Andrew Allard ‘25
Executive Editor
In Taft v. Hyatt,[1] an attorney and members of a Masonic lodge both claimed entitlement to an award for the arrest or information leading to the arrest of a Black physician, Robert E. Smith. Smith had met with the attorney, William Hyatt, as a prospective client. But when the two failed to reach an agreement, Hyatt told the county attorney where to find Smith. Just an hour later, lodge members Clarence Glass and Thomas Edwards—unaware of Hyatt’s actions or the award for Smith’s arrest—helped the police bring Smith to prison. The court concluded that none of the parties were entitled to the award, because Hyatt’s information did not lead to Smith's arrest and because the lodge members who were unaware of the offer could not have accepted it.
Law students might be familiar with this case—a classic illustration of offer and acceptance—or at least others like it. But when Taft v. Hyatt appeared in a 1972 contracts casebook, it left out a key fact: The Masonic lodge whose members helped arrest Smith was a “colored” Masonic lodge; they were trying to protect Smith from a lynch mob.
Pictured: Professor Dylan C. Penningroth gives his talk in Caplin Pavilion
Photo Credit: Andrew Allard '25
As legal historian Professor Dylan C. Penningroth of the University of California, Berkeley explains in his new book, Before the Movement: The Hidden History of Black Civil Rights, omissions like this were part of a pattern that excluded Black lives from the history of American law. Under pressure to incorporate Black Americans in their curricula, top law schools in the 1970s began equating civil rights with minority status. “They implied that Black people encountered law meaningfully only in criminal justice, voting, the workplace, schools, and public accommodations—that is, in cases that were ‘about race,’” Penningroth explained. Indeed, one of the few contracts cases that did acknowledge the involvement of Black litigants was Williams v. Walker-Thomas Furniture Co.,[2] a case dealing with the doctrine of unconscionability.
Penningroth was careful not to malign legal historians for their framing of Black history. As Penningroth explained, Black history as a modern field of study grew out of the 1960s Civil Rights Movement. “Many leading Black historians came into the field profoundly shaped by their experiences as activists in the 1960s. Some of them explicitly said that their scholarship was a continuation of the struggle for Black freedom . . . Movement-centered scholarship is as urgent and necessary today as it was in the 1960s.”
But Penningroth argued that focusing exclusively on how white supremacists weaponized the law against Black Americans has made legal historians miss how Black Americans shaped legal doctrine by using courts to their advantage. “It has helped make Black history almost synonymous with the history of race relations, as if Black lives only mattered when white people were somehow in the picture.” And the Movement-centered framing has also placed a “moral burden on African-American history that few other scholarly fields have had to carry.”
In reality, Black Americans had been using the law long before the Civil Rights Movement to marry, divorce, care for their elders, own property, and run their churches and businesses. Penningroth’s research revealed that there were more lawsuits involving Black litigants in the Jim Crow era than during Reconstruction. And while Black Americans were plaintiffs less often than whites were, the gap was narrow. At times, such as in Illinois in 1892, Blacks were overrepresented as plaintiffs. Black litigants came to court for a diverse array of matters, including divorce, insurance, unpaid rent, easements, wills, assaults by white neighbors, town officials who damaged their property, and more.
While Black litigants were asserting their legal rights, most often they were not challenging white supremacy; most lawsuits brought by Black plaintiffs were brought against Black defendants. And when white defendants were involved, lawyers carefully developed strategies to avoid fomenting white fears of racial equality. Nor did Black litigants enter court on a level playing field. “The baseline rules of contracts, property, and civil procedure silently favored the haves over the have-nots, the repeat player over the one-shotter.”
But the fact that Black Americans had been asserting their rights in courts for decades helps solve a puzzling question—why did Black Americans put faith in law in the first place? “If we want to understand Black people’s demands for their rights that Americans denied them, then we have to pay more attention to how they talked about and used the rights that were not denied them,” Penningroth explained.
Beyond overcoming a popular framing, telling the story of day-to-day Black legal victories came with a practical challenge—most case records simply don’t mention the parties’ race. “I wanted to write Black history,” Penningroth said, “but I couldn't tell who was Black.” Penningroth’s fascination with these stories is evident from his respect for the documents where they lie. He described driving around the country, spending weeks at a time at a county courthouse sifting through forgotten papers in its dockets. “Very few people care about old court records,” Penningroth said. “But for now they're still there for anyone willing to look. And they have stories to tell.”
Before the Movement: The Hidden History of Black Civil Rights is available now from W. W. Norton & Co.
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