1. Charles A. Lofgren, The Plessy Case (New York: Oxford Univ. Press, 1987), p. 41. My account of the Plessy case relies on Lofgren, Otto H. Olsen, Carpetbagger's Crusade: The Life of Albion Winegar Tourgée (Baltimore: Johns Hopkins Univ. Press, 1965); The Thin Disguise, ed. Otto H. Olsen, (New York: Humanities Press, 1967); and Keith Weldon Medley, "The Sad Story of How 'Separate but Equal' Was Born," Smithsonian Magazine 24 (1994): 105-17.

2. "A Grave Responsibility," The Century Magazine 29 (1884-1885):462.

3. George Washington Cable, "The Freedman's Case in Equity," The Century Magazine 29 (1885): 418.

4. Henry W. Grady, "In Plain Black and White," The Century Magazine 29 (1885): 909-17.

5. Booker T. Washington, Up from Slavery, (New York: Doubleday Page & Co., 1901), pp. 219-20. The metaphor may have been inspired by former

President Rutherford B. Hayes in a May 20, 1880, speech at Hampton Institute, where Washington was teaching. Washington also uses the metaphor in an April 30, 1885, letter to the Montgomery Advertiser asking for equal railroad accommodations for equal pay.

6. Plessy v. Ferguson, 163 U.S. 537, 543 (1896). Future references to this decision will be included parenthetically in the text and designated as P. Other works referred to parenthetically include those by Samuel Langhorne Clemens: A Connecticut Yankee in King Arthur's Court, ed. Bernard L. Stein and Henry Nash Smith (Berkeley: Univ. of California Press, 1979), designated as CY; The Love Letters of Mark Twain, ed. Dixon Wector (New York: Harper, 1942), designated as LL; and " Pudd'nhead Wilson" and "Those Extraordinary Twins, " ed. Sidney E. Berger (New York: Norton, 1980), designated as PW. The one book by William Dean Howells is: Their Wedding Journey, ed. John K. Reeves (Bloomington: Indiana Univ. Press, 1968), designated as WJ. Works by Albion Winegar Tourgée include: Murvale Eastman, Christian Socialist (New York: Fords, Howard, and Hulbert, 1890), designated as ME; Pactolus Prime (New York: Cassell and Co., 1890), designated as PP; A Royal Gentleman and Zouri's Christmas (New York: Fords, Howard, and Hulbert, 1881), designated as RG; and With Gauge and Swallow, Attorneys (Philadelphia: J. B. Lippincott, 1889), designated as GS.

7. On the Roberts case, see Jim Crow in Boston, eds. Leonard W. Levy and Douglas L. Jones, (New York: DaCapo Press, 1974). On connections with Melville, see Brook Thomas, Cross-examinations of Law and Literature, (New York: Cambridge Univ. Press, 1987).

8. Brown's precedent was Yick Wo v. Hopkins, 118 U.S. 356 (1886), which concerned the discrimination against Chinese in San Francisco. The NAACP eventually used the logic of Yick Wo as part of its strategy to fight the Plessy decision.

9. There were some exceptions that revealed the intention of the law. For instance, nurses of children of the opposite race were exempted. There were not many white nurses of black children.

10. Introducing Olsen's Carpetbagger's Crusade, C. Vann Woodward makes a rare error when he attributes the dissent to Holmes (xiii).

11. W. E. B. Du Bois, "The Strivings of the Negro People," The Atlantic Monthly 80 (1897): 195.

12. For an excellent analysis of Pudd'nhead Wilson and the Plessy case, see Eric J. Sundquist, "Mark Twain and Homer Plessy," in To Wake the Nations (Cambridge, Mass.: Belknap Univ. Press, 1993), pp. 225-70.

13. Sterling Brown, The Negro in American Fiction, (Washington, D.C.: Associates in Negro Folk Education, 1937), p. 74.

14. Theodore L. Gross, Albion Winegar Tourgée, (New York: Twayne, 1963), p. 133.

15. Sterling Brown, Negro in American Fiction, p. 75. Brown feels that Pudd'nhead "falls a great way" from Huckleberry Finn, p. 68.

16. Helen M. Chesnutt, Charles Waddell Chesnutt, (Chapel Hill: Univ. of North Carolina Press, 1952). pp. 58-59.

17. Albion Winegar Tourgée, "The South as a Field for Fiction," The Forum 6 (1888): 406, 406, 411, 411.

18. Martha Banta, introduction to The Shadow of a Dream and An Imperative Duty, by William Dean Howells (Bloomington: Indiana Univ. Press, 1970), p. v.

19. Lee Clark Mitchell, "'De Nigger in You': Race or Training in Pudd'nhead Wilson," Nineteenth-Century Literature 42 (1987): 310. For an example of recent essays concerned with this problem, see Susan Gillman and Forest G. Robinson, eds., Mark Twain's "Pudd'nhead Wilson" (Durham: Duke Univ. Press, 1990).

20. Evan Carton, " Pudd'nhead Wilson and the Fiction of Law and Custom," in American Literary Realism, ed. Eric Sundquist, (Baltimore: Johns Hopkins Univ. Press, 1982), p. 89.

21. Quoted in Olsen, The Thin Disguise, p. 83.

22. Earl F. Briden, "Idiots First, Then Juries: Legal Metaphors in Mark Twain's Pudd'nhead Wilson, " Texas Studies in Literature and Language 20 (1978): 169-80.

23. John S. Haller Jr., Outcasts from Evolution (Urbana: Univ. of Illinois Press, 1971).

24. Quoted in Lofgren, Plessy, pp. 105, 106.

25. Quoted in Lofgren, Plessy, p. 106.

26. Tourgée hoped that his book would affect the 1884 election, and he blamed mugwump support of Cleveland for undermining his educational program.

27. Mark D. Coburn, " 'Training Is Everything': Communal Opinion and the Individual in Pudd'nhead Wilson, " Modern Language Quarterly 31 (1970): 210.

28. Sherwood Cummings, Mark Twain and Science (Baton Rouge: Louisiana State Univ. Press, 1988), p. 172. Cummings's discussion of Twain's neo-Lamarckianism is first-rate, although he and I interpret its effects differently.

29. The black student was Warner McGuinn. See Mark V. Tushnet, Making Civil Rights Law (New York: Oxford Univ. Press, 1994), p. 10.

30. Hershel Parker, Flawed Texts and Verbal Icons (Evanston: Northwestern Univ. Press, 1984), p. xiv.

31. Tourgée's brief for Plessy declares, "Justice is pictured blind and her daughter, the Law, ought at least to be color-blind" (Olsen, The Thin Disguise, p. 90). In Pactolus he writes, "As [Justice] is always represented as blind-folded we may infer she is not particular about her appearance and doesn't care who sees her;—though it seems inconsistent to speak of her as a woman if that is the case" (PP 91).

32. Albion W. Tourgée, Bricks Without Straw (New York: Fords, Howard, & Hulbert, 1880), p. 35. Although Andrew Kull is unaware of this quotation, it confirms his observation that Tourgée supported versions of affirmative action that existed in his time, which were not afraid of recognizing race as a legal category, a stand that Kull argues contrasts with Justice Harlan's position. Kull also cites Wendell Phillips and Theodore Tilton's use of the color-blindness

metaphor. The Color-Blind Constitution (Cambridge: Harvard Univ. Press, 1992), pp. 119-20. Whether Kull is right about Harlan is open to debate. For a different view of Harlan's dissent, see T. Alexander Aleinikoff, "Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Antiracism, and Citizenship," University of Illinois Law Review 1992: 961-77. In Regents of the University of California v. Bakke (1978) Justices Brennan, White, Marshall, and Blackmun argue that we cannot "let color blindness become myopia which masks the reality that many 'created equal' have been treated within our lifetimes as inferior both by the law and their fellow citizens" (438 U.S. 265 at 327).

33. The only suggestion that Tom might operate in the interests of the black race comes early in the book when Roxy imagines him, "her nigger son, lording it amongst the whites and securely avenging their crimes against her race" (PW 4). But Tom would lord it amongst whites only so long as he remained unaware that he had black blood. His superior attitude would certainly not be a self-conscious effort to help his black brothers and sisters. As we shall see, Pactolus will also argue that Benny can do more for his race by passing as white, but Benny would do so self-consciously.

34. Carton, "Fiction," p. 93.

35. Dorothy Ross, The Origins of American Social Science (New York: Cambridge Univ. Press, 1991), p. 130.

36. Stowe's "The True Story of Lady Byron's Life," and Twain's "The Defense of Harriet Shelley" have similar views on gender roles in marriage. In an editorial for the Buffalo Express 7 September 1869, Twain defended Stowe's essay. See Mark Twain's Letters, eds. Victor Fischer and Michael B. Frank, vol. 3 (Univ. of California Press, 1992), pp. 350-51, n. 6. On the controversy over Stowe's 1869 essay, see Frank Lentricchia Jr., "Harriet Beecher Stowe and the Byron Whirlwind," Bulletin of the New York Public Library 70 (1966): 218-28. Twain cites the "Byron Scandal" in "Unburlesquable Things'' (1870), Collected Tales, Sketches, Speeches, & Essays, 1852-1890 (New York: Library of America, 1992), pp. 421-24.

37. Elizabeth Perry Hedges argues that the scene in which Huck is shocked when Jim vows to buy his wife and children out of slavery can instruct law students in the relation between language and law. "Writing in a Different Voice," Texas Law Review 66 (1988): 630-33. See also Aviam Soifer, "Reviewing Legal Fictions," Georgia Law Review 20 (1986): 886-87. Soifer stresses that Twain's novel was written after the Civil Rights Cases (1883).

38. On Twain's economic liberalism, which comes closest to Manchester Liberalism, see Louis J. Budd, Mark Twain: Social Philosopher (Bloomington: Indiana Univ. Press, 1962).

39. Twain's portrayal of Judge Driscoll most likely drew on his father John Marshall Clemens. Named after the famous chief justice from Virginia even before the justice was appointed to the Supreme Court, Twain's father was a lawyer, local judge, and justice of the peace. Kim M. Roam, "Mark Twain: Doctoring the Laws," Missouri Law Review 48 (1983): 680-718. Justice Harlan was also named after Marshall.

40. See Myra Jehlen, "The Ties That Bind: Race and Sex in Pudd'nhead Wilson, " in Gillman and Robinson, "Pudd'nhead," pp. 105-20.

41. Tourgée, "The South as a Field for Fiction," 409. Chesnutt, who was influenced by Tourgée, more effectively makes connections between the conditions of slavery and emancipation in his fiction.

42. Steven Mailloux, Rhetorical Power (Ithaca: Cornell Univ. Press, 1989), p. 102. Mailloux lists one minor exception.

43. Tourgée frequently evokes equity when writing about race. For instance, in With Gauge & Swallow he dramatizes the dilemmas that result from differing state laws about interracial marriage, and notes, "Such conduct did not seem to be exactly in consonance with the principles of universal equity" (GS 164).

44. Pac stakes out his position, which is Tourgée's, by debating the proposed Blair bill with a senator getting a shine. In 1890 the Blair bill appropriated federal money to address the high rate of illiteracy in the South. Since a large percent of those illiterate were black, it would seem that Tourgée would support it. For Tourgée, however, it was flawed because the money would be distributed to the states. Since state governments were controlled by whites, Tourgée feared that they would spend most on white schools and then use the relatively poor progress of black children to prove their intellectual inferiority. Thus, he supported an alternative bill that gave money directly to counties or townships according to the number of illiterates in each, with the appropriate amount given to black and white schools. Tourgée was probably correct in his analysis. Nonetheless, his uncompromising stand placed him in an alliance with conservative Southerners who also opposed the bill. It failed. When the country fell into an economic depression, no new bill could possibly get support.

45. Olsen, The Thin Disguise, p. 79.

46. See, for instance, Jane Tompkins, Sensational Designs (New York: Oxford Univ. Press, 1985), and Philip Fisher, Hard Facts, (New York: Oxford Univ. Press, 1985).

47. Olsen, The Thin Disguise, p. 79.

48. Quoted in Louis D. Rubin, George Washington Cable, (New York: Pegasus, 1969), pp. 218-19. Chesnutt's refused essay gave a Negro's perspective on issues of race. See Herbert F. Smith, Richard Watson Gilder, (New York: Twayne, 1970), p. 71.

49. Kenneth W. Warren, Black and White Strangers: Race and American Literary Realism (Chicago: Univ. of Chicago Press, 1993), p. 38. Like me, Warren argues that the realists tried to imagine the "consequences that would ensue from an 'extension of the field of democratic struggles to the whole of civil society and the state' [Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy (London: Verso, 1985), p. 176]" (p. 13). Nonetheless, he asserts, they retreated from those consequences when they involved race. Admiring greatly Warren's work, I have three points of difference. First, I try to distinguish the different effects that works by Howells, James, and Twain had on issues of race. Second, I try to clarify the importance of differences among social, civil, economic, and political rights. Third, I am more skeptical of the transcendental position of Tourgée. Instead, I measure the realists' retreat by the standard that Warren himself admits is enacted in their works, one that

imagines the consequences of basing the entire social order on what I have called the promise of contract. See also chapter 6, n. 18.

50. See, for instance, Amy Kaplan, The Social Construction of American Realism (Chicago: Univ. of Chicago Press, 1988) and Daniel Borus, Writing Realism, (Chapel Hill: Univ. of North Carolina Press, 1989), especially, "The Lure of Classlessness: The Antipolitics of Realism," pp. 139-82.

51. Albion W. Tourgée, Our Continent, 2 (Dec. 27, 1882): 797.

52. Albion W. Tourgée, "A Study in Civilization," The North American Review 143 (1886): 252, 253, 252.

53. Gyorgy Lukàcs, "Narrate or Describe?" in Writer and Critic and Other Essays (London: Merlin Press, 1970), pp. 110-48. Tourgée has a different distinction between realism and naturalism, which I mention in the final chapter.

54. Tourgée "Study," 253.

55. Albion W. Tourgée, Our Continent 3 (April 18, 1882): 509.

56. Albion W. Tourgée, Our Continent, 3 (Jan. 31, 1883): 155.

57. Albion W. Tourgée, "Study," 250.

58. Albion W. Tourgée, "Study," 249-50. Tourgée's complaint that the realists do not present characters who woo in "true manly fashion" complicates Michael Davitt Bell's claim that Howells's call to present the real facts of life in fiction responded to a fear that novel writing itself was considered a feminine activity in the United States. For Tourgée, at least, the absence of proper sentiment and feeling in realistic works denied true manhood. For instance, in Murvale Eastman in a chapter entitled "Too Natural for Realism'' he writes, "The 'realist' is always ready to believe anything mean; but anything decent and manly he declares at once to be unnatural" (ME 165). Bell seems to assume that sentimentalism in the period was seen as exclusively feminine. It was not. The Problem of American Realism (Chicago: Chicago Univ. Press, 1993).

59. Albion W. Tourgée "Study," 246. Tourgée's praise of Ramona implies, of course, that it is better than Uncle Tom's Cabin . Tourgée lavishes high praise on Uncle Tom's Cabin . Nonetheless, he notes the inaccuracy of Stowe's portrayal of slaves who are "in intellectual and moral qualities simply 'blacked Yankees.' " Tourgée grants that the book's effect on its white audience might have depended on such a distortion. But having read the book aloud to former slaves and listening to their responses, he was convinced that Stowe had no real understanding of slave life. It is significant that he does not publish this criticism till after Stowe's death. "The Literary Quality of 'Uncle Tom's Cabin,'" The Independent 48 (August 20, 1896): 3-4, quotation on P. 3.

60. Albion W. Tourgée, Our Continent, 3 (May 23, 1883): 669.

61. The context of March's comment generates irony. Observing a lone Southerner at a hotel in Niagara Falls, March sentimentally imagines that he used to come every year before the war, spending lavishly. He also imagines that the black waiter serving the Southerner admires him "immensely," then admits, "The impoverished slaveholder is a pathetic figure, in spite of all justice and reason; the beaten rebel does move us to compassion, and it is of no use to think of Andersonville in his presence" (WJ 95).

62. Gross, Tourgée, p. 134.

63. Everett Carter links Tourgée with the realists because of his attack on sentimental lies about the South, but he also notes that Tourgée, like Bret Harte and Edward Eggleston, succumbs to other forms of sentimentalism. I have tried to show that the realists themselves were not completely free of sentimentalism, such as Twain's views on gender. Nonetheless, there is a relative, if not absolute, difference between them and others writing at the time, a difference that Tourgée himself noticed. Howells and the Age of Realism (Philadelphia: Lippincott, 1954), PP. 79-81, 154.

64. In 1883 Gilder wrote, "Negroes constitute a peasantry wholly untrained in, and ignorant of, those ideas of constitutional liberty and progress which are the birthright of every white voter; ... they are gregarious and emotional rather than intelligent, and are easily led in any direction by white men of energy and determination." Quoted in Ray Ginger, The Age of Excess (New York: Mac-millan, 1965), P. 74.

65. Albion W. Tourgée Our Continent 3 (Feb. 7, 1883): 187. See also "Reform versus Reformation," The North American Review 132 (1881): 305-19. For a recent defense of the bureaucratic state in terms of citizen participation, see Mark Seidenfeld, "A Civic Republican Justification for the Bureaucratic State," Harvard Law Review 105 (1992): 1511-76.

Tourgée's mention of China recalls that he spoke out against anti-Chinese sentiment at its peak. Our Continent 3 (May 2, 1883): 572. See also Twain's "John Chinaman in New York" (1870), in Collected Tales, Sketches, Speeches, & Essays, 1852-1890, pp. 440-41. Tourgée's and Twain's support of Chinese is noteworthy. In contrast, in his Plessy dissent Justice Harlan refers to the Chinese as a "race so different from our own that we do not permit it to become citizens of the United States" (P 561). Two years after Plessy Harlan dissented in United States v. Wong Kim Ark (1898), which declared that someone of Chinese parents, born in the United States, is guaranteed citizenship by the 14th Amendment.

66. Thomas Haskell, The Emergence of Professional Social Science (Urban: Urbana Univ. Press, 1977), pp. 67-68.

67. On Holmes and the Metaphysical Club, see Max Fisch, "Justice Holmes, The Prediction Theory of Law, and Pragmatism," Journal of Philosophy 39 (1942): 85-97). On Holmes's pragmatism, see, among many others, Fisch, "Holmes, Pierce, and Legal Pragmatism," Yale Law journal 84 (1975): 1123-31; Frederic Rogers Kellogg, "The Making of an American Legal Philosophy,'' in The Formative Essays of justice Holmes (Westport, Conn.: Greenwood Press, 1984), PP. 3-74; Thomas C. Grey, "Holmes and Legal Pragmatism," Stanford Law Review 41 (1989): 787-870; and Richard Posner, The Problems of jurisprudence (Cambridge: Harvard Univ. Press, 1990). Not everyone agrees that Holmes was a pragmatist. The most powerful dissenter is Yosal Rogat, who takes issue with Morton White's link between Holmes and Dewey. "The Judge as Spectator," The University of Chicago Law Review 31 (1964): 251-53, n. 194. H. L. Pohlman claims that Holmes was a utilitarian, in Justice Oliver Wendell Holmes and Utilitarian jurisprudence (Cambridge: Harvard Univ.

Press, 1984), Patrick J. Kelley that he was a positivist in "Was Holmes a Pragmatist? Reflections on a New Twist to an Old Argument," Southern Illinois University Law journal 14 (1990): 427-67.

The argument demonstrates how difficult it is to fit a complicated figure like Holmes under one label. It also shows how important it is for people claiming to be the true inheritors of the pragmatic tradition to decide whether or not Holmes is within that tradition. My own position is that, although his thought cannot be contained by what neopragmatists identify variously as the true legacy of pragmatism, Holmes was clearly influenced by pragmatic thinkers and helped to influence them. Holmes's pragmatic streak helps to clarify distinctions among classical republicanism, liberalism, mugwump reformism, and progressivism. Such distinctions are useful to help us chart historical transformations, even if no one thinker perfectly represents any one brand of thought. For instance, Holmes's formalization of contract reveals his positivism.

68. Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920," in Professions and Professional Ideologies in America, ed. Gerald L. Geison (Chapel Hill: Univ. of North Carolina Press, 1983), PP. 70-110.

69. R. Jackson Wilson, In Quest of Community (New York: John Wiley, 1968), P. 43.

70. Charles Sanders Peirce, "The Fixation of Belief," in Classic American Philosophers, ed. Max H. Frisch (Englewood Cliffs: Prentice-Hall, 1951), PP. 62, 63.

71. Oliver Wendell Holmes Jr., The Common Law, ed. Mark De Wolfe Howe (Cambridge: Harvard Univ. Press, 1963), P. 5.

72. See Lofgren, Plessy, especially "The Intellectual Environment: Racist Thought in the Late Nineteenth Century," pp. 93-115. See also Robin West's use of Pudd'nhead Wilson to point out the fallacies in Owen Fiss's and Ronald Dworkin's appeals to interpretive communities. In this same essay she somewhat mistakenly refers to Stanley Fish's "subjective interpretivism," but uses John Barth's The Floating Opera to engage Fish. I am implying that Plessy and Pudd'nhead should make us reconsider the limitations of Fish's pragmatically derived notion of interpretive communities and his defense of professionalism. "Adjudication Is Not Interpretation: Some Reservations about the Law-As-Literature Movement," Tennessee Law Review 54 (1987): 203-78.

73. On Twain's use of science and its relation to legal realism, see John P. McWilliams Jr., "Innocent Criminal or Criminal Innocence: The Trial in American Fiction," in Carl S. Smith, John P. McWilliams Jr., and Maxwell Bloomfield, Law and American Literature (New York: Knopf, 1983), PP. 45-124. On Twain's use of fingerprinting and scientific racism, see Susan Gillman, Dark Twins (Chicago: Univ. of Chicago Press, 1989).

74. Of course, the representation of the past often has present political importance. As the works of Page indicate, the production of images of the slaveholding South played an important role in national debates over postbellum racial policies. Pudd'nhead Wilson is more than an imaginative work of memory; it is also a self-conscious parody of versions of the Southern past that

helped to reunite North and South after Reconstruction. For instance, Twain's portrait of Judge Driscoll and Pembroke Howard can be profitably juxtaposed to Page's idealized sketches of Virginia lawyers.

75. Eric J. Sundquist offers a similar interpretation of Pudd'nhead's role, but, as he acknowledges, it was influenced by reading an essay of mine that "modified his views." Compare, for instance, Sundquist's book and his early essay "Mark Twain and Homer Plessy," Representations, 24 (1988): 102-27.For the acknowledgment, see Wake, p. 650, n. 8.

76. John Carlos Rowe, Through the Custom-House (Baltimore: Johns Hopkins Univ. Press, 1982), p. 147.

77. Mark Twain, Mark Twain in Eruption, ed. Bernard De Voto (New York: Grosset & Dunlap, 1940), PP. 204, 206, 206-7.

78. See Mark Twain, "Mental Telegraphy" and "Mental Telegraphy Again," In Defense of Harriet Shelley and Other Essays (New York: Harper & Brothers, 1929), pp. 111-147. On Twain and mediumship, see Howard Kerr, Mediums, and Spirit-Rappers, and Roaring Radicals (Urbana: Univ. of Illinois Press, 1972), and Gillman, Dark Twins .

79. Wolfgang Iser, "Feigning in Fiction," in Identity of the Literary Text, eds. Mario J. Valdés and Owen Miller (Toronto: Univ. of Toronto Press, 1985), PP. 204-28.

80. Brown v. Board of Education, 347 U.S., 483, 494 (1954).