A SCHOLARLY BOOK REPOSITORY
Should government try to remedy persistent racial and ethnic inequalities by establishing and enforcing quotas and other statistical goals? Here is one of the most incisive books ever written on this difficult issue. Nathan Glazer surveys the civil rights tradition in the United States; evaluates public policies in the areas of employment, education, and housing; and questions the judgment and wisdom of their underlying premises—their focus on group rights, rather than individual rights. Such policies, he argues, are ineffective, unnecessary, and politically destructive of harmonious relations among the races.
Updated with a long, new introduction by the author, Affirmative Discrimination will enable citizens as well as scholars to better understand and evaluate public policies for achieving social justice in a multiethnic society.
From 1840 to 1960 the profoundest claim of Americans who fought the institution of segregation was that the government had no business sorting citizens by the color of their skin. During these years the moral and political attractiveness of the antidiscrimination principle made it the ultimate legal objective of the American civil rights movement. Yet, in the contemporary debate over the politics and constitutional law of race, the vital theme of antidiscrimination has been largely suppressed. Thus a strong line of argument laying down one theoretical basis for the constitutional protection of civil rights has been lost.
Andrew Kull provides us with the previously unwritten history of the color-blind idea. From the arguments of Wendell Phillips and the Garrisonian abolitionists, through the framing of the Fourteenth Amendment and Justice Harlan's famous dissent in Plessy, civil rights advocates have consistently attempted to locate the antidiscrimination principle in the Constitution. The real alternative, embraced by the Supreme Court in 1896, was a constitutional guarantee of reasonable classification. The government, it said, had the power to classify persons by race so long as it acted reasonably; the judiciary would decide what was reasonable.
In our own time, in Brown v. Board of Education and the decisions that followed, the Court nearly avowed the rule of color blindness that civil rights lawyers continued to assert; instead, it veered off for political and tactical reasons, deciding racial cases without stating constitutional principle. The impoverishment of the antidiscrimination theme in the Court's decision prefigured the affirmative action shift in the civil rights agenda. The social upheaval of the 1960s put the color-blind Constitution out of reach for a quartercentury or more; but for the hard choices still to be made in racial policy, the colorblind tradition of civil rights retains both historical and practical significance.
The Conscience of the Court celebrates the work of Justice William J. Brennan Jr., who served on the United States Supreme Court for thirty-four years (1956–1990).
Stephen L. Sepinuck and Mary Pat Treuthart introduce and present selected judicial opinions written by Justice Brennan on issues involving personal freedom, civil liberties, and equality. Brennan is ranked by many as the best writer ever to have served on the Supreme Court, and his written opinions depict real people, often in desperate, emotional situations. Remarkable for their clarity of analysis, for their eloquence, and for their forcefulness and persuasiveness, his opinions demonstrate that judicial thought need not be a proprietary enclave of lawyers or the intellectual elite.
The extended excerpts selected by Sepinuck and Treuthart highlight Brennan's approach to judicial decision making. Concerned always with how each decision would actually affect people's lives, Brennan possessed a rare quality of empathy. In Brennan, the editors note, "people and groups who lacked influence in society—Communists and flag burners, children and foreigners, criminal defendants and racial minorities"—found a champion they could count on "to listen to their causes and judge them unmoved by the passions of the politically powerful."
In their introduction to each opinion, the editors provide background facts, discuss how the excerpted opinion transformed the law or otherwise fit into the realm of constitutional jurisprudence, and delve into Justice Brennan's judicial philosophy, his method of constitutional interpretation, and the language he used.
The Court divides people into legal classes that receive varying levels of protection; gays and lesbians and other groups, such as the elderly and the poor, receive the least. Gerstmann reveals how these standards are used to favor certain groups over others, and also how Amendment 2 advocates used the Court's doctrine to convince voters that gays and lesbians were seeking "special rights" in Colorado.
Concluding with a call for wholesale reform of equal-protection jurisprudence, this book is essential reading for anyone interested in fair, coherent, and truly equal protection under the law.
Drawing upon little studied speeches, newspapers, magazines, and other public discourse, Condit and Lucaites survey the shifting meaning of equality from 1760 to the present as a process of interaction and negotiation among different social groups in American politics and culture. They make a powerful case for the critical role of black Americans in actively shaping what equality has come to mean in our political conversation by chronicling the development of an African-American rhetorical community. The story they tell supports a vision of equality that embraces both heterogeneity and homogeneity as necessary for maintaining the balance between liberty and property.
A compelling revision of an important aspect of America's history, Crafting Equality will interest anyone wanting to better understand the role public discourse plays in affecting the major social and political issues of our times. It will also interest readers concerned with the relationship between politics and culture in America's increasingly multi-cultural society.
A philosophical and legal argument for equal access to good lawyers and other legal resources.
Should your risk of wrongful conviction depend on your wealth? We wouldn’t dream of passing a law to that effect, but our legal system, which permits the rich to buy the best lawyers, enables wealth to affect legal outcomes. Clearly justice depends not only on the substance of laws but also on the system that administers them.
In Equal Justice, Frederick Wilmot-Smith offers an account of a topic neglected in theory and undermined in practice: justice in legal institutions. He argues that the benefits and burdens of legal systems should be shared equally and that divergences from equality must issue from a fair procedure. He also considers how the ideal of equal justice might be made a reality. Least controversially, legal resources must sometimes be granted to those who cannot afford them. More radically, we may need to rethink the centrality of the market to legal systems. Markets in legal resources entrench pre-existing inequalities, allocate injustice to those without means, and enable the rich to escape the law’s demands. None of this can be justified. Many people think that markets in health care are unjust; it may be time to think of legal services in the same way.
Drawing on an analysis of an original database of nearly 6,000 decisions made by over 900 judges on 50 state supreme courts over a quarter century, Judging Inequality documents two ways that state high courts have crafted policies relevant to inequality: through substantive policy decisions that fail to advance equality and by rulings favoring more privileged litigants (typically known as “upperdogs”). The authors discover that whether court-sanctioned policies lead to greater or lesser inequality depends on the ideologies of the justices serving on these high benches, the policy preferences of their constituents (the people of their state), and the institutional structures that determine who becomes a judge as well as who decides whether those individuals remain in office.
Gibson and Nelson decisively reject the conventional theory that state supreme courts tend to protect underdog litigants from the wrath of majorities. Instead, the authors demonstrate that the ideological compositions of state supreme courts most often mirror the dominant political coalition in their state at a given point in time. As a result, state supreme courts are unlikely to stand as an independent force against the rise of inequality in the United States, instead making decisions compatible with the preferences of political elites already in power. At least at the state high court level, the myth of judicial independence truly is a myth.
Judging Inequality offers a comprehensive examination of the powerful role that state supreme courts play in shaping public policies pertinent to inequality. This volume is a landmark contribution to scholarly work on the intersection of American jurisprudence and inequality, one that essentially rewrites the “conventional wisdom” on the role of courts in America’s democracy.
John M. Conley, William M. O'Barr, and Robin Conley Riner show how the microdynamics of the legal process and the largest questions of justice can be fruitfully explored through the field of linguistics. Each chapter covers a language-based approach to a different area of the law, from the cross-examinations of victims and witnesses to the inequities of divorce mediation. Combining analysis of common legal events with a broad range of scholarship on language and law, Just Words seeks the reality of power in the everyday practice and application of the law. As the only study of its type, the book is the definitive treatment of the topic and will be welcomed by students and specialists alike. This third edition brings this essential text up to date with new chapters on nonverbal, or “multimodal,” communication in legal settings and law, language, and race.
Conley and O'Barr show how the microdynamics of the legal process and the largest questions of justice can be fruitfully explored through the field of linguistics. Each chapter covers a language-based approach to a different area of the law, from the cross-examinations of victims and witnesses to the inequities of divorce mediation. Combining analysis of common legal events with a broad range of scholarship on language and law, Just Words seeks the reality of power in the everyday practice and application of the law. As the only study of its type, the book is the definitive treatment of the topic that will be welcomed by students and specialists alike.
An unprecedented account of social stratification within the US legal profession.
How do race, class, gender, and law school status condition the career trajectories of lawyers? And how do professionals then navigate these parameters?
The Making of Lawyers’ Careers provides an unprecedented account of the last two decades of the legal profession in the US, offering a data-backed look at the structure of the profession and the inequalities that early-career lawyers face across race, gender, and class distinctions. Starting in 2000, the authors collected over 10,000 survey responses from more than 5,000 lawyers, following these lawyers through the first twenty years of their careers. They also interviewed more than two hundred lawyers and drew insights from their individual stories, contextualizing data with theory and close attention to the features of a market-driven legal profession.
Their findings show that lawyers’ careers both reflect and reproduce inequalities within society writ large. They also reveal how individuals exercise agency despite these constraints.
The ideal, Stourzh argues, is a state, and indeed a world, in which individual rights, including the right to participate in politics equally, are clearly defined and possessed by all. Stourzh begins with ancient Greek thought contrasting isonomy—which is associated with the rule of the many—with “gradated societies,” oligarchies, and monarchies. He then discusses the American experiment with the development of representative democracy as well as the French Revolution, which proclaimed that all people are born and remain free and with equal rights. But progress on the creation and protection of rights for all has been uneven. Stourzh discusses specifically the equalization of slaves, peasants, women, Jews, and indigenous people. He demonstrates how deeply intertwined the protection of equal rights is with the development of democracy and gives particular attention to the development of constitutional adjudication, notably the constitutional complaint of individuals. He also discusses the international protection human rights. Timely and thought-provoking, Modern Isonomy is an erudite exploration of political and human rights.
A Federalist Notable Book
“An important contribution to our understanding of the 14th Amendment.”
—Wall Street Journal
“By any standard an important contribution…A must-read.”
—National Review
“The most detailed legal history to date of the constitutional amendment that changed American law more than any before or since…The corpus of legal scholarship is richer for it.”
—Washington Examiner
Adopted in 1868, the Fourteenth Amendment profoundly changed the Constitution, giving the federal judiciary and Congress new powers to protect the fundamental rights of individuals from being violated by the states. Yet, the Supreme Court has long misunderstood or ignored the original meaning of its key Section I clauses.
Barnett and Bernick contend that the Fourteenth Amendment must be understood as the culmination of decades of debate about the meaning of the antebellum Constitution. In the course of this debate, antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence, and the common law, as well as what is today called public-meaning originalism.
The authors show how these arguments and the principles of the Declaration in particular eventually came to modify the Constitution. They also propose workable doctrines for implementing the amendment’s key provisions covering the privileges and immunities of citizenship, due process, and equal protection under the law.
Ian Shapiro makes a compelling case that the overriding purpose of politics should be to combat domination. Moreover, he shows how to put resistance to domination into practice at home and abroad. This is a major work of applied political theory, a profound challenge to utopian visions, and a guide to fundamental problems of justice and distribution.
“Shapiro’s insights are trenchant, especially with regards to the Citizens United decision, and his counsel on how the ‘status-quo bias’ in national political institutions favors the privileged. After more than a decade of imperial overreach, his restrained account of foreign policy should likewise find support.”
—Scott A. Lucas, Los Angeles Review of Books
“Shapiro has a brief and compelling section on the importance of hope in his first chapter. This book enacts and encourages hope, with its analytical clarity, deep engagement of complicated political issues that resist easy theorizing, and emphasis on the politically possible.”
—Kathleen Tipler, Political Science Quarterly
“Offers important insights for thinking about democracy’s prospects.”
—Christopher Hobson, Perspectives on Politics
West shows how the "equal protection" clause, far from insulating the private spheres of culture, market, and home life, as is commonly held, directly targets abuses of power within those spheres. She develops a number of arguments for the modern relevance of this understanding, from the failure of the state to provide equal protection against private domestic violence, permitting a "private sovereignty" of patriarchal power within the home, to the the state’s failure to provide equal protection against material deprivation, allowing "private sovereignty" between economically privileged and desperate people in private markets.
West’s argument extends to the "liberty" prong of the due process clause, seen here as a protection of the positive, not negative, liberty of citizens, covering rights in such typically controversial areas as welfare, education, and domestic safety. This interpretation recasts a number of contemporary constitutional issues, such as affirmative action and hate speech, and points to very different problems—notably private, unchecked criminal violence and extreme economic deprivation—as the central constitutional dilemmas of our day.
Progressive Constitutionalism urges a substantive, institutional, and jurisprudential reorientation of our understanding of the Fourteenth Amendment, one that would necessarily be pursued through Congressional rather than judicial channels. In doing so, with attention to history and both feminist and critical race scholarship, it should reinvigorate our politics and our constitutional conversations—and, perhaps, point us toward a more just society.
One of the world’s foremost historians of Western political and legal thought proposes a bold new model for thinking about equality at a time when its absence threatens democracies everywhere.
How much equality does democracy need to survive? Political thinkers have wrestled with that question for millennia. Aristotle argued that some are born to command and others to obey. Antiphon believed that men, at least, were born equal. Later the Romans upended the debate by asking whether citizens were equals not in ruling but in standing before the law. Aldo Schiavone guides us through these and other historical thickets, from the first democracy to the present day, seeking solutions to the enduring tension between democracy and inequality.
Turning from Antiquity to the modern world, Schiavone shows how the American and the French revolutions attempted to settle old debates, introducing a new way of thinking about equality. Both the French revolutionaries and the American colonists sought democracy and equality together, but the European tradition (British Labour, Russian and Eastern European Marxists, and Northern European social democrats) saw formal equality—equality before the law—as a means of obtaining economic equality. The American model, in contrast, adopted formal equality while setting aside the goal of economic equality.
The Pursuit of Equality in the West argues that the United States and European models were compatible with industrial-age democracy, but neither suffices in the face of today’s technological revolution. Opposing both atomization and the obsolete myths of the collective, Schiavone thinks equality anew, proposing a model founded on neither individualism nor the erasure of the individual but rather on the universality of the impersonal human, which coexists with the sea of differences that makes each of us unique.
Tensions between religious freedom and equality law are newly strained in America. As lawmakers work to protect LGBT citizens and women seeking reproductive freedom, religious traditionalists assert their right to dissent from what they see as a new liberal orthodoxy. Some religious advocates are going further and expressing skepticism that egalitarianism can be defended with reasons at all. Legal experts have not offered a satisfying response—until now.
Nelson Tebbe argues that these disputes, which are admittedly complex, nevertheless can be resolved without irrationality or arbitrariness. In Religious Freedom in an Egalitarian Age, he advances a method called social coherence, based on the way that people reason through moral problems in everyday life. Social coherence provides a way to reach justified conclusions in constitutional law, even in situations that pit multiple values against each other. Tebbe contends that reasons must play a role in the resolution of these conflicts, alongside interests and ideologies. Otherwise, the health of democratic constitutionalism could suffer.
Applying this method to a range of real-world cases, Tebbe offers a set of powerful principles for mediating between religion and equality law, and he shows how they can lead to workable solutions in areas ranging from employment discrimination and public accommodations to government officials and public funding. While social coherence does not guarantee outcomes that will please the liberal Left, it does point the way toward reasoned, nonarbitrary solutions to the current impasse.
Scientific and social scientific evidence has informed judicial decisions and the making of constitutional law for decades, but for much of U.S. history it has also served as a rhetorical device to justify inequality. It is only in recent years that scientific and statistical research has helped redress discrimination—but not without controversy.
Scientific Evidence and Equal Protection of the Law provides unique insights into the judicial process and scientific inquiry by examining major decisions of the U.S. Supreme Court, civil rights advocacy, and the nature of science itself. Angelo Ancheta discusses leading equal protection cases such as Brown v. Board of Education and recent litigation involving race-related affirmative action, gender inequality, and discrimination based on sexual orientation. He also examines less prominent, but equally compelling cases, including McCleskey v. Kemp, which involved statistical evidence that a state’s death penalty was disproportionately used when victims were white and defendants were black, and Castaneda v. Partida, which established key standards of evidence in addressing the exclusion of Latinos from grand jury service. For each case, Ancheta explores the tensions between scientific findings and constitutional values.
Doris Marie Provine’s engaging analysis traces the history of race in anti-drug efforts from the temperance movement of the early 1900s to the crack scare of the late twentieth century, showing how campaigns to criminalize drug use have always conjured images of feared minorities. Explaining how alarm over a threatening black drug trade fueled support in the 1980s for a mandatory minimum sentencing scheme of unprecedented severity, Provine contends that while our drug laws may no longer be racist by design, they remain racist in design. Moreover, their racial origins have long been ignored by every branch of government. This dangerous denial threatens our constitutional guarantee of equal protection of law and mutes a much-needed national discussion about institutionalized racism—a discussion that Unequal under Law promises to initiate.
Kirsten Sword’s richly researched history reconstructs the stories of wives who fled their husbands between the mid-seventeenth and early nineteenth centuries, comparing their plight with that of other runaway dependents. Wives not Slaves explores the links between local justice, the emerging press, and transatlantic political debates about marriage, slavery and imperial power. Sword traces the relationship between the distress of ordinary households, domestic unrest, and political unrest, shedding new light on the social changes imagined by eighteenth-century revolutionaries, and on the politics that determined which patriarchal forms and customs the new American nation would—and would not—abolish.
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