Citation

Brandwein P. Law Soc. Rev. 2007; 41(2): 343-386.

Copyright

(Copyright © 2007, Law and Society Association, Publisher John Wiley and Sons)

DOI

10.1111/j.1540-5893.2007.00301.x

PMID

unavailable

Abstract

This article reconsiders the conventional wisdom that the Supreme Court definitively abandoned the freedmen to their former masters through the “state action” decisions of the 1870s and 1880s. Arguing that anachronisms distort our understanding of this critical period, I offer an historical institutional analysis of state action doctrine by recovering the legal categories, assumptions, and distinctions that constituted judicial discourse about the state action rule. Showing that federal power to protect blacks was more intact than scholars realize, I also add a perspective from the sociology of knowledge. By examining a series of modern developments that erased the contexts of the state action decisions, I show how institutional practices gave rise to the anachronisms that this article seeks to correct.