to counter black demands for equality following the Civil War. Citing historian Leon Litwack, Berrey notes that post-bellum white southerners became concerned that emancipated blacks were “less-deferential” than their enslaved ancestors, even to the point of becoming “aggressive” about their right to be considered “social equals.” (P. 21.)

Closely related to this was a fear that newly emancipated blacks might try to blur racial boundaries, either by engaging in intimate relations with whites or passing (a practice by which light-skinned African Americans held themselves out as white). (P. 21.) Here, Berrey provides us with an alternate hypothesis to explain how southerners dealt with questions of amalgamation, or interracial sex. While Guyatt argues that the favored solution was colonization, Berrey suggests that it was segregation, a system that barred interracial liaisons and maintained racial “difference” precisely because it demanded racial deference. (P. 21.)

The second half of The Jim Crow Routine focuses on the transition from Jim Crow to what came after, the legal system that we currently have in place today. According to Berrey, pressure from black activists, the federal government, and the national media intensified so much during the civil rights era that white southerners abandoned the formal law of segregation and the elaborate unwritten scripts that went along with it, moving instead toward more subtle forms of control, most revolving around prisons and police. In a revealing passage, for example, Berrey provides evidence that the Mississippi Sovereignty Commission deliberately and surreptitiously tracked civil rights activists in the state, often harrying them with arrests for minor quality-of-life offenses, traffic violations, and so on – not violations of Jim Crow law.

This is a significant find, foreshadowing a move to the very type of colorblindness that Michelle Alexander has argued characterizes the “New Jim Crow,” a system of racial repression that relies on the biased enforcement of ostensibly neutral criminal laws. And, while Alexander argues that the New Jim Crow began during the War on Drugs in the 1980s, Berrey provides evidence that it actually emerged earlier, in the 1960s.

However, Berrey misses an opportunity to take his rich understanding of Jim Crow and bring it to bear on Alexander’s argument about legacies. For example, Berrey’s attention to codes of social performance forged in the Jim Crow South provides new perspective on how those codes may have evolved during the 1950s and 60s, and travelled to the urban North. According to conservative social theorist Thomas Sowell, for example, southern blacks learned violent codes of honor from southern whites, and took those codes with them as they migrated out of the South during and after World War II. These codes, which sociologist Elijah Anderson has termed “codes of the street” were arguably descendants of the Jim Crow routine, unwritten rules that demanded a certain deference, or respect, that, if not met, invited violence. According to criminologist Barry Latzer, such codes of violence, forged in the American South, help explain spikes in urban violence following southern migrations to the urban North in the 1960s, and continue to plague urban communities even today, a point Latzer raises in his new book, The Rise and Fall of Violent Crime in America.

Berrey’s take on Latzer, Anderson, and Sowell would be of interest, not least because their discussions of unwritten codes of honor, forged in the South, seem to dovetail with Berrey’s formulation of the Jim Crow routine, suggesting that the extreme violence that characterized southern white society came gradually to influence southern black society as well. As it stands, however, The Jim Crow Routine remains important for what it tells us about the intersection of customary law and legal codes in the post-bellum, pre-Brown South. If Berrey is right, then the written law of Jim Crow may not have been as important as previously thought, an elaborate artifice, to be sure, but not as critical to the ordering of southern life as unwritten norms, or what Berrey terms the “Jim Crow routine.”

Cite as: Anders Walker, Jim Crow’s Unwritten Code, JOTWELL (January 16, 2017) (reviewing Stephen A. Berrey, The Jim Crow Routine: Everyday Performances of Race, Civil Rights, and Segregation in Mississippi (2015)),

Engendering the History of Legal Aid

The standard history of legal aid begins with the founding of the New York Legal Aid Society in 1876. It then chronicles male attorneys’ efforts to professionalize legal services during the Progressive Era, culminating in the 1919 publication of Reginald Heber Smith’s famous text, Justice for the Poor. By centering gender as a category of analysis, Felice Batlan cracks this narrative wide open. Women and Justice for the Poor demonstrates that the dominance of male attorneys and clients was contested from the start. By exposing the temporality and contingency of categories that Smith and many previous historians took for granted, Batlan deconstructs conceptual boundaries between law and social work, lawyers and reformers. The book, which recently won the Law and Society Association’s J. Willard Hurst Award for the best book in sociolegal history, is beautifully written, precisely researched, and strongly argued.

Batlan shows that organized legal services for the poor began earlier than we have recognized, in a female dominion of legal aid that prevailed from the end of the Civil War through 1910. Although a rich historical literature has documented women’s social reform activities in this period, Batlan provocatively argues that many female-dominated organizations functioned as legal aid services. Women reformers in New York founded the Working Women’s Union in 1863. Similar organizations followed in Boston, Chicago, and much later in New Orleans. Elite women reformers acted as lay lawyers. They educated themselves about caselaw, used moral suasion and social pressure to advocate for clients, founded service institutions, and campaigned for reform in local government.

Male attorneys began to assert control over the provision of legal services to the poor with the first national conference on legal aid in 1911. Batlan shows how these attorneys endeavored to professionalize legal aid, narrowing its scope in the process. The types of claims changed. As the male breadwinner became the archetypical client, legal aid services began increasingly to exclude women whose claims regarding spousal abuse or mothers’ custody were perceived to disrupt the family. In addition, the nature of the lawyer-client relationship changed. Female lay lawyers had approached the lawyer-client relationship holistically, offering sympathy and a range of social and financial supports along with legal guidance. Male legal aid attorneys eschewed emotion in favor of objectivity and restricted their practice to technical legal services. The masculinization and professionalization of legal aid accelerated through the 1920s, until federal funding opportunities during the Depression encouraged legal aid organizations to once again conceptualize themselves as a form of social service. A period of enhanced cooperation between lawyers and social workers continued through World War II—a trend that also empowered women clients. In the late 1950s and through the 1960s, however, legal aid attorneys again began to distance themselves from social workers. The retirement of leading female aid attorneys coincided with several trends: an increasing emphasis on prestigious educational credentials as criteria for a new crop of legal aid attorneys, the formalization of organizational structures, and a turn toward aggressive, rights-oriented litigation.

Gender inflected the practice of both male and female legal aid lawyers, influencing their view of their clients and their framing of clients’ claims. In a particularly fascinating chapter, Batlan examines how the attorneys of the New York Legal Aid Society, steeped in a masculine legal culture focused on rights and constitutionalism, used gender as a measuring stick to evaluate their clients. They perceived Jewish men as excessively feminine and, therefore, undeserving; sailors, by contrast, were hyper-masculine and, consequently, deserving of rights. Female domestic servants, meanwhile, lacked rights precisely because they toiled in a physical and social space constructed as feminine and harmonious. Batlan’s examination of domestic workers provides further evidence that coverture persisted far beyond the passage of the Married Women’s Property Acts in the 1840s and 1850s. Legal aid lawyers did not view female workers as fully independent contractual actors and, as a consequence, were reluctant to impose obligations on employers to pay quantum meruit to domestic workers who quit early. Even when women legal aid lawyers brought wage claims on behalf of domestic workers, they represented employers’ failure to pay as fraud rather than breach of contract. Batlan’s deft analysis shows how gender ideologies had real effects on social experience.

A second, only slightly less explicit theme explores the place of legal aid in the legal history of capitalism. Ever since Morton Horwitz’s Transformation of American Law in 1977, we have understood the importance of class and capitalism to changes in legal doctrine. Batlan shows us that emerging legal histories of capitalism should include the history of lawyering itself. The development of legal aid, she argues, was inextricably linked with efforts to discipline immigrants to capitalism’s norms. Early women lay lawyers believed that the noble and right thing was to provide legal services free of charge. Charging a fee to poor clients who could not afford it would only exacerbate their dependence. Professional legal aid lawyers subsequently inverted the reasoning of earlier women’s groups, associating charitable legal services with dependency. Instead they argued that fees for service would promote the kind of independence necessary for democratic citizenship.

Women and Justice for the Poor opens up avenues for further research on gender and legal history of capitalism. In particular, it illustrates how maternalist reform has served as a check on capitalist rationality. Women lay lawyers, influenced by maternalist ideologies, embraced a holistic and empathic approach to the lawyer-client relationship. They pursued dignitary as well as monetary remedies and viewed no claim as too small to merit litigation. As legal services professionalized, male attorneys grew more preoccupied with the efficiency of their services and dismissive of clients viewed as bad bets. Maternalism, however, functions as a double-edged sword in Batlan’s narrative, as it does in much of women’s legal history. At moments, Batlan suggests that cross-class alliances existed between elite women lay lawyers and their working-class clients. That conclusion may be justified. Yet source limitations meant that Batlan was able to give a fuller portrait of elite actors in her story, though she does an admirable job of gleaning the archives for insight into non-elite perspectives. Moreover, as Batlan observes, the idealization of the home obscured the exploitation and negated the rights of domestic workers. Ultimately, Batlan argues persuasively that substantive justice concerns not only material outcomes of litigation but also the nature of the lawyer-client relationship. This is an important point for law students as well as historians, providing another reason—if you need more—to consider assigning excerpts of this book in a seminar.

Engendering the history of legal aid raises a host of historical and normative questions. How and why did the provision of legal services become separated from a range of social support services? Should the lawyer-client relationship remain isolated from social work? To what extent should the legal profession retain a monopoly on legal services? Historians and legal scholars interested in answering these questions should move Women and Justice for the Poor to the top of their reading lists.

Cite as: Deborah Dinner, Engendering the History of Legal Aid, JOTWELL (January 4, 2017) (reviewing Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)),