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Monday, September 09, 2019

Nicole Garnett JOT on "The War Against Chinese Restaurants"

I'm posting/linking to a short JOT (Download Garnett JOT 2019)written by Prof. Nicole Stelle Garnett on Gabriel Chin's and John Ormonde's 2018 article, “The War Against Chinese Restaurants."  (The piece turned out not to be run-able in JOTWELL because, the author and editors realized after the piece was completed, the article had already been JOT-ed.  But, that's no reason not to post or read it here!)

Petty Tyrants and their Property-Law Arsenal:  A Cautionary Tale

 Nicole Stelle Garnett*

Gabriel J. Chin & John Ormonde, “The War Against Chinese Restaurants,”

67 Duke Law Review 681 (2018)

For my friend and colleague, John Copeland Nagle (1960-2019), with whom I shared many Chinese meals, and for Jean Chen, the best chef in South Bend, Indiana, who cooked most of them.

            Today, according to the Chinese American Restaurant Association, there are over 45,000 Chinese restaurants in the United States – more than the number of McDonald’s, KFCs, Pizza Huts, Taco Bells, and Wendy’s combined.[1]  That statistic surprised me, but not as much as the revelation in Gabriel Chin & John Ormonde’s fascinating article, “The War Against Chinese Restaurants,” that Chinese restaurants have flourished in the U.S. for the past century and a half.  Indeed, in the late-nineteenth and early-twentieth centuries, Chinese restaurants were so successful that that they were considered a cultural menace and became the target of a xenophobic “war” declared by early labor unions and their political allies who employed a variety of legal tools, including the tools of property regulation, to prevent them from opening (or force them to close).[2]

 

* John P. Murphy Foundation Professor of Law, Notre Dame Law School.                           

[1] Emelyn Rude, A Very Brief History of Chinese Food in America, Time Magazine, Feb. 8, 2016, available at http://time.com/4211871/chinese-food-history/.

[2] In 1920, AFL President Samuel Gompers (a leader of the Chinese exclusion movement), wrote a book entitled Meat v. Rice: American Manhood against Asiatic Coolieism, Which Shall Survive?

Chin and Ormonde detail the reasons for the late-nineteenth-century growth in Chinese restaurants, including discriminatory labor practices that dramatically limited employment opportunities for Chinese immigrants and the fact that Americans, apparently, have always liked Chinese food (or at least an Americanized version of it).[1]  They also explain the economic and political motivations for opposing Chinese restaurants, including concerns about the victimization of white women by Chinese men, the risk of miscegenation,[2] and competition between Chinese restaurants (and their inexpensive labor force) and American restaurants (and their unionized labor force).[3]  The bulk of their fascinating article, however, details the various tools employed to fight the “war” against Chinese restaurants, including labor union boycotts,[4] state laws prohibiting white women from working in and/or patronizing them,[5] citizenship-based employment- and business-licensing requirements,[6] and—importantly for present purposes—the discriminatory use of the tools of property regulation.

            For example, in 1911, lawmakers in Chicago sought to enact proto-zoning legislation that would have excluded Chinese restaurants from Wabash Avenue in the city’s central business district.[7]  Despite being advised that such a law was probably unconstitutional under Yick Wo v. Hopkins,[8] the city council voted to order city commissioners to “refuse the issuance of permits for contraction or remodeling of any building ... by any Chinaman” in the area.[9]  Chicago was not anomalous.  Cities across the nation employed the discriminatory enforcement of facially neutral laws to impose de facto zoning that either excluded Chinese restaurants altogether or limited their operations to “Chinatowns.”[10]  And, as I have previously documented in other contexts, police employed the “order maintenance” tools of law enforcement to limit their operation to restricted “zones” (or to close them for minor—and sometimes fabricated—legal infractions.[11]  Finally, local governments sought to control or close Chinese restaurants by regulating the interior design of restaurants.  Because early-twentieth-century Chinese restaurants typically had small compartments, or booths with curtains, one legal tactic was to prohibit booths in restaurants.  Dozens of municipalities, in fact, banned private booths in restaurants.  The stated justification for these bans was the prevention of solicitation, but the unstated motive—closing Chinese restaurants—was hardly a secret.  Indeed, in a report endorsing booth bans, the U.S. Public Health Service specifically cited the problem of “chop suey joints” with private booths.[12]  Ultimately, restrictive immigration regulations—specifically the Chinese exclusion law—led opponents to declare victory,[13] but the persistent popularity of Chinese restaurants suggests that they may have won the battle and lost the war.

            Chin and Ormonde conclude by drawing connections between the war against Chinese restaurants and contemporary immigration battles.  There are undoubtedly connections to be drawn, but their piece also illustrates a dark underbelly of property regulation.  It is well-understood that land use regulations can be, and are, used to exclude unwanted land uses and users.   Academics and policy makers alike have debated for decades how to curb the exclusionary effects of zoning law, for example.  But both groups tend to discount, overlook (or in some cases obfuscate) the fact that the nuts-and-bolts tools of property regulations (such as permitting and licensing requirements, design review, and off-street-parking requirements) can be used to achieve the same exclusionary effects in far-less transparent ways.[14]  Chin and Ormonde’s article reminds us that, in the hands of petty tyrants, the tools of property regulation are dangerous weapons—ones that perhaps property law scholars should attend too more closely.

 

[1] Chin & Ormonde, 687-88. 

[2] Id. at 701-705.

[3] Id. at 689-90.

[4] Id.at 691-98.

[5] Id. at 707-16.

[6] Id. at 716-719.

[7] Id. at 719.

[8] 118 U.S. 356 (1886).

[9] Id. 720.

[10] Id. at 721-22.

[11] Id. at 723-24.  Nicole Stelle Garnett, “Relocating Disorder,” 91 Virginia Law Review 1075 (2005).

[12] Chin & Ormonde, 727-30.

[13] Id. at 727-34.

[14] See, e.g., Margaret Brinig& Nicole Garnett, ”A Room of One’s Own?  Accessory-Dwelling-Unit Reforms and Local Parochialism,” 45 Urban Lawyer 519 (2013) (finding that local governments in California used these restrictions to undermine a state-law affordable-housing mandate).

 

Posted by Rick Garnett on September 9, 2019 at 10:54 AM in Rick Garnett | Permalink

Comments

Very interesting. But the respectable author of the related article, fatally erred by trying to analogize between the stance of Trump and Steve Bannon and alike, and anti Chinese restaurants movement at the time. This is because of the very simple reason, that today, serious and even consensual issues of national security are at stake here, while at the time, it was as described, rather cultural issue (adding also the economic and technological issue or competition). And worth to note, that the best proof, would be, that such distinction presented by the author of the related article, between movement launched or initiated from the bottom of the pyramid Vs. bureaucrats and others, is much less relevant this days. For it comes from both layers of the Pyramid.

As illustration, very recently, judge in district court ( Eastern district of Virginia ) ruled about the unconstitutionality of a "watchlist"( government's Terrorist Screening Database ("TSDB") ).One can only guess, that Muslims as such, where the subject of surveillance and so forth, initiated from the highest ranks of course.

Here to the ruling:

https://www.justsecurity.org/wp-content/uploads/2019/09/watchlist-decision-elhady-sept-4-2019.pdf

Thanks

Posted by: El roam | Sep 9, 2019 12:46:17 PM

The most Jewish-centric JOT ever.

Posted by: Howard Wasserman | Sep 9, 2019 11:46:28 AM

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