December 2007 Newsletter

Race and the Law: Daniel J. Sharfstein

Daniel Sharfstein ’s interest in race and the law was ignited during a summer spent doing voter education work in South Africa as a Harvard undergraduate. With apartheid in its final days, most South Africans were legally classified as White, Coloured or Black. An acquaintance who described her ancestry as “pure African” casually told Sharfstein that her family had been identified as ‘Coloured’ by the local constable during a census taken in the 1950s for the express purpose of classifying people by race. “[The constable] was friends with my father and thought he’d do us a favor,” the woman explained. “He put a ‘C’ by our name.”

Being classified as Coloured rather than Black meant that his friend “grew up in a different township, in a different kind of house, and only spoke English and Afrikaans,” Sharfstein says. “It was a revelation to me that something that seems as inevitable as race could be the product of an individual relationship, and really, of personal whim.” When he returned to school, “the question in my mind was whether the same thing was happening in the United States.” Sharfstein’s senior thesis examined a North Carolina divorce case from 1910 in which the courts had to determine whether a woman was white or black.

After graduation, Sharfstein won funding from Harvard to spend a year in Ghana studying the emergence of a free press. Although Ghana was the first country in sub-Saharan Africa to gain its independence in the 1950s, it had endured a succession of military coups. Although a new constitution restoring party politics was approved in 1992, the former dictator was promptly elected president. “Ghana was in its third year of constitutional rule,” Sharfstein recalls, “but the people in power were the same. The major change was that dozens of independent newspapers were investigating and challenging the government.”

After contributing articles from West Africa to American, English and Ghanaian newspapers and magazines, Sharfstein moved to Pasadena, California, and became a reporter for the local paper. Pasadena was one of the first cities in California to use public nuisance injunctions to fight gang activity, and Sharfstein found that “the more stories about crime I reported and the more I interacted with prosecutors and police and defense attorneys, the more it became clear to me that I wanted to be a lawyer,” he says. “The lawyers I was interviewing were actually making a difference in the lives of the communities I was covering.”

Although Sharfstein entered Yale Law School “firmly believing that I would practice law,” his interest in legal history was rekindled while taking an elective course focusing on 19th-century American legal history taught by Robert W. Gordon, for which he wrote a paper about a slander case during the Jim Crow era involving an accusation that a family was black.

After earning his J.D. at Yale, Sharfstein clerked “for two remarkable women” – Judge Dorothy Nelson on the 9th Circuit and Judge Rya Zobel in the U.S. District Court in Massachusetts. “With Judge Nelson I received an excellent education in building coalitions while staying true to one’s principles—there were moments that felt like episodes of The West Wing,” he says. “At the district court, Judge Zobel was brilliant in the courtroom, and every day I saw lawyers at work. Some days were like Bleak House, and others were like The Sopranos. I loved my clerkship experiences. Both judges I worked for had a keen sense of right and wrong. They understood that even when a case was not a landmark, it could still mean everything to the litigants.”

Sharfstein also practiced with Strumwasser & Woocher in Santa Monica, where he was part of a legal team representing a consumer group challenging California’s bailout of electric utilities, represented the L.A. public schools, and worked on cases involving voting rights.

He finds the study of legal history important in part because “an understanding of legal history, in its substance and as a methodology, is essential for lawyers.”

“Lawyers have always done history and courts have always valued historical arguments, but neither have necessarily done a great job,” he says. “We have a long way to go before the courts engage with history in a sophisticated way.”