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Articles 1 - 30 of 46
Full-Text Articles in Legal History
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
Susan Poser
Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …
The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt
The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt
Chicago-Kent Law Review
This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century.
In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically …
Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.
Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.
Indiana Journal of Global Legal Studies
This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life. In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …
The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii
The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii
Michigan Journal of Race and Law
This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …
Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise
Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise
Michael Heise
By drawing upon empirical social science evidence to inform a core tenet of the Court's understanding of equal education the Warren Court established one of its enduring - if under-appreciated - legacies: The increased empiricization of the equal educational opportunity doctrine. All three major subsequent legal efforts to restructure public schools and equalize educational opportunities among students - post-Brown school desegregation, finance, and choice litigation - evidence an increasingly empiricized equal educational opportunity doctrine. If my central claim is correct, it becomes important to consider the consequences of this development. I consider two in this Article and find both benefits …
The Ironies Of Affirmative Action, Kermit Roosevelt Iii
The Ironies Of Affirmative Action, Kermit Roosevelt Iii
All Faculty Scholarship
The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …
A Passion For Justice, Charles A. Reich
A Passion For Justice, Charles A. Reich
Touro Law Review
What makes a good judge or justice? The public has a need to know. But simplistic labels, such as "activist," "liberal" and "conservative," are both meaningless and misleading. Perhaps aformer law clerk can offer a different perspective.
I served with David J. Vann as law clerk to Justice Hugo L.Black during the momentous 1953 Term of the Supreme Court. This was the year when Brown v. Board of Education was decided. It was also the year when Chief Justice Vinson died and was replaced by the Governor of California, Earl Warren. And it was also a year in which the …
Ut Case Was Stop On Road To Brown V. Board Of Education, Thomas D. Russell
Ut Case Was Stop On Road To Brown V. Board Of Education, Thomas D. Russell
Sturm College of Law: Faculty Scholarship
“Before Brown: Heman Marion Sweatt, Thurgood Marshall, and the Long Road to Justice” is Gary Lavergne’s treatment of Sweatt v. Painter, an important 1950 Supreme Court decision on the way to Brown. Lavergne, director of admissions research at the University of Texas, tells an interesting and important story that fills many gaps between Plessy and Brown.
Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder
Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder
Faculty Publications
"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote to Justice Felix Frankfurter in 1955, …
Racial Inclusion, Exclusion And Segregation In Constitutional Law, Michelle Adams
Racial Inclusion, Exclusion And Segregation In Constitutional Law, Michelle Adams
Articles
In Part I of the Article, I examine early cases in which the Court described segregation as a form of resource "lock-up." In several cases leading up to Brown, the Court detailed how racial segregation allows a more dominant group to hoard substantial societal resources. In these early cases, the Court's focus was on segregation as a mechanism for excluding individuals from valuable benefits on the basis of race; it did not speak explicitly to the harms associated with racial classification schemes. In this Part of the Article, I also return to Brown v. Board of Education and explore the …
The Nuremberg Trials And American Jurisprudence: The Decline Of Legal Realism, The Revival Of Natural Law, And The Development Of Legal Process Theory, Rodger D. Citron
The Nuremberg Trials And American Jurisprudence: The Decline Of Legal Realism, The Revival Of Natural Law, And The Development Of Legal Process Theory, Rodger D. Citron
Rodger Citron
No abstract provided.
"The Prejudice Of Caste": The Misreading Of Justice Harlan And The Ascendency Of Anticlassificaiton, Scott Grinsell
"The Prejudice Of Caste": The Misreading Of Justice Harlan And The Ascendency Of Anticlassificaiton, Scott Grinsell
Michigan Journal of Race and Law
This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns …
"Neutral" Principles: Rethinking The Legal History Of Civil Rights, 1934-1964, Anders Walker
"Neutral" Principles: Rethinking The Legal History Of Civil Rights, 1934-1964, Anders Walker
All Faculty Scholarship
This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civilrights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's approach, …
Brown And The Colorblind Constitution, Christopher W. Schmidt
Brown And The Colorblind Constitution, Christopher W. Schmidt
All Faculty Scholarship
This Essay offers the first in-depth examination of the role of colorblind constitutionalism in the history of Brown v. Board of Education. In light of the recent Supreme Court ruling in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), such an examination is needed today more than ever. In this case, Chief Justice John Roberts drew on the history of Brown to support his conclusion that racial classifications in school assignment policies are unconstitutional. Particularly controversial was the Chief Justice's use of the words of the NAACP lawyers who argued Brown as evidence for his colorblind …
The Rubric Of Force: Employment Discrimination In The Context Of Subtle Biases And Judicial Hostility, Anand Swaminathan
The Rubric Of Force: Employment Discrimination In The Context Of Subtle Biases And Judicial Hostility, Anand Swaminathan
The Modern American
No abstract provided.
The Nuremberg Trials And American Jurisprudence: The Decline Of Legal Realism, The Revival Of Natural Law, And The Development Of Legal Process Theory, Rodger D. Citron
The Nuremberg Trials And American Jurisprudence: The Decline Of Legal Realism, The Revival Of Natural Law, And The Development Of Legal Process Theory, Rodger D. Citron
Scholarly Works
No abstract provided.
"The Dean Of Chicago's Black Lawyers": Earl Dickerson And Civil Rights Lawyering In The Years Before Brown, Jay Tidmarsh, Stephen Robinson
"The Dean Of Chicago's Black Lawyers": Earl Dickerson And Civil Rights Lawyering In The Years Before Brown, Jay Tidmarsh, Stephen Robinson
Journal Articles
Brown v. Board of Education is a watershed in American law and society. In the years since it was decided, Brown has shaped America's views of race, constitutionalism, and equality. Brown exerts an equally important influence over the historiography of civil rights lawyering in the decades before Brown. In particular, in constructing the story of civil rights lawyering in the crucial years between World War I and World War II, historians and legal scholars have focused primarily on the people and the events that shaped Brown.
Under A Critical Race Theory Lens – Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo Pedrioli
Under A Critical Race Theory Lens – Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo Pedrioli
Carlo A. Pedrioli
This critical book review argues that James T. Patterson’s narrative in, "Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy," is a mostly balanced historical reflection. Here, the term balanced will refer to giving consideration to both the negative and positive aspects of the phenomenon in question. To advance its thesis, the book review initially offers an overview of Patterson’s historical narrative and evaluation of the Brown legacy. Then the book review analyzes Patterson’s conclusions through a Critical Race Theory lens. Given the focus of Critical Race Theory on race and the law, especially on how …
Separate, Unequal, And Alien: Comments On The Limits Of Brown, Lenni B. Benson
Separate, Unequal, And Alien: Comments On The Limits Of Brown, Lenni B. Benson
NYLS Law Review
No abstract provided.
The Rule Of Law And The Achievement Of Unanimity In Brown, Stephen Ellmann
The Rule Of Law And The Achievement Of Unanimity In Brown, Stephen Ellmann
NYLS Law Review
No abstract provided.
Under A Critical Race Theory Lens -- Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo A. Pedrioli
Under A Critical Race Theory Lens -- Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo A. Pedrioli
Faculty Scholarship
This critical book review argues that James T. Patterson’s narrative in, "Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy," is a mostly balanced historical reflection. Here, the term balanced will refer to giving consideration to both the negative and positive aspects of the phenomenon in question. To advance its thesis, the book review initially offers an overview of Patterson’s historical narrative and evaluation of the Brown legacy. Then the book review analyzes Patterson’s conclusions through a Critical Race Theory lens. Given the focus of Critical Race Theory on race and the law, especially on how …
Reflections On Brown And The Future, Oliver W. Hill Sr.
Reflections On Brown And The Future, Oliver W. Hill Sr.
University of Richmond Law Review
No abstract provided.
A Call To Leadership: The Future Of Race Relations In Virginia, Rodney A. Smolla
A Call To Leadership: The Future Of Race Relations In Virginia, Rodney A. Smolla
University of Richmond Law Review
No abstract provided.
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
Michigan Law Review
Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …
Reflections On Brown, Paul D. Carrington
Reflections On Brown, Paul D. Carrington
The Journal of Appellate Practice and Process
No abstract provided.
Introduction: Brown In The Supreme Court, Dennis J. Hutchinson
Introduction: Brown In The Supreme Court, Dennis J. Hutchinson
The Journal of Appellate Practice and Process
No abstract provided.
Back To Basics: Returning To The Matter Of Black Inferiority And White Supremacy In The Post-Brown Era, Regina Austin
Back To Basics: Returning To The Matter Of Black Inferiority And White Supremacy In The Post-Brown Era, Regina Austin
The Journal of Appellate Practice and Process
No abstract provided.
Litigation Campaigns And The Search For Constitutional Rules, Mark V. Tushnet
Litigation Campaigns And The Search For Constitutional Rules, Mark V. Tushnet
The Journal of Appellate Practice and Process
No abstract provided.
Enforcing Brown In The Little Rock Crisis, Tony A. Freyer
Enforcing Brown In The Little Rock Crisis, Tony A. Freyer
The Journal of Appellate Practice and Process
No abstract provided.
Voices Of The Brown Generation: Description Of A Project, Mildred Wigfall Robinson
Voices Of The Brown Generation: Description Of A Project, Mildred Wigfall Robinson
The Journal of Appellate Practice and Process
No abstract provided.