Geographies of Judgment: The Doctrine of Changed Conditions and the Geopolitics of

Race
Author(s): David Delaney
Source: Annals of the Association of American Geographers , Mar., 1993, Vol. 83, No. 1
(Mar., 1993), pp. 48-65
Published by: Taylor & Francis, Ltd. on behalf of the Association of American
Geographers

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 Geographies of Judgment: The Doctrine
of Changed Conditions and the
Geopolitics of Race
David Delaney

Department of Geography, University of Wisconsin - Madison, Madison, WI 53706

Abstract. This paper examines a segment of
the legal historical geography of race and ra-
cism in the U.S. from 1 917-45. It focuses on
conflicting judicial interpretations of the
meaning and applicability of 'the doctrine of
changed conditions' in connection with dis-
putes about racially restrictive covenants. I
analyze the ways in which ideological con-
ceptions of space can infuse legal thought it-
self, and how legal pronouncements in-
formed by such conceptions contribute to the
shaping of geographies of power. I also exam-
ine the ways in which the spatiality of a rule
can be manipulated so as to yield the desired
interpretation. I suggest implications of this
analysis for questions within legal geography
and for geographical theory more generally.
Key Words: context, critical legal theory, doctrine
of changed conditions, interpretation, law, law and
geography, law and society, race, racism, spatiality.
HE present paper is informed by and
seeks to contribute to two recent theo-
retical projects originating in human ge-
ography. First, it seeks to advance the retheo-
rization of the spatiality of social life advocated
by Soja (1985). It is also intended as a contri-
bution to the emergent focus of study auspi-
ciously referred to by Blomley and Clark (1990)
as the law and geography movement. The his-
torical-empirical focus of study concerns the
legal politics of racial residential segregation in
the U.S. in the period 1917-45. This period is
roughly bracketed by two landmark Supreme
Court cases that invalidated sociolegal proce-
dures of mapping racism to the landscape,
Buchanan v. Warley (245 U.S. 60, 1917) and
Shelley v. Kraemer (334 U.S. 1, 1948).
Most of my attention will be given to exam-
ining the spatiality of legal interpretation as it
concerned, indeed constituted a significant
part of, the geopolitics of race. I should stipu-
late that I view interpretation first as a creative
but highly structured social practice, as some-
thing that people do in actual social, historical
and material circumstances. It is also purpose-
ful. Legal interpretations in particular are seen
as representations of social life which are ad-
vanced in situations characterized by conflict.
Contending interpretations are advanced by
attorneys or judges in order to confer meaning
on states of affairs or chains of events in order
to justify or legitimize subsequent events. This
view of interpretation as action implies that in
political situations, interpretation is a form of
political action (cf. Clark 1989). Not only is in-
terpretation seen as social and, at times, politi-
cal, but it may also be materially consequential.
To the extent that the conflicts were explicitly
about social space, some of these conse-
quences were spatial. Most important, my dis-
cussion will concern explicitly geographical in-
terpretations. In presenting an analysis of the
doctrine of changed conditions, I will argue
that judges, speaking with the voice and
authority of the state, purported to be merely
interpreting geographies of race from a dis-
tance, so to speak. I will claim, however, that
they can be better seen as actively participating
in the construction of geographies of race.
One more note: the events represented by
the cases discussed below involved real peo-
ple in real places engaged in grass-roots politi-
cal activity for and against racial segregation.
The transformation of such a conflict into a
narrow, official, legal dispute renders it no less
political, nor indeed more 'legal.' While, for
reasons of space and expository clarity, I will
be focusing on the official reported results of

Annals of the Association of American Geographers, 83(1), 1993, pp. 48-65

? Copyright 1993 by Association of American Geographers
Published by Blackwell Publishers, 238 Main Street, Cambridge, MA 02142, and 108 Cowley Road, Oxford, OX4 1JF, UK.

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 Geographies of judgment 49

litigated disputes, these conflicts should be
seen as representations of a far messier social
reality.
Theoretical Contexts
Soja's 1985 piece is representative of a
broader effort to reorient geographical theory.
This effort focuses on the ways in which social
and spatial phenomena can be described as
being mutually constitutive. (For earlier formu-
lations, see Castells 1983; for a more recent
one, see Pred 1990.) Soja's "retheorization" is
filled with suggestive insights, provocative as-
sertions, and rich aphorisms which challenge
conventional approaches to human geography.
The theme of mutual constitutivity is summed
up in the notions that "social life is both space
forming and space contingent" (98, emphasis
omitted) and that spatiality is "simultaneously
the medium and outcome and presupposition
and embodiment" of social action (98).
Themes of power, politics, and ideology figure
prominently in Soja's work and specifically in
his understanding of the inextricable connec-
tions between social and spatial phenomena.
Drawing extensively on the work of Lefebvre,
Soja claims that "space is political and ideologi-
cal. It is a product literally filled with ideology"
(101). So too, his account of 'spatial praxis' (see
also Castells 1983), through which the spatiality
of social life is reinforced or reproduced or
transformed, places shifting configurations of
social power at the center of spatial analysis.
The idea of spatial praxis is also central to the
assertion that the production of spatiality and
the making of history are, in some strong
sense, identical.
The reorientation of geographical theory
urged and practiced by Soja and others raises
interesting questions about how geographies
of power-or the spatial configurations through
which relations of power are constituted-are
inherited, revised, reworked, and bequeathed
to subsequent generations. It raises also serious
questions about how to understand the land-
scapes that we have inherited and will be-
queath. The present paper aims both to criti-
cally examine some of these propositions and
to argue for the utility of this way of looking at particular set of legal theories-or attitudes-
things. This is done through a rather detailed
analysis of how such revisions and reworkings
have played out in actual historical circum-
stances. If social space is "literally [?] filled with
ideology," how is this "filling" done? by whom?
under what conditions? to what imagined or
intended ends? Is ideology singular? Is it coher-
ent? Or might space be simultaneously filled
with a multiplicity of conflicting or contradic-
tory ideologies? If so, how can they be told
apart, and who does the telling?
The emergence of a critical, theoretically in-
formed legal geography provides a basis for
addressing some of these questions. While still
a recent development, this critical legal geog-
raphy is already characterized by substantial
empirical work and by programmatic 'retheo-
rizations' not unlike Soja's in intent, such as
those by Blomley (1989), Blomley and Clark
(1990), Clark (1989, 1990), Kobayashi (1990),
and Pue (1990). These programmatic works
are, again, sources of suggestive insights and
important questions. I will limit discussion here
to two issues that are particularly germane to
my subsequent analysis. The first concerns the
relation of the law and geography movement
to contemporary legal theory, and so to under-
standings of the relationship of law to society
that informs this self-consciously critical legal
geography. The second concerns claims about
the kind of contributions that geographers
might bring to analyses of sociolegal phenom-
ena.
Understanding or explaining the relations
between law and society is, perhaps, the
definitional problematic of legal theory. Com-
peting theories are distinguished from each
other by the solutions offered to aspects of this
problem. An examination of different ap-
proaches is beyond the scope of this introduc-
tion.1 Here I would simply like to draw atten-
tion to three points of more immediate
concern. First, that geographers are even dis-
cussing the proposition that positions within
legal theory have a bearing on how we view
the connections between society and space is
the surest sign that the law and geography
movement is indeed something new under the
sun. To some extent the programmatic works
of legal geographers should be seen as part of
and not merely commentaries on contempo-
rary sociolegal debates. Second, this critical le-
gal geography exhibits strong affinities with a
known as critical legal'studies (CLS). Third, one
of the themes that distinguishes CLS from other
approaches to legal theory and that appears in

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50 Delaney
the works of the geographers under discussion
is a critique of the law/society distinction. Be-
cause this critique is central to an appreciation
of what legal geographers are doing, it warrants
some attention. (I should stress, however, that
this unsubtle sketch necessarily risks parodying
some extremely complex practical and philo-
sophical issues. For fuller accounts see, for ex-
ample, Altman (1990), Coombe (1989), Gor-
don (1984), Kelman (1987), Trubek and Esser
(1989), as well as the works under discussion,
especially Clark (1990).)
According to critical legal scholars, conven-
tional, which is to say liberal, legal theories are
predicated on the existence of a rather sharp
distinction between law on the one hand, and
society on the other. Whether this distinction
is seen primarily as analytical or ontological is
beside the point. What is important is what the
belief in such a distinction is thought to do.
Among its effects is the tendency to direct at-
tention to consideration of law as an autono-
mous entity with objective and discoverable
properties. Such objectivist and formalist con-
ceptions of law are also seen to have the effect
of depoliticizing legal practices. This is particu-
larly so with respect to pronouncement of ju-
dicial decisions, to the extent that such actions
may be portrayed as having been the result of
the intrinsic meaning of the law itself rather
than the discretionary choices made by social
actors who happen to have the authority con-
ferred on judges. To put it baldly, the law/so-
ciety distinction which is integral to mainstream
Liberal legal theories is itself to be seen as a
cultural or ideological artifact. More practically,
it is an obstacle to the construction of critical
legal theory.
Attempts to theorize about law and society
separately (as if the former were somehow
apart from or above the latter, which is where
'real' life happens) and attempts to investigate
how these two realms are related (for example,
how law serves society) are fundamentally mis-
guided and rest on impoverished conceptions
of these two terms. First, what we usually think
of as legal phenomena such as laws, doctrine,
rights, and legal categories (such as landlord or
slave) are socially produced and constructed.
They are the inventions of people acting in the
world. Like other cultural resources we have
inherited, they are modified by use in the prac-
tice of social life. Secondly, basic social rela-
tions and relational identities such as husband,
employer, stockholder, or tenant, are legally
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constituted. Moreover, they are constitutive of
social consciousness and relational self-identity.
To act within these social roles is, to some
extent, to act according to understandings of
socially derived notions of rights or capacity
with respect to others. In Blomley's view, there
is no gap between law and society (1989).
The mutually constitutive thesis as it appears
in critical legal thought requires that we study
specifically legal practices such as interpreta-
tion and judgment as instances of social prac-
tices (the study of society in law). At the same
time, such practices are not to be seen as being
a monopoly of specialists and professionals. As
I will try to demonstrate, in a rights-conscious
society such as the U.S. in the twentieth cen-
tury, we all make 'legal' judgments and inter-
pretations all the time. We do so whenever we
act according to what we believe our rights to
be in relation to others, or according to what
we believe to be the rights of others to impose
obligations on us, whenever we feel our rights
are being denied, or whenever we make nor-
mative assessments or more cynical calcula-
tions about the possible legal consequences of
our actions. (This directs our attention to the
study of law in society.) Legal and social phe-
nomena are inseparable whether the point of
their interpenetration (or the site of our analy-
sis) is on the street, in the workplace, in the
home, in law schools, or on the bench. As
both Blomley and Clark convincingly argue,
the position we take on the law/society ques-
tion within legal theory is of significance to
how we formulate the law/space question in
geographical theory. In particular, an overly
narrow view of what kinds of things the words
'law' and 'legal' name closes off interesting
questions about the involvement of sociolegal
phenomena in the construction of human ge-
ographies and the involvement of sociospatial
phenomena in the production of law.
A second and related feature of this emerg-
ing legal geographical theory is the view that
legal discourse is, in Pue's words, an "anti-ge-
ography" (1990, 568). Again, at the risk of cari-
cature, the idea here is that formal, official law
as represented by mainstream legal theorists
and as encountered in legal texts such as
official court reports is profoundly (and as a
matter of principle) abstract, whereas geogra-
phy is concrete. Legal discourse is the dis-
course of generality and universality, whereas
to speak geographically is to be sensitive to
specificity, particularity, and variability. Framing
 Geographies of Judgment 51
interpretations of states of affairs in legal terms
decontextualizes them but to bring a theoreti-
cally informed "geographical reasoning" (Clark
1990, 311) to the same set of affairs is to con-
textualize them. Writing from within the legal
academy, Pue goes so far as to welcome "ge-
ography as insurrection" (1990, 575), as a dis-
course that is inherently subversive to abstract,
formalistic legal thought.
The spirit behind these propositions is one
to which I am sympathetic, especially in so far
as it is concerned with opening up an intellec-
tual space for legal geography that is not def-
erential to mainstream legal theory. As pro-
grammatic statements intended to stimulate
and give orientation to geographers interested
in legal phenomena, they do exactly what such
statements are supposed to do. They raise se-
rious and difficult questions.
Among these is the question of the theoreti-
cal status of 'context.' Does it consist, for ex-
ample, of facts which are excluded from a legal
account of a state of affairs or of other facts
which might account for these acts of exclu-
sion? Similarly, where does context, and spe-
cifically geographical context, end? How is the
line drawn between context and irrelevant de-
tail? Who is to draw the line? judges? sub-
sequent analysts? Another set of questions
arises when we consider that the formulation
of such a strong oppositional relation between
(abstract, decontextual) legal discourse and
(concrete, contextual) geographical facts
seems to rely on or resuscitate the very di-
chotomies that the mutually constitutive theses
in both legal and geographical theory are at
pains to undermine. In an effort to avoid reli-
ance on a false dichotomy between law and
geography and to explore aspects of what
Blomley has called the "law-space nexus"
(1989, 512), the present paper examines mo-
ments in the legal constitution of geographical
'facts' and the spatiality of legal interpretation
itself. Each of these may properly be called
'geographies of judgment.'
Historical Context
A Strand of History
The story of the rise of Jim Crow legislation
and racial segregation in the U.S. in the early
decades of the twentieth century is well
known and well told (see, for example, Wood-
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ward 1957; Henri 1976; Bell 1980). My objec-
tive here is simply to draw attention to certain
sociospatial practices and processes which
were intimately related to racial segregation but
distinguishable from it.
Immediately preceding the period covered
in this paper, an important focus of the geo-
politics of race concerned the emergence of
the municipal segregation ordinance move-
ment (Rice 1968; Power 1982). Related to this
was the rise of the NAACP and a concomitant
shift in Black political ideology from 'accommo-
dation' to a commitment to integration (DuBois
1940; Meier 1963). I would here like to men-
tion three features of this phase of the conflict
that relate to the topic at hand. First, the mu-
nicipal segregation ordinance movement was
a grass-roots social movement that sought to
establish race districts in American cities. Pro-
ponents of ordinances petitioned city councils
who then, on advice from city attorneys, drew
up and passed the ordinances. These ordi-
nances made the permissibility of legal rela-
tions (property relations) conditional on the
meaning of submunicipal territories which, in
turn, were defined in terms of race. It should
be noted that in most, but not all, of the cities
involved, blacks were disenfranchised and had
little or no access to municipal government.
Second, the emergence of the NAACP and
the shift in political ideology entailed a radically
different spatial strategy, at least to the extent
that it was oriented toward a transformation of
spatial relations (from tacit acquiescence in
segregation to explicit opposition to it). Third,
this ideological shift also entailed a greater re-
liance on law and litigation as a political strat-
egy.
The turn away from accommodation as a
political strategy was first and foremost a turn
toward a more aggressive protest against racial
segregation and the social and political subor-
dination that segregation facilitated. This turn
was also related to a change in Black political
rhetoric from a discourse of uplift to one of
rights. With this concern for rights came a con-
comitant concern for the means of securing
those rights. Indeed, the emergence of the
NAACP as a political force is emblematic of
what has been called "the era of legalism" in
Black political thought (Meier et al. 1971). In
rhetoric and in practice, a more vigorous en-
gagement with the law presupposed the valid-
ity of its objective.
In the period 1912-16, a number of local
52 Delaney
disputes were being litigated. These cases pro-
duced uneven results. In 1916 the NAACP
brought the case of Buchanan v. Warley (245
U.S. 60, 1917) to the Supreme Court. In Bucha-
nan, the Court found the Louisville, Kentucky
segregation ordinance to be in violation of the
Fourteenth Amendment (Schmidt 1982;
Wright 1985). As a consequence of the Court's
ruling in Buchanan, segregation ordinances
were struck down nationwide. And although
municipalities continued to draw up ordi-
nances designed to remedy defects in the Louis-
ville segregation law, these too were found to
be in violation of the Constitution (Harmon v.
Tyler, 273 U.S. 668, 1927; City of Richmond v.
Deans, 281 U.S. 704, 1930; Clinard v. City of
Winston-Salem, 6 S.E. 2d 867, 1940).
In the wake of the Buchanan decision (and
coinciding with the peak of the Great Migra-
tion), American cities saw the emergence of a
popular legal-spatial instrument of segregation
in racially restrictive covenants. This response
to Buchanan was, like the segregation ordi-
nance movement, the result of grass-roots po-
litical mobilization. Organizational tools in-
cluded the formation of neighborhood
improvement associations with officers, by-
laws, and newspapers (Vose 1959; Spear
1967). These organizations may also be seen
as "iprivate governments" (Reichman 1976).
Clearly, restrictive covenant regimes, no less
than segregation ordinances, represented a
spatial strategy to embed racial segregation
more firmly in existing spatialized structures of
power through the creation of legal spaces, i.e.,
the restricted tract. These legal spaces were
interpreted into existence by property owners,
realtors, lawyers, and judges through interpre-
tations of contract law.
Easier to establish than municipal race zones,
racially restricted tracts had the additional and
crucial advantage of being grounded not in
public law but in the private law of property
and contract. Thus their establishment and en-
forcement were considered to be immune to
charges of state action prohibited by the Four-
teenth Amendment. Ease of establishment also
facilitated the spread of legally sanctioned seg-
regation while privatization of legal grounding
made it more difficult to fight. As a legal spatial
strategy, it seemed to be an ingenious re-
sponse by segregationists to their defeat in
Buchanan. Most important, basing the legal
meaning of the exclusive space in contract and
property doctrines allowed for the continu-
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ation of a means of state enforcement of racial
segregation. This enforcement was effected
through civil suits in the event of alleged
breaches and the issuing of injunctions in the
event of plaintiff victory.
A Strand of Doctrine
A restrictive covenant (or equitable servi-
tude) is an agreement between or among
property owners that obligates them to restrict
the uses to which the real property covered in
the contract will be put. That is to say, it creates
legal relations, and these relations, in turn, con-
dition the formal contours of subsequent rela-
tions with respect to the territory. For the pur-
poses of this discussion, such an agreement
creates a legal space which serves as a referent
for the social distribution of rights and duties.
It is, so to speak, a 'container' for legal meaning
(cf. Sack 1986). Like any other legal space, the
meaning so contained is amenable to interpre-
tation and vulnerable to conflicting interpreta-
tions. This ambiguity or indeterminacy is a
function not only of the language of the con-
tract itself (i.e., the legal instrument through
which the space is created) but also of the legal
doctrines used to guide interpretations (French
1982; Rose 1982).
Such agreements may be between owners
of adjoining or neighboring lots or between
successive owners of the same lot. The restric-
tion may be affixed to the deed, acceptance of
which implies acceptance to be bound by the
restriction. Or it may result from efforts of
property owners to enlist neighbors to sign a
contract that binds the owners to restrict their
property in the stipulated way. Ownership of
property in a restricted territory also confers a
'bundle of rights' such as the right to sue for
damages in the event of a breach. Covenants
may run for a definite period of time, say
twenty-one, fifty, or ninety-nine years, or, in
some jurisdictions, may be perpetual. What-
ever the duration, anyone who comes into
possession of a restricted lot is considered to
be bound by the restriction.
Historically, restrictive covenants have been
used to prohibit a wide range of actions or uses
from the territories covered. They may, for ex-
ample, forbid commercial activity, the sale of
alcoholic beverages, manufacturing, the keep-
ing of animals, etc. Before the popularity of
racially restrictive covenants, perhaps the most
 Geographies of Judgment 53
common uses to which they were put con-
cerned the prohibition of commerce in resi-
dential areas and the establishment of building
or frontage restrictions. These last were
thought to be most relevant to the adjudication
of racial disputes.
Typically there were two ways in which a
restrictive covenant dispute would be brought
before the Bench. First, an owner or group of
owners could request a judge to declare the
covenant void. That is, they sought judicial
cancellation of the restriction in order to "re-
move a cloud from the title." Or holders of one
or more of the restricted lots could bring suit
against other parties who are alleged to have
broken the agreement. That is, plaintiffs charge
that the defendants have caused the restricted
property to be used in precisely the restricted
manner. The objective sought is judicial en-
forcement of the agreement in the form of an
injunction against the restricted use.
In the case of racially restrictive covenants,
white property owners anywhere in the re-
stricted tract sought either to prevent another
white owner from completing a sale (or rental)
to a 'noncaucasian' or, if the sale had been
completed, to remove the offending noncau-
casian from their property. This usually meant
forfeiture of the property. In some cases, blacks
were also fined or, if they refused to move
from their homes, jailed (McGovney 1945;
Vose 1959).
A Second Strand of History
The earliest reported case involving a racially
restrictive covenant was Gondolfo v. Hartman
(49 F 181, 1892). This case concerned prop-
erty in Ventura, California which contained a
deed restriction prohibiting the use or occu-
pancy by "a Chinaman or Chinamen." This re-
striction was found by Federal District Judge
Ross to be in violation of the Fourteenth
Amendment. While Gondolfo seems to have
been consistently raised as precedent in de-
fense arguments, in most judicial opinions, it
was either dismissed as a, "stray case" or was
simply ignored.
After a series of unsuccessful efforts in state
courts, the NAACP brought the case of Corri-
gan v. Buckley (271 U.S. 323, 1926) to the U.S.
Supreme Court. This case was both unusual
and significant, though precisely what it ac-
complished became a matter of conflicting in-
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terpretation. The definitive legal interpretation
of Corrigan by a subsequent Supreme Court in
Shelley v. Kraemer (334 U.S. 1, 1948) was that
it accomplished nothing (McGovney 1945;
Clark and Perlman 1948; Vose 1959). As a so-
ciolegal 'fact,' however, it was quite conse-
quential.
The Corrigan case concerned a racially re-
strictive covenant in Washington, DC. Under
then existing rules, the U.S. Supreme Court
also functioned as a court of last resort for the
District of Columbia. That is, cases could be
brought to the Court on appeal if the appellant
considered that the case involved a Constitu-
tional question. The Court dismissed the case
for want of jurisdiction which, in effect, implied
that no Constitutional question was involved.
Judicial pronouncements are a kind of con-
stitutive speech act (Searle 1969; Weissbourd
and Mertz 1985; see also Austin 1962). That is,
not only do they say something, but in authori-
tatively saying, they do something (Schlag
1988). For example, in the act of making
authoritative pronouncements such as findings
and holdings, judges create law and prece-
dent, winners and losers. They open up or
close off avenues for subsequent argument.
Some judicial speech acts are relatively unam-
biguous in what they do or are intended to do,
such as sentencing someone to die. Others are
far less clear and more open to subsequent
interpretation. Of course, what it is that they
do is open to conflicting interpretations. The
Court in Corrigan, by officially saying nothing,
was construed by subsequent state courts as
having effectively said it all. In restrictive-cove-
nant cases for the next twenty-two years, state
and inferior federal courts consistently asserted
that the Court had established the constitu-
tional validity of restrictive covenants. In such
cases, there is no fact of the matter. For the
practical political purposes of transforming ge-
ographies of race, however, the argument that
restrictive covenants entailed a violation of the
Constitution was closed off for a generation.
Just as one of the spatial consequences of
Buchanan was the (formal) prohibition of mu-
nicipal segregation ordinances nationwide (i.e.,
corresponding to the territorial jurisdiction of
the U.S. Supreme Court), so one of the spatial
consequences of Corrigan was the permissibil-
ity of racially restrictive covenants over the
same space. This meant that the NAACP cam-
paign against residential segregation was effec-
tively restricted to state courts (and to the U.S.
54 Delaney
District Court in the District of Columbia). This
entailed a fragmentation of the campaign. From
here it appeared that any victories would, at
best, be restricted to the space of individual
states.
Argument, as I have been using the term so
far, should be seen as a social practice, as
something that people do. It is a creative but
highly structured interpretive or discursive
practice that is constrained by what, in a given
field or institutional situation, counts as an ar-
gument. In litigation, what counts as a valid
argument is disciplined by historically contin-
gent conceptions of what is considered to be
a distinct mode of thought known as legal rea-
soning. Indeed, judgments often take the form
of assessments of what counts as a valid argu-
ment. Judicial opinions are as frequently about
the quality of the arguments advanced by at-
torneys as they are about the facts of a case.
Legal arguments as crafted by contending at-
torneys and embodied in briefs or oral presen-
tation are complex interpretations of facts and
of law and of the relations (logical, historical,
semantic, etc.) of one to the other. Often an
argument is composed of a number of subsidi-
ary and logically independent lines of argu-
ment, each of which is intended to provide
independent grounds or justifications for de-
ciding a case in favor of the client. If none of
these are persuasive, the client loses. The con-
sequences of a favorable opinion may be dif-
ferent, however, depending on the grounds
for the decision. Typically in post-Corrigan ra-
cially restrictive covenant cases, four logically
independent lines of argument were advanced
by defendants (see Clark and Perlman 1948;
Vose 1959): (1 ) unconstitutional, (2) contrary to
public policy, (3) restraint on alienation, and (4)
changed conditions.
I would like to emphasize that each of these
arguments, if accepted, would have had a dif-
ferent range of possible spatial consequences.
In general, we might assume that opponents of
segregation (usually defendants) were trying to
eliminate restrictive covenants over the widest
possible areas. In this sense, legal argument, as
a component of political action, contains ele-
ments of spatial strategy. As will be discussed
in greater detail below, this was not the only
element of spatial strategy to be found in argu-
ments about race.
As a result of interpretations of Corrigan, the
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most spatially expansive of the four arguments
(constitutionality) was closed off. Similarly, until
near the end of this period arguments that re-
strictive covenants were contrary to public pol-
icy were also summarily rejected in the ab-
sence of explicit legislative statements to the
contrary. Moreover while some jurisdictions
did accept arguments that restrictions on own-
ership by noncaucasians represented an un-
reasonable restraint on alienation because they
restricted the number of potential buyers for
white sellers, this victory was effectively nul-
lified by the creation and deployment of an
own/occupy distinction. According to this le-
gal distinction, while covenants may not re-
strict the class of people who may own prop-
erty, they may restrict the class of people who
may use it. Therefore noncaucasians were al-
lowed to buy property in restricted tracts, but
they were not allowed to live or make their
homes there.
In virtually all of the cases reported between
Corrigan in 1926 and Shelley in 1948, the only
defense argument that was considered by
judges was (4), the doctrine of changed con-
ditions. Before proceeding to a more detailed
analysis of the application of this doctrine, I
would like to note that, of the four defense
arguments typically advanced against racially
restrictive covenants, this fourth one was by far
the one with the most restricted spatial scope.
Unlike arguments regarding constitutionality,
public policy, and restraint on alienation which,
had they been accepted in full, would have
had consequences beyond the immediate case
and over very large areas, findings of changed
conditions were place-particularistic and ex-
plicitly not generalizable to other cases. As
such, this defense was sometimes successfully
employed to let individual parties (often white
sellers) off the hook. It was virtually useless in
advancing the wider geopolitical aims of the
NAACP. Closing off all arguments save that of
changed conditions, then, can be seen in and
of itself as a spatial strategy of containment.
Interpretive Practice
I will now examine in more detail the spatial-
ity of interpretation with respect to judgments
about the applicability of the doctrine of
changed conditions. After a brief discussion of
the doctrine in its own terms, I will present an
 Geographies of judgment 55
analysis of what seem to have been basic as-
sumptions about the world that were required
in order to assess doctrinal application. Next, I
examine three cases in more detail with the
aim of investigating the spatiality of interpreta-
tion as the doctrine was actually applied.
The Strands of Doctrine and History
Entwined
The doctrine of changed conditions or
changed circumstances is a set of principles
that allows courts in equity to deny injunctive
relief (that is, to decline to enforce a contract),
if, in the judges' opinion, conditions have
changed in such a way that enforcing the terms
of the contract would do more harm than good
to the parties involved in the contract The
variant known as "changed conditions in the
neighborhood" arises specifically in cases deal-
ing with restrictive covenants. (See annotations
in 54 A.L.R. 812 and 4 A.L.R. 2d 1111 for the
period under discussion.) In these cases, it is
not simply that one or more parties to the
agreement find themselves in unforeseen situ-
ations, it is that the world itself-or a small but
significant portion of it-has undergone the
relevant change. Moreover, it is a change that
the defendants are deemed not to have been
instrumental in bringing about.
For example, consider a covenant among
homeowners not to use their property for
commercial purposes. Consider next that, at
some time subsequent to the agreement but
prior to its expiration, a liquor store and a bar-
ber shop are opened up in the vicinity. Next,
a mortician buys one of the restricted lots. The
contract prevents her/his establishing a funeral
home on the premises. Should she/he attempt
to do so and should this attempt be legally
challenged, it is likely that she/he would assert
a defense of "changed conditions." That is, the
attorney would claim that conditions in the
world had changed to such an extent that the
purpose of the contract is defeated and en-
forcement rendered inequitable. Whether the
claim is accepted, of course, is another matter.
'Equity' in the Anglo-American legal tradition
is supplemental to 'law,' strictly speaking. It is
"justice administered according to fairness"
(Black's Law Dictionary). As such the applica-
tion of an equitable doctrine is case-specific
and necessarily context-dependent. Unlike, for
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example, constitutional or statutory interpreta-
tion, a ruling in one case is considered to have
no bearing on other cases. But the rules of
application are derived from and contribute to
common law and so, to that extent, a ruling in
one case may be interpreted as being relevant,
though not controlling, in other cases. In the
words of California Supreme Court Justice
Schauer, "subject to certain broad principles
each case of this character must be determined
upon the facts peculiar to it" (Fairchild v.
Raines, 151 P2d. 264, 1944).
Assessment of doctrinal applicability is a
form of categorical interpretation. That is, the
immediate objective is to fit a set of facts,
whether 'social facts' or internal doctrinal facts,
into a preexisting categorical scheme. Fre-
quently this is a dichotomous scheme. The
conceptual mechanics of interpretation can be
structured by responses to questions that may,
or perhaps must, be answerable with a Yes or
a No. This section examines some of the ques-
tions that appear to have been required in in-
terpreting the applicability of the doctrine to a
particular case: to a particular place. More im-
portant, it examines the categorical scheme
that compelled the sense that just these ques-
tions and not others were required, that just
these answers counted as appropriate re-
sponses. Finally, it examines the way in which
the categorical scheme was mapped to the
world so as to yield the appropriate answers.
Mechanics of Doctrinal Application
Raising the defense of changed conditions
requires a finding of fact. It requires judges to
answer questions like: What is this place like?
How has it changed (or not)? What explains
the change? Only by providing answers to
questions like these could it be determined
whether the doctrine applied to the case or
whether an injunction would be issued. Raising
the defense, then, required a historical geo-
graphic interpretation. Like all such interpreta-
tions, it required an implicit theory by which
relevant facts could be distinguished from ir-
relevant facts and by appeal to which claims of
causation could be justified.
At first glance, application of the doctrine of
changed conditions would appear to have
been a relatively straightforward affair. And no
doubt it was so considered by those whose job
56 Delaney
it was to apply it. All that seemed to have been
required was a certain amount of evidence
concerning what conditions were at a particu-
lar time in the past (say, at the time the cove-
nants were established) and evidence con-
cerning conditions at some subsequent period
(say, at the time of the alleged breach). One
simply had to compare the two pictures and
find them to be sufficiently different such that
the purpose of the covenant is defeated and,
therefore, enforcement rendered inequitable,
or sufficiently similar such that the restriction
should be enforced. The idea, I think, is that it
was obvious.
It also seemed fairly clear to many observers
that a restrictive covenant was a restrictive
covenant, whether it applied to kinds of build-
ings, the uses to which they were put, or who
could own them. The same principles of inter-
pretation that controlled the application of the
doctrine of changed conditions held in any
case. The principle seemed to have been this:
just look. Indeed, judges in these cases say
things like "a glance at the neighborhood
shows . . ." (Hundley v. Gorewitz, 132 F.2d 23,
1942), or "a mere glance at the present situ-
ation demonstrates . . ." (Grady v. Garland, 89
F.2d 817, 1937).
But interpretation also required some spe-
cification of what counted as 'conditions' and
what counted as 'change.' Significantly, the task
was made easier because what, specifically, the
judge had to look for was specified in the con-
tract. In the case of racial covenants the con-
dition was blackness. Just as a neighborhood
was obviously-empirically-commercial or
residential, so was a neighborhood clearly
either Negro or Caucasian. Similarly, what
counted as 'change' was also implied by the
contract. Change meant changing from white
to black.
The obvious point here is that categorization
of similarity or difference, and, hence, change,
was contingent on the unquestioned categori-
cal scheme of Negro and Caucasian as mutually
exclusive attributes of definable areas. There is
no notice taken of the fact of integration or of
'mixed' neighborhoods. There is, however, dis-
cussion concerning precisely how many Ne-
groes it takes to make a district 'definitely col-
ored.' Phrased somewhat differently, judicial
interpretation of changed conditions took ra-
cial segregation as a given, as something that
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goes without saying. Given the belief in the
essential immutability of what was considered
to be a fact, moral, political, and legal questions
concerned only the form that it would take.
Two points need to be stressed here. First,
in determining the applicability of the doctrine
of changed conditions, judges assumed as
given precisely that which, in the larger social
political conflict of which the cases were part,
was being challenged: racial segregation. The
finding of fact that was required by raising the
defense of changed conditions only admitted
two possible facts: either the neighborhood in
question was 'definitely colored' or it remained
'solidly white.' The facts had to fit the categori-
cal scheme.
Second, this assumption involved a spatiali-
zation of social life that drew attention away
from human beings and focused instead on
imagined territories and boundaries. This geo-
political language is explicit in some cases or
implicit in the geopolitical metaphors of 'Negro
penetration,' 'invasion,' or 'infiltration' to be
found in virtually all cases of this period. Some-
times, as in Fairchild v. Raines (143 P.2d 528,
1944) and Lettreau v. Ellis (10 P.2d 496, 1932)
judges focused on the territories. Sometimes
the emphasis was on the boundary (Clark v.
Vaughn, 292 P. 783, 1930) and whether it was
a "dividing line" and a "complete barrier"
(Grady v. Garland, 89 F.2d 817, 1937) or, per-
haps, "an unnatural barrier" as in Hundley v.
Gorewitz (132 F.2d 23, 1942) and Gospel
Spreading Association, v. Bennetts (147 F.2d
878, 1945).
In actual practice, then, judicial interpretation
of geographies of race involved: (1) indicating
the relative location of Black and White territo-
ries; (2) indicating precisely where the bound-
ary that defined and separated these territories
was located; and (3) assessing the stability of
the boundary. This last point was crucial, for if
the boundary was found to be moving, the
doctrine might be applied. It seems, then, that
the validity of the contract was dependent on
the stability of the boundary.
I would like to emphasize that these territo-
ries and boundaries were thought to exist, as
things, apart from interpretation. In interpreting
changed conditions in terms of a dichotomous
categorical scheme, and given the belief in the
existence of white and black zones separated
by a boundary, a central geographical question
 Geographies of judgment 57

became "has the boundary moved?" and not changed conditions, on where, exactly, the
"has it disappeared?" or even "what bound- Negroes were located. This, in turn, depended
ary?" To question the existence of the line was on the spatial technique employed in "finding"
to question the zones and, therefore, to ques- them.
tion the immutability of segregation.
Thus, the categorical scheme of Black and
White was read onto the physical world. If ra- Judicial Construal of Space
cial segregation was a given, immutable fact,
the political question that animated assess- In this section I examine variation in judicial
ments became: "Should the Negro District be techniques of spatial analysis. More specifically,
allowed to expand or not?" "The choice," I look at judicial discretion in the spatial scope
of change and therefore of relevance. Where
wrote California Supreme Court justice Traynor
in Fairchild v. Raines (151 P.2d 260, 1944) "lies the previous sections emphasized conflicting
between the continuation of such conditions interpretations of changed conditions in 'the
and expansion of urban negro districts." The world,' so to speak, this section looks at the
mechanics of the doctrine of changed condi- other side of the mapping procedure and fo-
tions worked in such a way that the answer cuses on conflicting interpretations of the doc-
turned on whether or not, as an empirical fact, trine of changed conditions. It examines the
it had already expanded. This is what changed spatiality of a rule. The root question here was
conditions meant. whether judicial scrutiny should be confined to
It is important to stress at this point that the the covenanted tract itself or whether it should
fact of litigation in an adversarial legal system embrace the neighborhood or surrounding ter-
assures that there will be conflicting interpre- ritory. Clearly, if the space of relevance is re-
tations of doctrine, precedent, the meaning of stricted to the tract, then it will be less likely
legal instruments, rules, standards, history, that conditions will be found to have changed
mental states, etc. In cases that require geo- unless as a result of prior uncontested
graphical interpretation, especially those in breaches. I will refer to the technique of re-
which the outcome turns on a geographical stricting attention to changes inside the tract
interpretation, we should also expect conflict- itself as localization, and the more embracing
ing construals of social geographies. Where technique that considers changed conditions
defendants purport to see change, plaintiffs areoutside of the tract, e.g., the neighborhood,
likely to deny that change has occurred. But the community, etc. as regionalization.
judges also disagree among themselves and With respect to variation and discretion of
present their own conflicting interpretations. technique, I should mention that, first (for the
This can most clearly be seen in dissenting above stated reason) decisions, i.e., outcomes,
opinions and in appellate decisions that re- turned on the spatial technique employed by
verse lower court rulings (thereby correcting the majority. That is, as the outcome was based
the geographical interpretations of other on the applicability of the doctrine of changed
judges). conditions, so assessment of the applicability
Indeed, not only do we find conflicting in- of the doctrine depended on the spatial scope
terpretations of geographies, but we find dis- and focus of change. Second, both appellate
agreement over the spatial technique em- reversals of lower court rulings and appellate
ployed in assessing the meaning of race dissents were explicitly based on disagree-
boundaries. We find disagreement over spe- ments over the appropriate spatial scope of
cifically where one looks for the changed con- reference and relevance. Last, variations and
ditions. I mentioned above that the validity of inconsistencies in techniques generated con-
the contract depended on the stability of the troversy in contemporaneous legal scholarly
boundary. However, some judges operated commentary. It was, it seems, a big deal (see
under the assumption that the conditionality Gardner 1941; "Equitable Servitudes-De-
was precisely the reverse: that the stability of fenses . . ." 1931; "Change in Character of
the boundary depended on the validity of the Neighborhood . . ." 1932; "Equity-Restrictive
contract. Which view the judge took was re- Covenants against Alienation" 1937; "Real
lated to where he or she looked for the Property-Cancellation of Restrictive Covenant

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58 Delaney
." 1937; "Negro Restrictions and the
'Changed Conditions'.. ."1940).
Clark v. Vaughan. One of the earliest
changed-conditions cases, Clark v. Vaughn
(292 P. 783, 1930), included a strong dissent
that directly attacked the majority's strategy of
regionalization. This case involved a restrictive
covenant regime in Kansas City, Kansas. In
1923 a covenant was established which was to
be in force for fifteen years. Among the parties
to the contract were Grace Clark and the par-
ents of Ethel and D. W. Vaughn. In 1927 the
Vaughns agreed to sell their lot to William
Boone. Boone, a black man, took possession
of the property and Clark sued. The trial judge
refused to issue an injunction, and Clark ap-
pealed to the Kansas Supreme Court. While I
have no evidence of direct involvement by the
NAACP in this case, it is significant that the
Vaughns and Boone were represented by dif-
ferent attorneys.
The specific lots in question were spatially
separated from the remainder of the tract by
Quindaro Blvd.2 Kansas Supreme Court Justice
Hutchison found the relative location of the lots
to be a material fact. In his discussion of
changed conditions, he stressed, among other
things, the fact that two formerly Caucasian
churches in the neighborhood had been "sold
to and are now used by Negroes" (785), and
that attendance and employment in the neigh-
borhood "school for whites" had been rapidly
decreasing. Hutchison then set the boundary
of the races down the middle of Quindaro
Blvd. and held that conditions south of the
boulevard had changed to such an extent that
prohibiting the white defendants from selling
to blacks "practically confiscates their prop-
erty," (786) and only "serves as a protection to
the property of the plaintiff in the solid district
north of the boulevard" [emphasis mine]. Thus
"general encroachment . . . in the immediate
vicinity of defendants' property" and "unequal
reciprocal protection [due to the directionality
of the moving boundary] would make the en-
forcement of the covenant under the changed
conditions very burdensome and inequitable
to these [white] defendants" (786). The trial
judge's interpretation that conditions around
Quindaro Blvd. had changed was therefore
affirmed, and William Boone was allowed to
keep his home.
In dissent, Justice Jochems acknowledged
that the boundary was moving. That was pre-
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cisely why the contract should be enforced.
Moreover, he also recognized that the specific
lots in question were spatially separate. That
was precisely why they should not be legally
severed. In localizing the space of change and
relevance, i.e., confining it to the space spe-
cified in the contract, Jochems noted that there
was nothing the covenanters could do to "pre-
vent colored people from acquiring all the
property around them right up to the boundary
of the properties involved in the contract"
(787). He concluded that, "the fact that colored
people were moving in the direction of the
property must have been the moving cause of
the contract. What these people who entered
into the contract had in mind," he wrote, "was
not to prevent colored people from surround-
ing them, but to prevent the restricted prop-
erty from being used or occupied by people
of that race."
An important fact for Jochems was that the
changes were "not such as occurred in the use
of the property embraced in the contract. They
[were] changes occurring on property outside
of the contract over which the parties had no
control." Thus to deny enforcement is to sub-
vert the collective will embodied in the con-
tract. Jochems's second basic point was that
"[d efendants' property, although lying across
the street from the remainder of the property
involved in the contract, served as a buffer for
plaintiff's property. It kept Negroes just that
much further away from plaintiff's property."
And finally, relying on a theory of contract
which sees in it the embodiment of the parties'
will and does not look kindly on mistakes, Jo-
chems noted that the defendants had entered
into the contract understandingly. "It may well
be argued," he wrote, "that the contract was
of greater advantage to plaintiffs than to defen-
dants, but if defendants made an improvident
contract, that is no reason why they should be
relieved from it."
In this case the legal-spatial severance of Wil-
liam Boone's home from the remainder of the
restricted tract and the redrawing of the
boundary down the middle of Quindaro Blvd.
is clearly active participation posing as neutral
observation. It should be stressed, however,
that had Jochems succeeded in persuading a
majority to see things his way, it would also
have been participation posing as observation.
Further, the categorical scheme used to inter-
pret (construe) and map (construct) the legal.
 Geographies of judgment 59
social relational meaning of this part of the
world would have been the same: Negro/Cau-
casian.
Gradyv. Garland. A more explicit discussion
of the spatial scope and focus of changed con-
ditions is to be seen in Grady v. Garland (89
F.2d 817, 1937) in which plaintiffs sought re-
moval of restrictions on property located in
Washington, DC. In Grady, owners of six of the
eight restricted lots wanted to extinguish the
perpetual restrictions because of changed con-
ditions. Garland, owner of one of the remain-
ing two lots, requested a dismissal. The lower
court granted the request, and Grady appealed
to the U.S. Court of Appeals for the District of
Columbia. Associate Justice Van Orsdel local-
ized the dispute and held that, as no change
had occurred within the restricted tract, then
no change had occurred of which the court
should take notice. First he set the boundary
separating the white neighborhood from the
black down the middle of First Street. Then he
asserted that,
The restriction is for the property to which it ap-
plies and is not affected by similar conditions
which may arise in adjoining property. The object
of the restriction here was to prevent the invasion
of the restricted property by colored people, not
the invasion of property surrounding it (819).
Placing a high value on the sense of security
of those who had come to rely on the contract,
and stressing the protective value of the tract
to the white neighborhood to the east (cf. Jo-
chems in Clark, above) Van Orsdel wrote,
A mere glance at the present situation demon-
strates the protection which the restriction is to the
defendants Murgia and Garland. It furnishes a
complete barrier against the eastward movement
of colored population into the restricted area-a
dividing line (819).
Note that for Van Orsdel, the beneficiaries of
the restriction are not simply Murgia and Gar-
land, but the residents of the white neighbor-
hood to the east. Thus the stability of the
boundary is seen to depend on the validity of
the contract. And this, in spite of the fact that
a majority of the signers of the contract wanted
to abolish the restricted tract. Van Orsdel de-
nounced the strategy of regionalization and
denied the relevance of changes outside the
tract by noting that "all that would be necessary
to defeat such a covenant would be the settle-
ment of a few colored families in the immediate
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vicinity of the restricted area." It is of interest
that he did not cite or seek to distinguish the
instant case from Clark, but relied almost en-
tirely on precedents from commercial or build-
ing restriction cases.
While changes in the "surrounding territory"
were irrelevant, Van Orsdel did find that
changes at a larger spatial scale, specifically
with respect to "the growth and expansion of
the National Capital and its constant tendency
to change in the use and occupancy of prop-
erty" were relevant (820). Indeed, such
changes provide greater justification for en-
forcement by providing residents with security
of reliance.
Associate Justice Stevens directed his dissent
squarely to the scope and focus question. He
noted the "well-established rule" that "changes
within or without an area covered by restrictive
covenants" should be considered in assessing
the applicability of the doctrine. Localizing the
spatial frame of reference and relevance was
"necessarily predicated upon the proposition
that a person seeking to remove a covenant
must show that he has breached it himself and
that the person for whose benefit the covenant
runs has ignored that breach. I find nothing in
the authorities warranting this." Finally, citing
and relying on the Clark decision, Stevens
also argued that cases concerning building re-
strictions and commercial uses had "no relation
to covenants against colored occupancy"
(820).
In this case we again find conflicting inter-
pretations of the spatiality of a rule and conflict-
ing interpretations of context. Van Orsdel was
not simply recognizing or finding a dividing
line; he and the concurring justices were in-
venting that line. Again, consider the counter-
factual. Had Stevens been writing for the ma-
jority, the line would not have been found "at
a mere glance." It would not have been
"found" at all.
Fairchildv. Raines. A 1944 case from South-
ern California, an area where restrictive cove-
nants flourished, provides additional insight
into these judicial spatial strategies (Fairchild v.
Raines, 143 P.2d 528). This case dealt with a
definable subdivision, The Palisades, in
Pasadena. Only thirty-five (or possibly only
twenty-three) of its sixty-nine lots were cov-
ered by restriction, and these thirty-five lots
were not contiguous. Plaintiffs sought to enjoin
Ross and Helen Raines from using, occupying,
60 Delaney
or residing in the house they had purchased
without actual knowledge of the restriction.
The trial court ruled for the plaintiffs and the
Raines appealed. Judge McComb, writing for
the California Court of Appeals, affirmed.
McComb found that the doctrine of changed
conditions was inapplicable because, "there
had been no change in Negro occupancy as
to any of the lots described in the agreement
above set forth except in the single instant of
lot 43 which is the subject of the present con-
troversy" (531). Because California was one of
the jurisdictions in which the own/occupy dis-
tinction was held to exist, the Raines were not
ordered to forfeit their property. They were,
however, ordered to leave their home and wait
six years for the restriction to expire before
moving back in.
The Raines appealed to the California Su-
preme Court (151 P2d. 260) (at which point
they were transformed from "Negroes" into
"colored Americans," 261). The Los Angeles
branch of the NAACP filed an amicus brief on
their behalf. Amici briefs were also filed on
behalf of the Fairchilds. The Supreme Court
reversed the lower court's rulings by finding
that: first, conditions had changed; second,
that the trial court had erred in failing to make
findings of fact resolving the issues raised by
the defense of changed conditions; and third,
that this failure was the direct result of confin-
ing analysis to the lots described in the con-
tract. That is, the basis of the reversal was judgeto the injunction.
McComb's inappropriate localization.
Justice Schauer began his analysis by stating
that "the number and relative locations of the
lots covered and not covered by the agree-
ment are material" (262). Quoting from testi-
mony of neighborhood residents that some
parcels in the neighborhood had "become
substantially surrounded . . . on three sides by
Negroes," he found that that part of Pasadena
was now "more suitable for Negroes than for
white people." Granting that "the precise pur-
pose of the covenants is to avert changes in
the restricted territory, not in the surrounding
neighborhood," and further, "that there had
been no change in 'Negro or non-Caucasian
occupancy' of the lots included in the agree-
ment until the occupancy by defendants
Raines of lot 43," Schauer determined that
these facts, while material, were "not necessar-
ily controlling here" [emphasis in original]
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(265). He then addressed the scope and focus
question directly:
In an area as small as that involved in this case ...
and where the restricted lots do not form a single
contiguous group, it would not seem essential that
the occupancy of any such restricted lots them-.
selves should have undergone the critical change
if it has occurred in the very neighborhood of
which they are a contiguous part geographically,
and apparently in social aspects [emphasis in origi-
nal].
More to the point, he wrote, echoing Stevens's
dissent in Grady,
Indeed it is obvious that a change in the race char-
acter in the neighborhood, without violation of the
covenants of the agreement, could only occur
through a change in the occupancy of neighboring
lots not included in the agreement [emphasis in
original] (265).
While Schauer did not cite Clark v. Vaughn,
he did distinguish the case at the bar from
Grady v. Garland. Specifically, he did this by
citing the "complete barrier . . . dividing line"
passage quoted above. Schauer found that "in
the cases before us there is no 'complete bar-
rier'," and further that "not only the 'surround-
ing neighborhood' but the very tract and block
of which the restricted areas are a part have
been invaded." In sum, "since the lots covered
are not a contiguous group and do not consti-
tute a complete barrier or dividing line" (266),
then the plaintiffs do not have an absolute right
In a concurring opinion, Justice Traynor
agreed that the trial court had failed to provide
an adequate basis for determining changed
conditions. But he devoted the bulk of his
opinion to a discussion of policy questions and
the desirability of expansion of "Negro dis-
tricts," as discussed above.
In Fairchild, then, the court provided itself
with a space of relevance that was larger than
the parcel and the tract, yet seemingly more
identifiable than the neighborhood. This space
was The Palisades. It should be noted that this
was merely fortuitous. It appears from testi-
mony and from maps that there was nothing
that physically or legally distinguished The Pali-
sades from the rest of Pasadena. It was not
spatially isolated or walled off from the sur-
rounding community. It was simply developed
as a unit and subdivided twenty-five years ear-
lier. It had no legal meaning in and of itself and
 Geographies of judgment 61
existed only as a name. Still the boundary of
The Palisades, Washington Street, served as a
convenient boundary to a space of relevance
within which Justices Schauer and Traynor
were able to find changed conditions.
In this case we see the California Supreme
Court erasing the space that the district court
had participated in constructing. We see differ-
ences in interpretation concerning both doc-
trine and geography and concerning what one
has to do with the other. We see conflicting
geographies of judgment both in the sense of
conceptions of spatiality that inform judicial in-
terpretation, and in the sense of the sociospa-
tial consequences of these interpretations. It
should also be noted that while contemporary
observers might applaud the reversal of the
District Court's ruling, both Schauer and
Traynor were still using the same categorical
scheme of Negro/Caucasian and were still par-
ticipating in the mapping of racism onto the
landscape of Southern California.
Discussion
I have argued that judges could manipulate
the spatiality of a rule in order to 'find' change
or in order to virtually insure that the relevant
'conditions' would not be found. I have also
demonstrated how claims about the spatiality
of a rule justified interpretations about places,
and hence, justified the sociospatial conse-
quences of these interpretations. Earlier I dis-
cussed other elements of spatiality and spatial
strategy to be seen in legal argument. I showed
how attorneys presented different lines of ar-
gument, each of which would have had a dif-
ferent range of spatial consequences had it
been accepted, and how judges rejected all
but the most spatially restrictive of the four
lines of argument commonly advanced. These
can all be seen as spatial maneuvers within an
on-going geopolitics of race and racism. Legal
interpretation, in these cases, was simply one
form of political action. The point of these ac-
tions was to shape actual sociospatial relations.
One way or another, they were consequential.
Real people were forced to leave their homes,
were excluded or expelled from large sections
of the cities, were compelled to pay costs or
damages, or they were not. judicial interpreta-
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tions of the relations between geographies and
social life were not idle speculations.
One point of this demonstration is to pro-
vide support for the claim that while interpret-
ers purported to be passively observing em-
pirical geographies of race from a distance, so
to speak ("a mere glance . . . " etc.), they can
more accurately be described as active partici-
pants in the construction and revision of geog-
raphies of racism from 'inside.' Regardless of
whether judges chose to reinforce (as in
Grady), modify (as in Clark) or erase (as in
Fairchild) the racist spaces created by the
covenanters, regardless of whether they chose
to contain or expand 'Negro districts,' they
acted from within. From this perspective, there
is no point 'outside' of social life, history, or
geography from which judges can gaze at so-
ciety. More to the point, the legal 'realm' is not
a metaphorical space removed from politics, or
from the geopolitics, of everyday life.
While not put in these terms, this view was
eventually adopted by the U.S. Supreme Court
in Shelley v. Kraemer (334 U.S. 1, 1948) in
which it was determined that there was, after
all, something about the racially restrictive
covenants that violated the U.S. Constitution.
In Shelley, the sociolegal practice of entering
into racist covenants and creating racist spaces
was held to be permissible. What was not per-
missible was judicial enforcement of these con-
tracts. This was determined to be a violation of
the equal protection clause of the Fourteenth
Amendment. That is, enforcement was consid-
ered to constitute prohibited state action. In so
deciding, the Supreme Court accepted the
NAACP's argument that the relevant state of
affairs included what judges were doing. Thus
my argument about judicial participation is, in
a sense, old hat. While it is beyond the scope
of this paper to pursue the point, it should be
recognized that the people who participated
in this determination were also participating in
the construction or revision of inherited geog-
raphies of race and racism.
Conclusion
I would like now to return to some of the
issues that were raised in the beginning with
respect first to legal geographical theory, and
then to understandings of the spatiality of social
62 Delaney
life more generally. In my discussion of pro-
grammatic works in critical legal geography, I
mentioned two themes prominent in the litera-
ture which have shaped my treatment of the
doctrine of changed conditions. These were a
pronounced skepticism toward the artificial
distinction between law and society and an
emphasis on context as a corrective to ab-
stract, formalistic legal thought. While I have
focused on official judgments, it should be
clear that judgment and legal-geographical in-
terpretation infused many of the practices pre-
supposed by these cases, from the drawing up
of contracts to the compliance with official de-
cisions. Represented in the story I told were
real people in real places looking for homes,
consulting realtors, taking street cars to unfa-
miliar neighborhoods, making practical assess-
ments and calculating risks; petitioning neigh-
bors, consulting lawyers, sending threatening
letters, terrorizing and resisting terror, staying
put or moving out; persuading clients to stay
in the case, persuading judges that conditions
had or had not changed, failing to be per-
suaded that the spatial scope of the doctrine of
changed conditions extended beyond the
covenanted tract. One strong element that
unites law and society, of course, is racism. just
as the drawing up of racist contracts and the
threat of suits exemplifies law in society, so the
racism expressed in the decisions themselves
exemplifies society in law. The suspension of
the law/society distinction allows us to see
judges as social actors, doctrine and legal cate-
gories more generally as social artifacts, and
legal interpretation as the social practice by
which these categories are constructed and
modified. It allows us to examine legal dis-
course as simply one social discourse among
others, one way of talking about social life and
power among others. As a way of talking about
and justifying the exercise of power in particu-
lar situations, legal discourse is a political re-
source that may be employed in attempts to
restructure or maintain the desired conditions
of social life, including spatial or geographical
conditions. The objective of the CLS critique of
the law/society distinction is to socialize, and
so politicize, understandings of legal phenom-
ena.
The issue of context raises other questions.
Like the critique of the law-society distinction,
examination of the decontextualizing effect of
legal discourse is a staple feature of critical legal
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studies. In his article, "Unfreezing Legal Reality:
Critical Approaches to Law," Robert Gordon
writes:
legal discourses often produce such seriously dis-
torted representations of social life that their cate-
gories regularly filter out complexity, variety, irra-
tionality, unpredictability, disorder, cruelty,
coersion, violence, suffering, solidarity and self-
sacrifice (1987, 200).
In a word, what is filtered out is context. Part
of this, of course, is geographical context. As
we have seen, legal discourse can also pro-
duce distorted representations of the spatiality
of social life. That is, not only does it filter
geography out, but the geography that remains
is ideologically skewed. One point of the CLS
critique of decontextualization is that judges
actually justify violence, cruelty, and suffering
by basing their determinations on claims about
relations between frozen, reified legal catego-
ries instead of relations among actual, full, com-
plex human beings who bear the burdens or
benefits of being so categorized. 'Equity' in
such cases still means fidelity to the imagined
essential traits of these categories and not nec-
essarily fairness to real people in particular situ-
ations. We have also seen that determination
of the formal relations among abstract catego-
ries (buyer, seller, co-covenanter, Negro), and
so the legal constitution of these social rela-
tional positions, seems to have required a
rather detailed analysis of real neighborhoods
and the microhistorical geographies of real
places. In these cases, as in others, it is not a
question of contextual vs. noncontextual or ab-
stract vs. concrete. Rather,'it is a question of
which context among available competing
plausible alternatives. This, of course, involves
asking who gets to impose this context rather
than that, and why. It is a question of the power
to draw lines: categorically, socially and spa-
tially. It is a question of the politics of interpre-
tation.
The point here is that context-spatial, social,
historical, legal, etc.-is never given; it is always
created as part of interpretive practice. Such
contextualizations are often purposive. If con-
tending interpretations are directed toward the
reshaping of relations of power, then they are
by definition political. To the extent that they
unquestioningly rely on strongly contested no-
tions of 'race,' 'rights,' 'property,' etc., they are
unquestionably ideological. From this it follows
that 'geography' is not simply a set of facts
 Geographies of Judgment 63
excluded from a legal account of a state of
affairs. Rather, the meaning of sociospatial phe-
nomena, including their status as 'facts,' may
be as strongly contested as anything else.
The theoretical socialization and politiciza-
tion of legal practice and legal thought that
characterizes CLS and, by extension, critical
legal geography has direct implications for the
retheorization of human geography advocated
by Soja (1985) and others. Most significantly, it
opens up a neglected but important range of
social practices through which geographies of
power are inherited, revised, and bequeathed
intergenerationally. Further, it does so in a way
which does not rely on artificial distinctions,
whether society/space, law/society, or
mind/world. In the cases examined in this pa-
per, the original covenanters, subsequent
plaintiffs and defendants, attorneys, judges,
and members of grass-roots and national po-
litical organizations were all participating in the
reconstruction of inherited social geographies
of power. Also at issue were conflicting inter-
pretations of the spatial constitution of social
relations and relational identity. Property rela-
tions, contractual relations, race relations, and
political relations between state and citizen
were all fixed with reference to (conceptions
of) space. In other words, in these cases social
relations were constituted simultaneously both
spatially and legally. With respect to the doc-
trine of changed conditions, legal and spatial
interpretation, and therefore, legal creation and
geographical construction, are fused. 'Mean-
ing'-legal meaning, the meaning of social-re-
lational power, the meaning of race, of 'Negro,'
of 'Caucasian'-is mapped to the physical land-
scape.
A critical legal geography also opens up im-
portant questions about the relationship of ide-
ology and reification to the production of
space. If the Lefebvrian image of space being
"filled with ideology" is attractive, then perhaps
one of the most significant contributions of a
critical legal geography to analyses of the spa-
tiality of social life is in drawing attention to
some of the sites within social life where this
filling is attempted or provisionally accom-
plished. I have tried to show part of how this
is done in practice. I would contend, however,
that space is filled with-or constructed ac-
cording to-conflicting and contradictory ide-
ologies. Ideologies of property, the state, race,
contract, legal practice, and history, are all
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mapped uneasily onto the world. In particular
cases, racism trumped property; in others
property trumped contract. Reading these
ideological landscapes one way rather than an-
other, from one perspective rather than an-
other, may contribute to their reproduction,
modification or transformation-the ideologies
along with the landscapes. The official legal
arena is one of many sites in which this reading
takes place. Judicial construction is therefore a
site-or moment-of sociospatial production
(Lefebvre 1979; Castells 1983). Continuing the
industrial metaphor, this paper has focused on
practitioners of "the manufacture of legal de-
terminacy," elucidated by Clark (1985), as they
reworked geographies of power and worked
their interpretations onto the world. I hope to
have shown that these geographies are am-
biguous and unstable, that they are vulnerable
to conflicting interpretations, and that there is
no once-and-for-all. Nevertheless, geographies
of power cannot easily be interpreted away.
Authoritative interpretation is a function of in-
stitutionalized power, and the judges discussed
in this paper were agents of the state. In a very
real sense, what a judge says about law is an
instance of what the state says about itself.
It should also be admitted that the kinds of
political disputes illustrated by the boundary
skirmishes between localizers and regionaliz-
ers with respect to the applicability of the doc-
trine of changed conditions result-at best-in
exceedingly marginal 'transformations' (cf. Ko-
bayashi 1990, 451). In this light, the post-Cor-
rigan closure on more expansive arguments
was perhaps the decisive move of the period.
Further, recognition of the racial geopolitical
aftermath of Shelley (suburbanization, metro-
politan fragmentation, exclusionary zoning,
and 'urban renewal') demonstrates with stun-
ning clarity how even "great victories" can be
swamped by the dynamics of ongoing racist,
statist, capitalist 'reality.' Indeed, whether one
views Shelley, like Buchanan before it, as a
victory or a sham, a break with the past or the
same old story, is itself a political judgment (Bell
1980, 1987). It is a political judgment about law
and about the utility and limitations of legal
strategy as a component of political strategy. It
is a political judgment which plays into how,
generally or specifically, we assess the appar-
ent contradiction that law is at once constitu-
tive of social reality and yet frequently marginal
to substantive outcomes.
64 Delaney
Acknowledgments
I would like to thank Tim Cresswell, John Esser,
Rod Francis, Drew Ross, Robert Sack, Eric Sheppard,
David Trubek, the Editor, anonymous reviewers, and
especially Michele Emanatian for comments, criti-
cism, and advice on the various versions that this
paper passed through before it reached its present
state. Any and all remaining errors are mine alone. I
would also like to express my gratitude to the Institute
for Legal Studies at the University of Wisconsin-Madi-
son for financial assistance during the initial stages of
research.
Notes
1. See Clark (1990) for a brief useful overview ad-
dressed to geographers, Singer (1988) for a longer
overview of prominent contemporary theories,
and Herget (1990) for a more historical treatment.
2. While it is recognized that maps might facilitate
the readers' understanding of both the claims
made by judges and my claims about what they
were doing, I think that they would also, in a
sense, detract from my larger argument: that there
was, in fact, no fact of the matter. My point is not
to argue with judges that 'conditions' had or had
not 'changed.' It is to draw attention to the ways
in which ideological conceptions of space can in-
fuse legal thought itself and how legal pronounce-
ments informed by such conceptions contribute
to the shaping of social geographies. More impor-
tant, many of these events, including the acts of
'mapping,' whether cartographically or verbally,
constitute moments in the legal and social inven-
tion of the historical character called 'The Negro.'
For elaboration of this point see Field (1982) and
Jackson (1987).
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