No abstract

These two fascinating articles seek to fill an important lacuna in the burgeoning literature on the legal construction of whiteness. While LatCrit theorists in the legal academy have urged civil rights scholars and race critics to transcend the “black-white paradigm” of U.S. race studies, the majority of legal histories of whiteness have focused on two sets of cases: trials in the southeastern United States in which local courts tried to draw the line between “white” and “negro”; and cases about immigration and naturalization in which Federal courts determined whether particular foreign immigrants were suitably “white” for citizenship. Likewise, although there have been several important social and cultural histories of Texas Mexicans and whiteness in the last fifteen years, they have not considered the legal realm. The time is ripe for attention to the legal history of Mexican Americans' civil rights struggles in Texas, especially as they illuminate the shifting racial identity of Mexican Americans in the Southwest.

This Essay surveys the new field of cultural-legal history, highlighting its promise and pitfalls for the study of race and slavery. It discusses several aspects of the new cultural approaches: the view of trials as narratives or performances; the emphasis on the agency of outsiders to the law, including people of color and white women; and a household approach to slavery and other "domestic relations." The Essay argues that these studies have begun to transform historians' understandings of old debates regarding the origins and nature of American slavery, the beginnings of Jim Crow, and the possibilities of resistance against white cultural hegemony. While there are dangers to the new cultural approaches, in particular the loss of an all-encompassing framework to understand law, race and slavery, and the limitations of a black-white model, cultural-legal history also holds great promise for rethinking the role of law in racial formation, the nature of legal change, and the relationship between law and extralegal norms.

This article reviews Bernard Harcourt's Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007). It places the rise of actuarialism in criminal law in the United States in the context of trends in other areas of law, as well as in penology. It further suggests that this move toward actuarial thinking cannot in fact be separated from race; that prediction has always involved racial profiling, and that it is no accident that it does so.

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction "transplanted" in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a "Black Code," first adopted in 1806, which owed a great deal to both French and Spanish law. Comparisons of Louisiana with other slave states tend to emphasize the uniqueness of New Orleans' three-tier caste system, with a significant population of gens de couleur libre (free people of color), and the ameliorative influence of Spanish law. This reflects more general assumptions about comparative race and slavery in the Americas, based on the work of Frank Tannenbaum and other historians of an earlier generation, who drew sharp contrasts between slavery in British and Spanish America. How does the comparison shift if we turn our attention away from slave codes, where Tannenbaum focused, to the "law in action"? At the local level, one can see the way slaves took advantage of the gap between rules and enforcement, and to fathom racial meanings at the level of day-today interactions rather than comparisions of formal rules. This essay surveys three areas of law involving slaves-manumission, racial identity, and "redhibition" (breach of warranty)-to compare Louisiana to other jurisdictions, and particularly to its common-law neighbors.