by John W. Wertheimer. Lexington: The University Press of Kentucky, 2009. 292pp. Cloth. $50.00. ISBN: 9780813125350.

Reviewed by Tara W. Stricko, Department of Political Science, Kennesaw State University. Email: tstricko [at]


LAW AND SOCIETY IN THE SOUTH provides a detailed examination of legal cases regarding a variety of issues concerning civil rights in North Carolina. The book is divided into three main time periods: slavery and the civil war, the turn of the century and world wars period, and the civil rights movement. John W. Wertheimer examines a number of court decisions in each era and contrasts varying outcomes in an attempt to divine how judicial decision-making was affected by the broader social and political environment. The substantive research question driving this book (external social influences on court decisions) is interesting, but this reviewer has substantial methodological concerns with the execution of the study.

Although federal courts (especially the United States Supreme Court) are most commonly remembered for landmark civil rights decisions, Wertheimer persuasively argues that it is the decisions of state courts that most directly affected daily life in the south. A wide range of cases are examined, including: divorce, interracial marriage, de jure housing segregation, the evolution of personal conduct, public nuisance laws, literacy tests, and school desegregation. Time and again Wertheimer argues that the decisions of judges in such cases were most often influenced, not by the law, nor the specific facts of the case, but by societal factors, such as common norms, class conflict, public outrage, and political pressures.

The book opens with three chapters exploring various domestic issues. The BARDEN (1832) and SCROGGINS (1832) cases provide conflicting rulings on grounds for divorce in North Carolina during the nineteenth century. Both Jesse Barden and Marville Scroggins brought divorce petitions alleging that their wives gave birth to “mulatto” babies. Interestingly, Barden won and Scroggins lost, although the Barden birth took place before the marriage, and the Scroggins birth after the marriage. STATE v. ROSS (1877) was a governmental challenge to an interracial couple, while STATE v. DARNELL (1914) was an attempt to enforce housing segregation during roughly the same time period. The ROSS case involved the efforts of a former slave (Pinkney Ross) and his white wife Sarah to live in North Carolina, a state that did not recognize their interracial marriage performed in South Carolina. William Darnell challenged a local statute prohibiting all races from buying property on streets that had a different racial majority. In all these cases, Wertheimer connects particular outcomes with general attitudes towards social and racial issues. [*743]

Wertheimer then explores issues that are broadly cultural, rather than explicitly racial in nature, in PENTUFF v. PARK (1927) (teaching evolution in schools) and CARPENTER v. BOYLES (1938) (drinking and other questionable conduct in roadhouses). Finally, LASSITER v. NORTHAMPTON COUNTY BOARD OF ELECTIONS (1959) and STATE v. BRAXTON CHAVIS (1980) concern literacy tests and voting rights and segregated schools respectively. The CHAVIS case is particularly interesting as it involves schools segregated in three ways, with white, black, and Native American systems. Even more surprising is the strength with which the Lumbee Indians (a small ethnic minority rumored to be descended from the lost colony of Roanoke) fought for continued segregation.

Wertheimer takes a qualitative case study approach in this book. That choice is both a strength and a weakness of the work. The case studies are in-depth, thorough, and very interesting. But the studies lack a rigid empirical framework other than the overarching argument that legal decisions are affected by law and society. For example Wertheimer’s discussion of the “mulatto” babies divorce cases is reminiscent of the type of strategic decision the U.S. Supreme Court made in MARBURY v. MADISON (1803). A complicated, strategically calculated decision whose true motivation, while widely agreed upon, is difficult to prove definitively. Wertheimer argues that the difference in legal outcomes in SCROGGINS and BARDEN was actually a carefully crafted move on the part of wealthy judges with high social status to preserve the permanency of marriage from the assault of the less secure middling working set, since each class had its own uses for marriage and a different utility payoff in making unbreakable unions. Although he does an admirable job of supporting that argument, it would take an examination of many more such cases to support stronger and more definitive conclusions.

Another methodological concern is a lack of case selection justification. Since there is no clear theme among the cases other than being racial issues decided by North Carolina courts, the reader is left wondering: “why these particular cases?” In the beginning of the book, Wertheimer mentions that the project developed out of student essays written for an undergraduate class. But that selection criterion is not nearly enough; a stronger rationale is needed. One suspects that Wertheimer had reasons for picking these specific cases out of all the topics explored by students, but unfortunately there is no detailed explanation, and the reader is left to make his or her own assumptions.

This book will appeal to readers who are interested in a detailed explanation of specific cases in North Carolina’s history. Although its utility at generalizing is limited, the author has done a good job of thoroughly explaining his detailed interpretation of events. This study is also valuable as a broad overview of a small sample of civil rights cases. The cases would be an ideal platform for beginning a deeper study of specific civil rights topics. Finally, this book would have great utility as a text for an upper-division seminar for undergraduates. It is well-written, interesting, and is sufficiently accessible to allow undergraduates to connect with the material. [*744]

CARPENTER v. BOYLES, 213 N.C. 432 (1938).
JESSE BARDEN v. ANN M. BARDEN, 14 N.C. 548 (1832).
MARBURY v. MADISON, 5 U.S. 137 (1803).
PENTUFF v. PARK, 194 N.C. 146 (1927).
STATE v. BRAXTON CHAVIS, 45 N.C. APP. 438 (1980).
STATE v. DARNELL, 166 N.C. 300 (1914).
STATE v. ROSS, 76 N.C. 242 (1877).

© Copyright 2009 by the author, Tara W. Stricko.