Law Commons^™

Branch Rickey, Affirmative Action And 'Merit' In Baseball And Education, Evan H. Caminker

Book Chapters

When General Manager Wesley Branch Rickey broke Organized Baseball’s longstanding color barrier on October 23, 1945, by signing Jackie Robinson to a contract to play for the Montreal Royals, a minor league affiliate of the Brooklyn Dodgers, Rickey catalyzed the movement for racial justice. Millions of people saw, heard, and read about black and white men playing side-by-side. Integrating the national pastime helped challenge segregationist norms across the land, facilitating the integration of military troops and public schools soon thereafter.

Rickey’s stirring call in his 1956 Atlanta address to judge people on their merits rather than their pigmentation still resonates …

Defense Counsel And Public Defence, Eve Brensike Primus

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Public-defense delivery systems nationwide are grossly inadequate. Public defenders are forced to handle caseloads that no one could effectively manage. They often have no funding for investigation or expert assistance. They aren’t adequately trained, and there is little to no oversight of their work. In many jurisdictions, the public-defense function is not sufficiently independent of the judiciary or the elected branches to allow for zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people are convicted, precious resources are wasted, and …

The Shelby County Problem, Ellen D. Katz

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Decided on June 23, 2013, Shelby County v. Holder scrapped the coverage formula set forth in Section 4(b) of the Voting Rights Act (VRA). Congress first enacted this formula in 1965 and, in it, set forth criteria to identify places with low levels of voter participation that was likely attributable to racial discrimination. Once identified, "covered" jurisdictions needed to obtain federal approval, known as preclearance, before changing any electoral practice. Specifically, they needed to demonstrate to the U.S. Department of Justice or a federal court that proposed changes were not discriminatory in purpose or effect. Shelby County lifted the preclearance …

Labor Unions And Title Vii: A Bit Player At The Creation Looks Back, Theodore St. Antoine

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During the debates over what became Title VII (Equal Employment Opportunity) of the Civil Rights Act of 1964, I was the junior partner of the then General Counsel of the AFL-CIO, J. Albert Woll. There were only three of us in the firm. The middle partner, Robert C. Mayer, handled the business affairs of the Federation and our other union clients. Bob was also the son-in-law of George Meany, president of the AFL-CIO, which gave us a unique access to Meany’s thinking. The Federation had only one in-house lawyer, Associate General Counsel Thomas Everett Harris. Tom was an aristocratic Southerner …

The Mismatch Myth In U.S. Higher Education: A Synthesis Of The Empirical Evidence At The Law School And Undergraduate Levels, William C. Kidder, Richard O. Lempert

Book Chapters

Opponents of affirmative action in higher education commonly cite two principles to justify their opposition. One is that admissions to institutions of higher education should be based on "merit," which is often treated by critics of affirmative action as consisting of little more than test score results and high school or undergraduate grades. The second is the legal and moral imperative of not making consequential decisions based on race. We shall not address these principles except to note that others have shown that they do not make the case against affirmative action (Carbado & Harris 2008, Shultz & Zedeck 2011, …

Justice Ginsburg's Umbrella, Ellen D. Katz

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Near the end of her dissent in Shelby County v. Holder, Justice Ginsburg suggested a simple analogy to illustrate why the regional protections of the Voting Rights Act (VRA) were still necessary. She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

On Class-Not-Race, Samuel R. Bagenstos

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Throughout the civil rights era, strong voices have argued that policy interventions should focus on class or socioeconomic status, not race. At times, this position-taking has seemed merely tactical, opportunistic, or in bad faith. Many who have opposed race-based civil rights interventions on this basis have not turned around to support robust efforts to reduce class-based or socioeconomic inequality. That sort of opportunism is interesting and important for understanding policy debates in civil rights, but it is not my focus here. I am more interested here in the people who clearly mean it. For example, President Lyndon Baines Johnson—who can …

Dignité/Dignidade: Organizing Against Threats To Dignity In Societies After Slavery, Rebecca J. Scott

Book Chapters

This chapter is not an attempt to join the fractious debate over philosophical first principles or juridical first usages of the term 'dignity'. Instead, it explores the tight connection between the institution of slavery and the giving of specific meanings to the concept of dignity, in particular times and particular places. To explore the dynamics of the intertwined process of creating and drawing upon meaning for the terms 'dignity' and 'slavery', I examine two historical movements that emerged after formal abolition.

Of Visible Race-Consciousness And Institutional Role: Equal Protection And Disparate Impact After Ricci And Inclusive Communities, Richard A. Primus

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Six years ago, Ricci v. DeStefano foregrounded the possibility that statutory disparate-impact standards like the one in Title VIl might be on a collision course with the Fourteenth Amendment's Equal Protection Clause. For many observers, it was a radically new possibility. Until that point, disparate-impact doctrine had usually been understood as an ally of equal protection rather than as a potentially conflicting aspect of the law. But between the 1970s and the beginning of the present century, equal protection doctrine became more individualistic and less tolerant of race-conscious actions intended to redress inherited racial hierarchies. Those developments put equal protection …

Rosalie Of The Poulard Nation: Freedom, Law, And Dignity In The Era Of The Haitian Revolution, Rebecca J. Scott, Jean M. Hébrard

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On December 4, 1867, the ninth day of the convention to write a new post-Civil War constitution for the state of Louisiana, delegate Edouard Tinchant rose to make a proposal. Under the Congressional Reconstruction Acts of1867, the voters of Louisiana had elected ninety-eight delegates-half of them men of color-to a constitutional convention charged with drafting a founding document with which the state could reenter the Union. Edouard Tinchant was a twentysix- year-old immigrant to New Orleans, principal of a school for freed children on St. Claude Avenue. Having made something of a name for himself as a Union Army veteran …

Microhistory Set In Motion: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Book Chapters

Sidney Mintz’s Worker in the Cane is a model life history, uncovering the subtlest of dynamics within plantation society by tracing the experiences of a single individual and his family. By contrast, Mintz’s Sweetness and Power gains its force from taking the entire Atlantic world as its scope, examining the marketing, meanings, and consumption of sugar as they changed over time. This essay borrows from each of these two strategies, looking at the history of a single peripatetic family across three long-lived generations, from enslavement in West Africa in the eighteenth century through emancipation during the Haitian Revolution in the …

Not Like The South? Regional Variation And Political Participation Through The Lens Of Section 2, Ellen D. Katz

Book Chapters

Congress voted last summer to reauthorize the expiring provisions of the Voting Rights Act. Among the reauthorized provisions is the Section 5 preclearance process, which requires "covered" jurisdictions to obtain federal approval before implementing changes to their voting laws. It is widely assumed that the reauthorization of Section 5 will survive constitutional scrutiny only if the record Congress amassed to support the statute documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. This paper takes issue with that assumption, arguing that precedent requiring such a record for new congressional legislation enforcing civil rights ought not apply …

Couples: Marriage, Civil Union, And Domestic Partnership, David L. Chambers

Book Chapters

In this country, during the last decades of the twentieth century, thousands of lesbians married other women and thousands of gay men married other men. Many of these couples recited traditional vows in churches and synagogues. Others have pledged to each other in their own backyards in words that they wrote themselves. But not one of these thousands of solemn occasions was recognized as creating a legally valid marriage. In the United States, each state has its own statute defining who can marry, and as far as the states were concerned, these couples were playing dress up. One state has …

Cultural Differences And Discrimination: Samoans Before A Public Housing Eviction Board, Richard O. Lempert, Karl Monsma

Book Chapters

In the 1971 case, Griggs v. Duke Power (401 U.S. 424), the United States Supreme Court held that if an employment test (or other mechanism for screening job applicants) had a disparate impact on a group protected by Title VII of The Civil Rights Act of 1964, discrimination in violation of the Act would be presumed unless the employer could prove the "job-relatedness" of the test. (For details on the Griggs case, see England 1992 chap. 5.) The Griggs case represents a high-water mark in the Supreme Court's jurisprudence of discrimination, for it establishes proof rules that can catch both …

Sex Discrimination (Update 1), Christina B. Whitman

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During the 1980s and early 1990s intense disagreement has arisen over the appropriate strategy for eliminating sex discrimination. Some courts and commentators argue for gender-neutral rules that define categories in purely functional terms. Others, who point out that gender-neutral rules promise equality only for women who can meet a ‘‘male standard,’’ think that legal distinctions between the sexes are not only appropriate but necessary, at least in cases involving perceived biological differences. Still others refuse to think in terms of sameness and difference. They analyze each issue by asking whether the disputed rule furthers the domination of men and the …

Jury Discrimination, James Boyd White

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Jury discrimination was first recognized as a constitutional problem shortly after the CIVIL WAR, when certain southern and border states excluded blacks from jury service. The Supreme Court had little difficulty in holding such blatant racial discriminationinvalid as a denial of the equal protection of the laws guaranteed by the recently adopted Fourteenth Amendment. But, beyond such obvious improprieties, what should the principle of nondiscrimination forbid? Some kinds of ‘‘discrimination’’ in the selection of the jury are not bad but good: for example, those incompetent to serve ought to be excused from service, whether their incompetence arises from mental or …

Individual Rights In The Work Place: The Burger Court And Labor Law, Theodore J. St. Antoine

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The Supreme Court, like other institutions, must play the part that the times demand, often with small regard for the personal predilections of its membership. The Warren Court and the Burger Court, in their respective contributions to the law of union-employer-employee relations, almost reversed the roles they might have been expected to assume. The major accomplishment of the Court in the labor area during the Warren era was a fundamental restructuring of intergovernmental relationships, while the Court's overriding concern throughout the Burger decade of the 1970s and beyond has been the defining of individual rights in the work place.

Minority Preferences In Law School Admissions, Terrance Sandalow

Book Chapters

In addressing the subject of "reverse discrimination," I want to caution at the outset against permitting the use of the word "discrimination" to prejudice consideration of the subject. "Discrimination" has, in recent years, become a bad word. It tends to be used as a shorthand for "unjustifiably unequal treatment." In its original and still proper meaning, however, the word is quite neutral. Discrimination merely means differentiation. It comes from a Latin word that means "to distinguish." Accordingly, when we discriminate-i.e., when we differentiate or distinguish-among people, the propriety of our action depends upon the reasons that we have acted as …

Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow

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... Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government

...Professor Ely [see pp. 208-216, herein] defends the constitutionality of racial preferences, essentially on the ground that the equal-protection clause should not be read to prevent a majority from discriminating between itself and a minority only to its own disadvantage. The predicate for an active judicial role is lacking, ... …

The School Desegregation Cases In Retrospect—Some Reflections On Causes And Effects, Yale Kamisar

Book Chapters

Recently, when asked to give a lecture on appellate advocacy, Justice Thurgood Marshall reminded his audience what Judge Benjamin Cardozo had once said: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass judges by." An outstanding example, he might have added, is Brown v. Board of Education.

In a sense, the significant changes which have occurred in the Black man's status in the last two decades had their beginnings in the rise of numerically, and hence politically, important Black communities in the North. For the importance of civil rights …