It's all about the court(s) : general remarks on the american idea of judical impact on the scope of civil rights (original) (raw)
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Brigham Young University Education and Law Journal, 1993
Part of the Civil Rights and Discrimination Commons, and the Courts Commons This Article is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Brigham Young University Education and Law Journal by an authorized editor of BYU Law Digital Commons. For more information, please contact
Toward a Jurisprudence of the Civil Rights Acts
SSRN Electronic Journal, 2013
Toward a Jurisprudence of the Civil Rights Acts Robin L. West What is the nature of the "rights," jurisprudentially, that the 1964 Civil Rights Act 1 legally prescribed? And, more generally, what is a "civil right"? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our "civil rights," on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: our civil rights are quasiconstitutional rights to be free of discrimination in the private as well as public world. 2 But this conventional lawyerly understanding-basically, that "civil rights" are "antidiscrimination rights"-is clearly inadequate, certainly with respect to civil rights generally but also, and more tellingly, even with respect to the rights created and then protected by the '64 Act itself. First, on the general point: some of the "civil rights" sought or held across our history have not been antidiscrimination rights of any sort at all-labor rights, welfare rights, free speech rights, and the constitutional rights of criminal defendants have all, at various times, been championed as "civil rights," and these rights are neither logically nor jurisprudentially tied to any conception of antidiscrimination. 3 But furthermore, even the "civil rights" which are defined and then protected against discrimination by the 1964 Civil Rights Act, as well as by various Civil Rights Acts both before and subsequent to it, are not, in circular fashion,
US: the revocation of civil rights
Race & Class, 1990
In the United States today we are witnessing a reversal of many of the legal and political reforms stimulated by the civil rights movement of the 1950s and 1960s. This repeal of what may be termed the Second Reconstruction is proceeding in much the same manner as the reversal, a hundred years ago, of the First Reconstruction reforms that followed the American Civil War. In both cases, the executive and judicial branches of the federal government worked together in an increasingly racist, popular and intellectual culture to turn the clock back. In the last decades of the nineteenth and the twentieth
The Long Civil Rights Act and Criminal Justice
Boston University Law Review, 2015
INTRODUCTIONFrom where we stand, fifty years later, the Civil Rights Act is both the culmination of seventy years of political agitation to persuade the country to accept the discipline and fundamental intent of the Reconstruction Era civil rights statutes, as well as the birth of the modern civil rights statutory regime. The civil rights acts immediately preceding the 1964 Act-one in 1957 and a second in 1960-were limited and ineffectual, and those that followed were branches from the tree planted in 1964. This Symposium focuses on the challenges of implementing the 1964 Act and the doctrinal dilemmas it has spawned, and rightfully so. I take a slightly different tack here, for I consider what the 1964 Act failed to address. I explore the relationship between what I call the "Long Civil Rights Act"1 and the persistent denial by state authorities of what I shall call "justice rights"-the rights to freedom from racial violence and from discrimination in the admini...
Annales. Ethics in Economic Life, 2018
This article examines the U.S. Supreme Court's lesser-known educative role as an egalitarian institution within a broader deliberative democratic process. Scholars have argued that the Court's long asserted power of judicial review, especially in the equal protection and civil rights context, has been an overreach of the judicial branch's constitutional authority and responsibilities. Normative and empirical critiques have been centered on the aims of judicial review, and the challenges it poses in American political life. A core issue surrounding these critiques is that Justices are appointed not elected, and thus undermine the principle of majority rule in the U.S. constitutional democratic order. Although these critiques are legitimate in terms of claims about unelected Supreme Court Justices' seemingly discretionary powers over elected legislative bodies, and the uncertain policy implications of judicial pronouncements on the broader society, there is, nevertheless, a positive application of judicial review as a tool Justices use as part of their educative role overcoming the so-called "counter-majoritarian difficulty." Through a close reading of oral arguments in Brown vs. Board of Education (1954) and San Antonio vs. Rodriguez (1973)-two landmark cases invoking the Equal Protection Clause of the 14th Amendment to the federal Constitution-the article shows how appointed Justices adjudicate individual cases on appeal and attempt to educate (through an argumentative, reason-based and question-centered process) citizen-litigants and their legal representatives about the importance of equality, fairness and ethical responsibility even prior to rendering final decisions on policy controversies that have broader national social, political and economic implications.
Comparative Judging of Civil Rights: A Transnational Critical Race Theory Approach
2002
Studies consistently demonstrate that the act of judging is influenced by judges' personal perspectives and experiences. For instance, research has demonstrated that empirically U.S. Supreme Court justices' behavior is motivated, in large part, by their individual attitudes orjudicial philosophies.' In addition, research on the U.S. chief justice's distribution of opinion assignments also suggests that ideology plays a role inasmuch as those justices whose preferences are more closely aligned with the chief justice will be assigned to author opinions. 2 Furthermore, empirical research indicates that the influence of ideology on judges also extends to federal appellate court judges in race relations cases. 3 Transnational comparative research also suggests that the politicized conduct of judges is not exclusive to the United States. 4 For instance, in a recent comparison of the judicial task ofmaking opinion assignments within the United States, Canada (post-Charter years) and South Africa (apartheid era), the study found that chiefjustices in all the countries did not assign judges to panels randomly, but rather were influenced by the ideology of the sitting judge and the issues presented in the case. 5 The study concluded that judging is a political behavior that exhibits similar influence to ideology, despite the vastly different Copyright 2003, by LOUISIANA LAW REVIEW.
The Odd Evolution of the Civil Rights State
2014
Law reviews are filled with sophisticated and often impassioned debates over the use of racial and gender preferences in employment, education, and electoral districting. As a political scientist I am particularly interested in a puzzle that has received far less attention in the legal literature: How have such highly unpopular programs become so well entrenched in public policy and in the practices of employers and educational institutions? In this Article, I will suggest that part of the answer lies in the nature of the peculiar regulatory regime that has evolved since 1964 to interpret and enforce nondiscrimination rules relating to race, gender, and disability. This regulatory regime, which governs the conduct of nearly every employer, school, and unit of state and local government in the country, is notable for its lack of transparency and accountability--features that, for better or for worse, insulate it from ordinary politics. That the use of racial and gender preferences la...