Kenneth W. Mack, Harvard Law School, has posted two civil rights history articles. The first is Rethinking Civil Rights Lawyering and Politics in the Era Before Brown. It appeared in the Yale Law Journal. Here's the abstract: This Article argues that scholarly accounts of civil rights lawyering and politics have emphasized, incorrectly, a narrative that begins with Plessy v. Ferguson and ends with Brown v. Board of Education. That traditional narrative has relied on a legal liberal view of civil rights politics—a view that focuses on court-based and rights-centered public law litigation. That narrative has, in turn, generated a revisionist literature that has critiqued legal liberal politics. This Article contends that both the traditional and revisionist work have focused on strains of civil rights politics that appear to anticipate Brown, and thus have suppressed alternative visions of that politics. This Article attempts to recover these alternatives by analyzing the history of civil rights lawyering between the first and second world wars. It recovers debates concerning intraracial African-American identity and anti-segregation work, lawyers' work and social change, rights-based advocacy and legal realism, and the legal construction of racial and economic inequality that have been elided in the existing literature. It thus contends that the scholarly inquiries that have been generated in both the traditional and the revisionist work should be reframed.
The second article is Law, Society, Identity and the Making of the Jim Crow South: Travel and Segregation on Tennessee Railroads, 1875-1905. It appeared in Law and Social Inquiry. Here's the abstract: This article reexamines the well-known debate over the origins and timing of the advent of de jure segregation in the American South that began in 1955 with the publication of C. Vann Woodward's The Strange Career of Jim Crow. Arguing that the terms of the debate over Woodward's thesis implicate familiar but outmoded ways of looking at sociolegal change and Southern society, the article proposes a reorientation of this debate using theoretical perspectives taken from recent work by legal historians, critical race theorists, and historians of race, class and gender. This article examines the advent of railroad segregation in Tennnessee (the state that enacted America's first railroad segregation statute) in order to sketch out these themes, arguing that de jure segregation was brought about by a dialectic between legal, social and identity-based phenomena. This dialectic did not die out the the coming of de jure segregation, but rather continued into the modern era.