Brown and the Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts

Brown v. Board of Education, the Supreme Court\u27s celebrated 1954 decision that ended segregation in the United States, did not end a caste based inequality among the races. One of the nations currently struggling with such a legacy of discrimination is Brazil. Brazil\u27s path to overcome structural inequality has some interesting parallels and differences with the American experience. Writings by Brazilian legal scholars such as Joaquim B. Barbosa Gomes and Hedio Silva Jr. had bolstered the thought that the American civil rights experience has lessons for Brazil. This experience, which was greatly shaped by Brown, contributed to the growth of Brazilian legal thought against racial inequality. For example, critics of Brazilian jurisprudence noted how American courts found constitutional space to permit affirmative action while simultaneously ruling that quotas violate equal protection. Brazilian legal scholars looked to the U.S. as well as other nations to find ways for law to be employed to break down structural inequalities. Nevertheless, despite the achievement of de jure egalitarianism, inequalities persist in Brazilian society. This can be an important cautionary lesson for those who might believe that formal equality before the law is all that is required to achieve racial justice. As it did for Brazil, Brown v. Board of Education should cause us to ask broader, comparative questions concerning law and inequality. By looking at Brown in a comparative context as part of a larger worldwide effort to tear down walls of caste and race, we can get a more complete picture of the true importance of that landmark decision

The Resurgent Second Amendment

This review essay explores the extent to which Adam Winkler and Robert H. Churchill address the resurgence of the Second Amendment debate in their respective books, Gunfight: The Battle Over the Right to Bear Arms in America, and To Shake Their Guns in the Tyrant\u27s Face: Libertarian Political Violence and the Origins of the Militia Movement in light of the Supreme Court\u27s decision in District of Columbia v. Heller. Cottrol approves of Winkler\u27s Gunfight as an excellent review of the background and view of the oral argument presented to the Supreme Court in Heller, but critiques it as falling short of an in-depth explanation of the intellectual history of the Second Amendment. Cottrol includes a favorable critique of Churchill\u27s To Shake their Guns as a more thorough look at the intellectual history and development of the militia movement in the 1990s

Brown and the Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts

Brown v. Board of Education, the Supreme Court\u27s celebrated 1954 decision that ended segregation in the United States, did not end a caste based inequality among the races. One of the nations currently struggling with such a legacy of discrimination is Brazil. Brazil\u27s path to overcome structural inequality has some interesting parallels and differences with the American experience.Writings by Brazilian legal scholars such as Joaquim B. Barbosa Gomes and Hedio Silva Jr. had bolstered the thought that the American civil rights experience has lessons for Brazil. This experience, which was greatly shaped by Brown, contributed to the growth of Brazilian legal thought against racial inequality. For example, critics of Brazilian jurisprudence noted how American courts found constitutional space to permit affirmative action while simultaneously ruling that quotas violate equal protection. Brazilian legal scholars looked to the U.S. as well as other nations to find ways for law to be employed to break down structural inequalities. Nevertheless, despite the achievement of de jure egalitarianism, inequalities persist in Brazilian society. This can be an important cautionary lesson for those who might believe that formal equality before the law is all that is required to achieve racial justice.As it did for Brazil, Brown v. Board of Education should cause us to ask broader, comparative questions concerning law and inequality. By looking at Brown in a comparative context as part of a larger worldwide effort to tear down walls of caste and race, we can get a more complete picture of the true importance of that landmark decision

A Tale of Two Cultures: Or Making the Proper Connection between Law, Social History and the Political Economy of Despair

In this Article, Professor Cottrol examines a pervasive culture of pessimism amongst a minority of underclass Black Americans the likes of which must be addressed if America\u27s laws and public policy is to complete the unfinished work of the Civil Rights Revolution. The author argues that the development this culture is the result of long-term historical trends, the results of which came to fruition after the Second World War. He suggests Americans must shift their focus from familiar histories of southern slavery and Jim Crow to an examination of the histories of race relations in northern cities. Further, the author argues that to understand the law of race, Americans must examine how formally egalitarian legal doctrine was applied in actual practice. In conclusion, racially tailored ameliorative efforts can be constitutionally viable and the author discusses legislation that has the potential to help transform underclass culture

Second Amendment, Constitutional Dysfunction or Necessary Safeguard?

This Essay was delivered at the Boston University School of Law Symposium titled “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.” The Essay challenges the assumption that the Second Amendment historically has provided a barrier to a desirable policy result: radical gun control or gun prohibition. It also challenges the assumption that such a policy is indeed desirable. The Essay traces the history of judicial engagement with the Second Amendment, including the Supreme Court’s most recent pronouncement recognizing the right to bear arms as an individual right in Heller and McDonald, and lower federal courts’ subsequent application of this right. It concludes that the principle that there is a need for the means of self-defense, that it should not be taken away, and that it is dangerous to force a people to rely solely on the state for protection, remains sound policy, and not an example of constitutional dysfunction

Justice Advanced: Comments on William Nelson\u27s Brown v. Board of Education and the Jurisprudence of Legal Realism

The Supreme Court’s landmark school desegregation decision in Brown v. Board of Educationbrings us face-to-face with how the world of race, law, caste, and the Supreme Court has changed since that time. Brown has contributed to a view that the courts are perhaps best equipped to handle the difficult issues. Whether that view will prove to be good law or good policy in the long run remains to be seen. Nonetheless, it does reflect the jurisprudential journey that took the Court from its previously indifferent position on minority rights towards that a protector of such rights. The evolution in the Court\u27s judicial reasoning towards legal realism, as well as the shifting of racial mores in the broader society, played a role in bringing about Brown. It allowed the Court to take into consideration the impact of the legal history of race. In fact, Justice Warren gave short shrift to the framers\u27 intentions under a jurisprudential legal realism, assuming one defines legal realism as a policy-oriented philosophy informed by newer developments of social and behavioral sciences. While the Brown Court followed and ratified changes in thinking that had already occurred among the nation’s intellectual and cultural pace-setters, the Court’s jurisprudence since that 1954 decision has been far more conservative. Brown made a difference because the advocates that urged desegregation and the Court that accepted their arguments tapped into the changed mood and needs of the nation. In doing so, they proved that they had learned the realist lesson well

Legal Scholarship Symposium: The Scholarship of Lawrence M. Friedman

Lawrence M. Friedman has achieved a singular preeminence as a legal historian for articulating a new vision of legal history as a discipline in his 1973 work entitled A History of American Law. This book treats American law as a mirror of society. At the time, Friedman\u27s vision was still something quite new in American legal historiography. James Willard Hurst\u27s notions of legal history as a sociolegal inquiry would heavily influence Friedman, helping to move the field into new and often surprising precincts. Friedman\u27s approach to legal history is one that introduced us to previously unexamined actors and institutions.Whether looking at criminal justice in the limited context of late nineteenth-century Alameda County or giving us a broad overview of criminal law and its administration across the broad sweep of the nation\u27s history, Friedman makes an important contribution precisely because of his ability to integrate the legal and the social. Crime and society\u27s responses to crime involve law with the society\u27s broader culture in a way that no other area of the law can. At its base, criminal law and its administration involve fundamental questions of a society\u27s moral vision and the mobilization of the public behind that vision. It also deeply involves questions of social hierarchy and power. These are legal questions, but behind those legal questions stand powerful questions concerning a society and its culture. The history of American criminal law has benefited greatly from having Friedman apply his skilled law and society lens to a once neglected field in legal history

Legal Scholarship Symposium: The Scholarship of Lawrence M. Friedman

Lawrence M. Friedman has achieved a singular preeminence as a legal historian for articulating a new vision of legal history as a discipline in his 1973 work entitled A History of American Law. This book treats American law as a mirror of society. At the time, Friedman\u27s vision was still something quite new in American legal historiography. James Willard Hurst\u27s notions of legal history as a sociolegal inquiry would heavily influence Friedman, helping to move the field into new and often surprising precincts. Friedman\u27s approach to legal history is one that introduced us to previously unexamined actors and institutions. Whether looking at criminal justice in the limited context of late nineteenth-century Alameda County or giving us a broad overview of criminal law and its administration across the broad sweep of the nation\u27s history, Friedman makes an important contribution precisely because of his ability to integrate the legal and the social. Crime and society\u27s responses to crime involve law with the society\u27s broader culture in a way that no other area of the law can. At its base, criminal law and its administration involve fundamental questions of a society\u27s moral vision and the mobilization of the public behind that vision. It also deeply involves questions of social hierarchy and power. These are legal questions, but behind those legal questions stand powerful questions concerning a society and its culture. The history of American criminal law has benefited greatly from having Friedman apply his skilled law and society lens to a once neglected field in legal history