Law, race and education: a study of the role of the court expert in the Boston schools desegregation litigation

In the United States, following the case of Brown v. Board of Education (1954), federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design and implement a desegregation plan which required the restructuring of the city's public school system and judicial oversight lasting for a period of twenty years raising questions of legitimacy which have become more important over time. Moreover, the Boston plan embraced an initial commitment to educational enhancement, but the educational outcomes were subsequently marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education and thus largely doomed to fail. This inquiry takes as its focus a series of memos written by the expert advisors to the judge. They cover more or less every aspect of the Boston schools case but came into the public domain only once the case was closed and the judge donated his chambers papers to the Healey Library, University of Massachusetts in 1997. Little studied by scholars to date, these papers permit questions to be explored in a way which was not possible at the time and provide a focus for exploring contemporary concerns. To that extent, this research breaks new ground. This work draws on the archival resource to develop narratives of the experts' work which move from the initial underlying legitimacy concerns of traditional liberal analysis towards perspectives which foreground the indeterminacy of legal rights and are thus skeptical of the long-term value of rights-based constitutional litigation. The outline of a theory of the role of the court experts in schools desegregation with which this work concludes constitutes an attempt to theorize the relationship between the judge and his assistants in such a way as to make a further contribution to these debates

Justice Must Be Seen to Be Done: A Contextual Reappraisal

This article locates Lord Hewart CJ’s well-known dictum ‘justice must be seen to be done’ in the context of early 20th century concerns with the composition of the League of Nations’ Permanent Court of International Justice. These concerns related to perceptions of judicial independence but his remarks now sustain an impartiality analysis criticised both for its amorphous nature and for its failure to address the relational dimensions of public confidence and legitimacy. In the 21st century, the composition of the judicial bench is once again an issue of concern but the imperatives are those of democracy and accountability. From this perspective, the appearance of justice is best served by judges who are reflective of the community they are appointed to serve. The ‘fair reflection principle’ of judicial international standards brings renewed attention to the issue of the composition of the judicial bench, giving contemporary substance to Lord Hewart’s remarks and illustrating further the dynamic connection between evolving national and international norms

Perspectives on Administrative Justice: contemporary challenges and opportunities - an introduction

Recognition of human rights protection as a central theme of concern has enriched constitutional discourse but diverted attention from the positive role of the executive in the promotion and delivery of justice. The papers abstracted in this collection seek to redress this contemporary imbalance in public law theory and scholarship with a variety of fresh perspectives on the themes and mechanisms of administrative justice. Presented virtually to the Law and Society 2020 annual meeting at a roundtable organised by Professors Anne Richardson Oakes of the Centre for American Legal Studies Birmingham City University U.K. and Ricardo Perlingeiro of Estácio de Sá University, Rio de Janeiro, the papers represent work in progress and come out of on an ongoing project carried out jointly with the Post-Graduate Law Program of the University Estácio de Sá/PPGD-Unesa (with support of the Post-Graduate Administrative Justice Program of the Fluminense Federal University/PPGJA-UFF) in partnership with the Centre for American Legal Studies (School of Law at Birmingham City University)

Uncooperative federalism or dinosaur constitutionalism: The affordable care act and the language of states rights

State legislative opposition to President Obama’s healthcare reforms invites renewed attention to the dynamics of power sharing and the allocation of sovereignty in the U.S. federal constitution. Between 2010 and early 2016, 22 state legislatures enacted laws and measures challenging or opting out of broad health reforms related to mandatory provisions of the Patient Protection and Affordable Care Act (PPACA). Some scholars have seen in these bills a resurgence of the doctrine of nullification, discredited because of its historical associations, specifically with those of secession, Jim Crow and Massive Resistance. Others take a more nuanced view and argue that the so called “Health Care Freedom Acts” were pragmatically designed to trigger challenges to the PPACA that can work within the contemporary framework of constitutional orthodoxy. This paper analyses the language of the Health Care Freedom Acts and compares them with the Massive Resistance resolutions to enquire whether states have learned from the lessons of the past to develop more successful strategies for challenging the unwanted reach of federal law and regulation

California’s Civil Grand Juries and Prison Conditions 2007-17

In this paper we evaluate the potential for California’s so-called civil grand juries to detect substandard prison conditions and maltreatment of inmates and make recommendations for improvement. We describe relevant reports by grand juries between 2007-17 and evaluate the effectiveness of these in improving conditions in a representative sample of counties. We conclude that the civil grand jury is a potentially effective tool for oversight but its effectiveness is hampered by competing duties, variable investigative methodologies, and lack of clear objectives for performance of their statutory duties

UPR Project at BCU - Joint Brazil Stakeholder Submission

This report evaluates the extent to which Brazil has implemented recommendations from cycle three which, directly or indirectly, concern the rights of pregnant women and mothers deprived of liberty. It discusses and proposes recommendations across four main topics: (1) female overincarceration, (2) implementation of detention alternatives, (3) prison conditions and healthcare, (4) violence, cruel, inhuman or degrading treatment, and accountability