My question was inspired by this article about racially restrictive covenants. They have been illegal since 1968, and unenforceable since 1948. Yet people still try to "enforce" them, with some success.

Is there a term for this type of legal situation? And if such practices are illegal (taking the house off the market when a buyer is certain race), why can't they be overridden through say, a summary judgment?


I would first disagree with your statement that efforts to enforce such restrictive covenants are sometimes successful. The linked article provides no evidence to support that view. Racially restrictive covenants remain in the public records (as do innocent anachronisms such as an early subdivision named "Swastika Park" named before the Nazi's had co-opted the meaning of this symbol and it was an obscure reference to a South Asian good luck symbol instead), and are sometimes not formally removed from legal documents, but anyone who tries to enforce them almost always swiftly find that doing so is illegal.

Taking a house off the market when a buyer is of a certain race is certainly illegal and has been uncontroversially illegal for decades, although proving a case is often difficult and damages are often hard to quantify.

There are situations where laws that are no longer on the books are given continuing effect, although this particular one is not a good example.

For example, (1) many people think that it is legally required to give a child born out of wedlock the father's surname (it isn't), or (2) think that some or all of the legal disabilities of married women associated with the historic coverture regime in the English common law have continuing effect (almost all of them have been repealed), or (3) give effect in some way or other to historic definitions of libel that no longer have legal effect such as a ban on speaking ill of the dead, or of calling attention to the natural infirmities of someone who is genuinely disabled in an embarrassing manner (truth has been an absolute defense for at least half a century ruling out liability in these cases).

No specific, widely used term to describe these situations comes to mind as I write this answer.

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    Efforts to enforce restrictive covenants aren't successful once the law runs its course. But I put the word "enforce" in scare quotes because people did try to maintain the covenants outside the law, with some success. While the African American woman in the article wasn't "barred" from the neighborhood, she was prevented from getting the house she wanted, at least without a protracted legal process. That was "enforcement" as I defined it. I would have imagined a legal process that would have nullified the refusal on public policy grounds and forced the sale on originally proposed terms. – Libra Oct 10 '17 at 0:25
  • @TomAu There is a distinction between simply willfully violating the law using a no longer valid law as an insincere fig leaf of justification while knowing it to be wrong and illegal, which I think is what is going on in the linked case, and continuing to righteously honor a law that is the "living law" of the land and embedded in people's hearts, even if it isn't in accord with the law any more ("honor killings" or police downplaying of date rape or hazing activity would be other examples), because there is a disconnect between how the law reads and what people understand it to mean. – ohwilleke Oct 10 '17 at 3:45
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    @TomAu continued . . . There are lots of times when people simply ignore the law and break it. Nobody thinks that theft or punching someone is legal, but people still do it anyway, and when people break the law, other people get hurt. Nobody thinks its legal to lynch people either, but people still threaten it and it used to be de facto legal. This is different from, for example, virtuous friends or family who cross legal boundaries somewhat with the best interests of the "victim" at heart in an "intervention", a case where new unwritten law sometimes trumps statutes in places like California. – ohwilleke Oct 10 '17 at 3:49
  • There is an important difference between this case and theft. "Theft" was always illegal. This practice was actually legal up to 1968, and people (perhaps not today, but in the early 1970s) might reasonably plead "ignorance," not knowing that the law had changed. – Libra Oct 11 '17 at 18:39

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