In the Search for Justice: Passion and the Historiography of Law and Race in the Writings of Judge A. Leon Higginbotham, Jr (original) (raw)
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This publication is in copyright. Subject to statutoty ex~eption and to the provisions of relevant collective licensing agreements. no reproduction of any part may take place without the written permission of Cambridge University Press.
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Critical Legal History (CLH) is currently being subjected to sustained critique and re-examination by some legal historians. This review essay looks at this debate in the context of two recent books on American legal history: Christopher Tomlins’s Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (2010) and Laura Edwards’s The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (2009). In keeping with the thrust of CLH scholarship, both books problematize the connection between law and narratives of freedom and equality in American history, and both show law as a significant force for non-freedom and inequality. Yet, in a recent symposium on Robert Gordon’s classic article ‘Critical Legal Histories’ (1984), both authors chose to distance themselves from CLH. After explaining what is significant and important about each book, this review essay describes the debate in that symposium. Notwithsta...
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School. I would like to thank the many readers of early drafts of this Article for their helpful comments, as well as Worigia Bowman, Blondel Pinnock, and Mano Raju for their research assistance. I owe a special debt of gratitude to the participants in the first Workshop on Critical Race Theory, held in 1989 at the University of Wisconsin (Madison), and to Katherine Harrison, who remembered for me. Work on this Article was supported by the Class of 1932 Law Research/ Writing Fund and by Columbia Law School alumni. 1. JOHN DEWEY, PHILOSOPHY AND CIVILIZATION 9 (2d ed. 1968). The book was originally published in 1931. 2. This Article uses the terms "Afro-American," "African-American," and "black American" interchangeably. In recent years, the question of racial designation in law review articles has come to require a footnote (usually at the beginning of a piece) explaining the author's particular usage. See, ag., Kimberl6 Williams Crenshaw, Race, Reform and Retrenchment, 101 HARV. L. REV. 1331, 1332 n.2 (1988) (using "African-American" and "Black" and explaining the capitalization of the latter term on the ground that "Blacks... constitute a specific cultural group and, as such, require denotation as a proper noun"); Randall L. Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. RE. 1745, 1745 n.2 (1989) (employing the term "white" in conformity with "implicit understandings of racial identity" in the United States, and using a panoply of other terms-some racial, some ethnic, some cultural-to designate "non-whites"); and Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. RE'. 401, 404 n.4 (1987). For representative press accounts and opinions on one recent chapter in the long history of American debate regarding the practice of racial naming, see Jesse Jackson,
Law and History Review, 2010
There is an interesting section on the transition to the job-the heavy learning curve, the problems of getting an office running, and the remarkable variety of cases federal judges confront. The chapter on the nature of the job holds few surprises. Most judges like the job with its broad range of subjects and conflicts, although there are complaints about the isolation. It is, though, disturbing to see such distinguished judges and ex-judges as Abner Mikva, Robert Bork, and James Buckley agreeing, at least on their notable Court of Appeals (D.C. Cir.), that after the conference on a case, the judge will go back and likely never speak again in person with his colleagues about it. When coupled with the "revelation" in another chapter that the law clerks are chiefly responsible for opinions (183), one cannot help wondering what creative, thoughtful, and analytical work federal judges are actually doing. A chapter partially named "Getting Along with Others" encompasses Alfred Goodwin's (9th Cir.) discussion of political trials. There is an interesting, though troubling, discussion of past tensions on the Seventh Circuit Court of Appeals and two pages allotted to Andrew Hauk's (C.D. Cal.) oral history demonstrating his "outrageous rudeness." Finally, Joyce Hens Green sums up what makes a good judge: "A judge has to have courage and express the way it is in her opinions, whether oral or written, not just to ride with the waves of the time, economically, politically, emotionally" (212). Both specialists and nonspecialists will learn from Domnarski's book. Nonspecialists will receive a painless introduction to the lives of federal judges and the conditions under which they work. The scholar will pick up a variety of interesting tidbits with a reminder of what a valuable resource for research on the courts oral histories can be.