During the 1500s and 1600s when state building in France depended on the government's ability to staff administrative and judicial offices, prime candidates emerged from the famous law schools. Steeped in new research methods favoring a documentary base, Jurists focused legal studies on the French past, rather than a Roman one, and fostered historical and comparative views of society, law, and nation. Searching in archives for customs and laws, they wrote histories tracing the development of French institutions, including the Parlement of Paris, and devised civic rituals to articulate French constitutional precepts in that court. Practicing law as well, they collected “notable arrêts” (judicial decisions) on questions of law, advanced legal theories and legislative projects, and facilitated the circulation of legal knowledge within a general public caught up in judicial activism born of social change and political necessity. By challenging operative facets of two great legal systems in the western world, Roman law and Canon law, and by amending French Customary law, they developed a system of “French jurisprudence” and legally framed a “civil society” that underwrote the claim to political sovereignty as a nation.

When Anthonis Van den Wyngaerde executed his sweeping panorama of London in 1543, he drew some two dozen ships in the Thames, but only four of them downstream from St. Katherine's Dock. A century later, however, Wenceslaus Hollar carefully represented well over a hundred seagoing vessels in a ribbon of masts winding down river as far as the eye could see. By the 1650s a mariner noted the difficulty of navigating the Thames at low tide, especially during “mackerel time,” and Admiralty Judges at Doctors' Commons near St. Paul's were hearing complaints that congestion in the river was endangering London's environment. Petitioners alleged in 1658 that Jenkin Ellis, a shoemaker and wharf owner, had so exploited his foothold of just ten yards along the north shore of the river, by selling permission to anchor ships eight-and ten-abreast, that the entire bank from St. Katherine's Stairs to the Dock was ruined. It had once been, said witnesses, a “fair sandy ground” where “people might pass on foot,” where watermen could “wax and tallow their boats.” But after Ellis had arrived in 1640, the bank slowly turned to “mud…ooze and dirt,” and “the current of the Thames near shore” where the ships lay was now so “hindered…that if not timely prevented,” the river would be “choked up.” Fires carelessly tended aboard the ships when they were grounded at low tide threatened houses in the entire precinct. When riding at anchor near the shoemaker's wharf, the vessels forced lightermen to row in midriver “against the strength and current of the tide.”

The rising number of ships in English waterways had apparently reduced everyone's margin for error in the seventeenth century. For collisions in the Thames and elsewhere were providing the civil lawyers of London's Admiralty Court with a stream of cases. Ironically, this litigation, it is argued here, reveals both the resourcefulness of England's maritime judges and the major cause of a decline in their authority during the late Stuart decades.

In January 1930 officials of the Bureau of Immigration testified about the Border Patrol before a closed session of the House Immigration Committee. Henry Hull, the commissioner general of immigration, explained that the Border Patrol did not operate “on the border line” but as far as one hundred miles “back of the line.” The Border Patrol, he said, was “a scouting organization and a pursuit organization…. [Officers] operate on roads without warrants and wherever they find an alien they stop him. If he is illegally in the country, they take him to unit headquarters.”

In 1954, seventy-four years after the U.S. Supreme Court held that African Americans could not be banned from jury service by statute, and fifty-four years after it ruled that they could not be purposely excluded from venires due to their “race or color” through court, executive, or administrative action, the Court found that Pete Hernandez had been denied equal protection of the laws under the Fourteenth Amendment. His constitutional rights were violated because of the de facto, systematic exclusion of Mexican Americans from the pool of potential jurors—and thus juries—in Jackson County, Texas.

The landmark 1954 decision Brown v. Board of Education has shaped trial lawyers' approaches to litigating civil rights claims and law professors' approaches to teaching the law's powers and limitations. The court-ordered desegregation of the nation's schools, moreover, inspired subsequent lawsuits by African Americans aimed variously at ending racial distinctions in housing, employment, and voting rights. Litigation to enforce the Brown decision and similar mandates brought slow but steady progress and inspired members of various other minorities to appropriate the rhetoric, organizing methods, and legal strategy of the African American civil rights struggle.

These two fascinating articles seek to fill an important lacuna in the burgeoning literature on the legal construction of whiteness. While LatCrit theorists in the legal academy have urged civil rights scholars and race critics to transcend the “black-white paradigm” of U.S. race studies, the majority of legal histories of whiteness have focused on two sets of cases: trials in the southeastern United States in which local courts tried to draw the line between “white” and “negro”; and cases about immigration and naturalization in which Federal courts determined whether particular foreign immigrants were suitably “white” for citizenship. Likewise, although there have been several important social and cultural histories of Texas Mexicans and whiteness in the last fifteen years, they have not considered the legal realm. The time is ripe for attention to the legal history of Mexican Americans' civil rights struggles in Texas, especially as they illuminate the shifting racial identity of Mexican Americans in the Southwest.

Ariela Gross offers a thorough summary of points made in the two articles in this Forum, and integrates the articles well. As she notes, taken together, they provide an examination of the “other white” litigation strategy employed by Mexican American civil rights lawyers.

Ariela J. Gross is generous in praising research accomplished and helpful in suggesting routes for future investigation. In response to such a model of constructive criticism, I can only plead no contest to the main charge that, while examining changes in legal strategy and judicial rhetoric in school segregation litigation, I neglected to explore important aspects of Mexican Americans' own understanding and actual experiences of “other whiteness.” As a result, the “ordinary” people in my tale seem to lack agency even in their own cases. This is an unfortunate but frequent limitation of historical studies of litigation, not least because—despite the presence in the courtroom of a plaintiff or defendant—trial records most clearly reveal the professional concerns of lawyers and judges. Even transcribed testimony (which is not always available) may tell us more about the lawyer's strategy and the judge's mood than a witness's reality. Gross rightly asks the question directly that I (admittedly) avoided entirely: “did the legal regime of whiteness have any larger cultural significance?” Put another way, I understand this question to be: did the fine legal distinctions hammered out by Mexican American attorneys and Anglo American judges matter at all to the ordinary people—parents, workers, and defendants—whether Mexican or Anglo? I think that the answer is yes, gradations of whiteness mattered even to the lay public. Yet, it seems clear as well that whiteness was experienced differently by members of various economic and social classes of Mexican Texans.