DOCSLIB.ORG

Public Law from the Bottom Up

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

PUBLIC LAW FROM THE BOTTOM UP WILLIAM N. ESKRIDGE, JR.* I. INTRODUCTION: LAW FROM THE BOTTOM UP ......... 142 A. Law Comes from the "Bottom Up," Not from the "Top Down" . ........................ 150 B. Positive Law is Not Neutral and Involves Strug- gle Among Competing Visions ................ 151 C. Official Choice of Law Does Not Necessarily Settle Matters ......................... 152 II. DOCTRINAL ILLUSTRATIONS OF LAW FROM THE BOTTOM U P .................................. 153 A. Statutory Interpretation (Job Discrimination)....... 153 B. Constitutional Law (Gender Discrimination) ...... 156 C. Tort Law (Cigarettes dnd the Anti-Smoking Cam- paign) ............................. 160 III. LAW AND POLITICAL CONSENSUS ............... 163 A. Statutory Interpretation (Griggs) .............. 170 B. Administrative Law (Chevron)............... 173 C. ConstitutionalLaw (Abortion)............... 177 IV. CONCLUDING NORMATIVE QUALMS .............. 179 * Professor of Law, Georgetown University Law Center, Visiting Professor of Law, Harvard Law School. B.A., Davidson College; M.A., Harvard University; J.D., Yale Univer- sity. This article is adapted from the West Virginia University College of Law, Edward G. Donley Memorial Lectures I delivered in March 1994. I am grateful to the Faculty of the College of Law for extending me this invitation and to Dean Teree Foster for hosting my stay and giving me excellent comments on the Lectures. This article has greatly benefit- ted from her comments and the questions posed by faculty and students at the Lectures. As a native West Virginian, I am honored by the chance to have developed the ideas in this article at my home state. William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term - Foreword: Law as Equilibrium, 108 Harv. L. Rev. 27 (1994), explores related themes in connection with this year's Supreme Court cases. HeinOnline -- 97 W. Va. L. Rev. 141 1994-1995 WEST VIRGINIA LAW REVIEW [Vol. 97:141 I. INTRODUCTION: LAW FROM THE BoTToM UP American public law has traditionally been understood as an insider's game. Within this understanding, law is following the rules laid down, particularly those laid down by the United States Supreme Court. Rig- orous legal analysis treats Supreme Court opinions as self-contained exercises to be understood or criticized from the inside - from the point of view of the Supreme Court Justices who write them. Thus, a turn-of-the-century formalist would try to situate a decision in the larger geometric unity of law, or might fault a decision for being in- consistent with precedent. Although the realists of the 1920s rejected this sort of analysis and more aggressively criticized the Court, they too read the cases through the eyes of the Court - albeit a Court fol- lowing a political or personal agenda. The legal process school of the 1950s was realist in understanding law as policy and formalist in eval- uating the Court through criteria such as reasoned elaboration, defer- ence, and coherence with neutral or authoritative principles. But like the formalists and the realists before them, legal process thinkers were insiders, viewing law from the perspective of the New Deal Presidency and Court. These three generations of differently disposed legal thinkers - the formalists, the realists, the legal process thinkers - shared a similar vision: law is something handed down to the populace by high officials following professional norms, and the citizenry is obligated to follow the rules simply because they are the rules handed down by the duly established mechanisms for handing down rules.' Let me be explicit about the assumptions of traditional law: 0 It is handed down by officials at the "top" to citizens below. We can call this the top-down assumption.2 1. See, e.g., Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Prob- lems in the Making and Application of Law 4-5 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958)); H. L. A. HART, THE CONCEPT OF LAW (1961). 2. As used in this article, the top-down, bottom-up terminology was first used in JACK KNiGHT, INSTtJTIONs AND SOCIAL CONFLICT (1992). The terminology is used in similar ways in Mar J. Matsuda, Looking to the Bottom: Critical Legal Studies and Repa- rations, 22 C.R.-C.L. L. REV. 323 (1987); Richard A. Posner, Legal Reasoning from the HeinOnline -- 97 W. Va. L. Rev. 142 1994-1995 1994] PUBLIC LAW FROM THE BOTTOM UP o Law can be criticized only from the inside. Grounds for criticism must be objective and potentially universal: Is the decision consistent with other decisions? Does it rest upon erroneous factual premises? Did it ignore the views of experts charged with solving such problems? This is the neutrality assumption of public law. o Our obligation to follow this law, its legitimacy, derives from criteria internal to law. Was the decision rendered by officials charged with making such decisions, and was it de- livered according to the regular procedures for making such decisions? This is the positivism assumption. This understanding of law makes less sense to the Baby Boom generation that came of age in the 1960s.' For most of us, "law" meant not just Brown v. Board of Education,4 the 1954 Supreme Court decision that declared state-required school segregation inconsis- tent with the Equal Protection Clause of the Constitution, but also the private resistance to the de jure apartheid that Brown overthrew. The story of Brown illustrates the decline and fall of the top-down model of public law. Equally, it suggests the appeal of a model in which public law comes from the "bottom up," representing a political strug- gle among different "nomic" communities. The legal process generation, the most eminent legal thinkers of the 1950s, immediately praised Brown as a good decision and claimed it as one consistent with their strongly top-down vision of law. Justice Felix Frankfurter, a former law professor, blessed the decision with his acquiescence, and his acolytes (usually former law clerks) immediately spread the word that Frankfurter's strategizing within the Court had Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights, 59 U. CHi. L. REv. 433 (1992). 3. Boomer critiques include ROBERT GORDON, LEGAL THOUGHT AND PRACTICE IN THE AGE OF AMERICAN ENTERPRISE, 1870-1920, in PROFESSIONS AND PROFESSIONAL IDEOL- OGIES IN AMERICA (G. Geison ed. 1983); Thomas Grey, Langdell is Orthodoxy, 45 U. PFrr L. REv. 1 (1983); Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151 (1985). See also William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 MICH. L. REv. 707 (1990). 4. 347 U.S. 483 (1954). HeinOnline -- 97 W. Va. L. Rev. 143 1994-1995 WEST VIRGJNLA LAWREVIEW [Vol. 97:141 enabled the decision to be unanimous.5 Henry Hart and Albert Sacks, who were then drafting their classic materials on The Legal Process,' lavishly praised Brown as reflecting a great and enduring "principle" of racial equality.7 Alexander Bickel adapted his memorandum on the history of the Equal Protection Clause, which he had written when he was law clerk for Frankfurter, into a dense and detailed article con- cluding that Brown was defensible from an historical point of view.' Paul Freund, Archibald Cox, and other scholars too numerous to men- tion hopped on the Brown Bandwagon.9 Notwithstanding this enthusiasm, some legal process thinkers un- derstood that Brown challenged their way of thinking. The most nota- ble skeptic was Herbert Wechsler, a professor at Columbia whose 1959 essay praised Brown as a decision he liked, but who wondered whether it was actually "law."' After all, Chief Justice Warren's opinion im- plicitly overruled several Supreme Court precedents and made no effort to defend the overrulings as supported by a textual interpretation of the Constitution or by the original discussions surrounding the adoption of the Fourteenth Amendment. Given this default, the only defense of the decision, according to Wechsler, would be for the decision to rest upon some "neutral principle," through an opinion "resting with respect to 5. For a recent example of this from a former Frankfurter clerk particularly close to the Justice, see Philip Elman, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 HARV. L. REV. 817 (1987). More bal- anced accounts include Mark Tushnet & Katya Lezin, What Really Happened in Brown v. Board of Education, 91 COLUM. L. REV. 1867 (1991); Dennis Hutchinson, Unanimity and Desegregation:Decisionmaking in the Supreme Court, 1954-1958, 68 GEO. L.J. 1 (1979). 6. Hart & Sacks, supra note 1. 7. See Albert M. Sacks, The Supreme Court, 1953 Term - Foreword, 68 HARV. L. REV. 96 (1954); Letter from Henry M. Hart, Jr., to Harry Wellington, Dec. 9, 1959, FRANKFURTER PAPERs, Harvard Law School Library, Box 187, Folder 20. 8. Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REv. 1 (1955). 9. Paul Freund, Storm over the American Supreme Court, 21 MOD. L. REv. 345 (1958); Archibald Cox, The Supreme Court, 1965 Term - Foreward: Constitutional Adjudi- cation and the Promotion of Human Rights, 80 HARV. L. REV. 91 (1966). 10. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959). Although Wechsler was virtually the only respectable law professor who was willing to question the "lawlikeness" of Brown, it is my judgment that his doubts were widely but silently shared among law professors. HeinOnline -- 97 W. Va. L. Rev. 144 1994-1995 1994] PUBLIC LAW FROM THE BOTTOM UP every step that is involved in reaching judgment on analysis and rea- sons quite transcending the immediate result that is achieved."" Under this criterion, Brown is questionable, Wechsler observed, in some much quoted analysis: [Brown] must have rested on the view that racial segregation is, in princi- ple, a denial of equality to the minority against whom it is directed ...
Recommended publications
  • 1970 Annual Report of the FEDERAL TRADE COMMISSION

    1970 Annual Report of the FEDERAL TRADE COMMISSION

    HD2775 1970 C.2 Annual Report of the FEDERAL TRADE COMMISSION 1970 Annual Report of the FEDERAL TRADE COMMISSION For the Fiscal Year Ended June 30, 1970 --------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price 40 cents (paper cover) Federal Trade Commission CASPAR W. WEINBERGER, Chairman PAUL RAND DIXON, Commissioner PHILIP ELMAN, Commissioner EVERETTE, MACINTYRE, Commissioner MARY GARDINER JONES, Commissioner BASIL J. MEZINES, Executive Assistant to Chairman JOSEPH W. SHEA, Secretary JOHN A. DELANEY, Acting Executive Director JOHN V. BUFFINGTON, General Counsel EDWARD CREEL, Director of Hearing Examiners FRANK C. HALE, Director, Bureau of Deceptive Practices ROY A. PREWITT, Acting Director, Bureau of Economics CHARLES R. MOORE, Acting Director, Bureau of Field Operations CECIL G. MILES, Director, Bureau of Restraint of Trade HUGH B. HELM, Acting Director, Bureau of Industry Guidance HENRY D. STRINGER, Director, Bureau of Textiles and Furs WILLIAM D. YANCEY, Acting Comptroller JOHN A. DELANEY, Director, Office of Administration DAVID H. BUSWELL, Director, Office of Public Information ii EXECUTIVE OFFICES OF THE FEDERAL TRADE COMMISSION Pennsylvania Avenue at Sixth St., NW. Washington, D.C. 20580 Field Offices Atlanta, Ga. Los Angeles, Calif. Room 720 Room 13209 730 Peachtree St. N.W. 11000 Wilshire Blvd. Zip code: 30308 Zip code: 90024 Boston, Mass. New Orleans, La. JFK Federal Building 1000 Masonic Temple Bldg. Government Center 333 St. Charles St. Zip code: 02203 Zip code: 70130 Chicago, Ill. New York, N.Y. Room 486 22nd Floor U.S. Courthouse and Federal Building Federal Office Building 26 Federal Plaza 219 S.
  • Statutory Interpretation--In the Classroom and in the Courtroom

    Statutory Interpretation--In the Classroom and in the Courtroom

    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1983 Statutory Interpretation--in the Classroom and in the Courtroom Richard A. Posner Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Posner, "Statutory Interpretation--in the Classroom and in the Courtroom," 50 University of Chicago Law Review 800 (1983). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Statutory Interpretation-in the Classroom and in the Courtroom Richard A. Posnerf This paper continues a discussion begun in an earlier paper in this journal.1 That paper dealt primarily with the implications for statutory interpretation of the interest-group theory of legislation, recently revivified by economists; it also dealt with constitutional interpretation. This paper focuses on two topics omitted in the earlier one: the need for better instruction in legislation in the law schools and the vacuity of the standard guideposts to reading stat- utes-the "canons of construction." The topics turn out to be re- lated. The last part of the paper contains a positive proposal on how to interpret statutes. I. THE ACADEMIC STUDY OF LEGISLATION It has been almost fifty years since James Landis complained that academic lawyers did not study legislation in a scientific (i.e., rigorous, systematic) spirit,' and the situation is unchanged. There are countless studies, many of high distinction, of particular stat- utes, but they are not guided by any overall theory of legislation, and most academic lawyers, like most judges and practicing law- yers, would consider it otiose, impractical, and pretentious to try to develop one.
  • Judge Posner Through Dissenting Eyes

    Judge Posner Through Dissenting Eyes

    Journal of Contemporary Health Law & Policy (1985-2015) Volume 17 Issue 1 Article 6 2000 Judge Posner through Dissenting Eyes Richard D. Cudahy Follow this and additional works at: https://scholarship.law.edu/jchlp Recommended Citation Richard D. Cudahy, Judge Posner through Dissenting Eyes, 17 J. Contemp. Health L. & Pol'y xxxi (2001). Available at: https://scholarship.law.edu/jchlp/vol17/iss1/6 This Dedication is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Journal of Contemporary Health Law & Policy (1985-2015) by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. JUDGE POSNER THROUGH DISSENTING EYES The Honorable Richard D. Cudahy* What follows may be an unusual attempt at a dedicatory essay. But these are memories that come quickly to mind in connection with a colleague whom I esteem and respect in every way and to whom this issue of THE JOURNAL OF CONTEMPORARY HEALTH LAW AND POLICY is dedicated. On December 4, 1981, Richard Posner was named to the Seventh Circuit - one of the first of seven appointments by President Ronald Reagan to our court. As the first, last, and only appointee of President Carter to the same court, I awaited this event with bated breath - and some trepidation. At that point in history, there had been enough oratory about out-of-control federal judges taking the affairs of the country into their own hands to make one wonder what was in store with the new administration. And the arrival of Dick Posner did not disappoint.
  • Conflict Among the Brethren: Felix Frankfurter, William O. Douglas And

    Conflict Among the Brethren: Felix Frankfurter, William O. Douglas And

    CONFLICT AMONG THE BRETHREN: FELIX FRANKFURTER, WILLIAM 0. DOUGLAS AND THE CLASH OF PERSONALITIES AND PHILOSOPHIES ON THE UNITED STATES SUPREME COURT MELVIN I. UROFSKY* Following the constitutional crisis of 1937, the personnel of the United States Supreme Court changed rapidly as Franklin Roosevelt named new Justices whom he believed committed to the modem views of the New Deal. Roosevelt appointees constituted a majority of the Court by 1942, but instead of harmony, the Court entered one of the most divi- sive periods in its history. The economic issues which had dominated the Court's calendar for nearly a half-century gave way to new questions of civil liberties and the reach of the Bill of Rights, and these cast the juris- prudential debate between judicial restraint and judicial activism in a new light. The struggle within the Court in the early 1940s can be ex- amined not only in terms of competing judicial philosophies, but by look- ing at personalities as well. Felix Frankfurter and William 0. Douglas, both former academics, both intimates of Franklin Roosevelt and par- tisans of the New Deal, both strong-willed egotists, and both once friends, personified in their deteriorating relationship the philosophical debate on the Court and how personality conflicts poisoned the once placid waters of the temple pool. I. THE PRE-COURT YEARS On January 4, 1939, shortly after Franklin D. Roosevelt had sent to the Senate the nomination of Felix Frankfurter as Associate Justice of the United States Supreme Court, a group of top New Dealers gathered to celebrate in the office of Secretary of the Interior Harold L.
  • Civil Rights and the Role of the Solicitor General

    Civil Rights and the Role of the Solicitor General

    Twins at Birth: Civil Rights and the Role of the Solicitor General SETH P. WAXMAN* It is painful even today to contemplate the awful devastation wreaked upon this nation by the War Between the States. But like most cataclysms, the Civil War also gave birth to some important positive developments. I would like to talk with you today abouttwo such offspring ofthat war, and the extentto which, like many sibling pairs, they have influenced each other's development. The first child-the most well-known progeny of the Civil War-was this country's commitment to civil rights. The war, of course, ended slavery. But it did not-and could not--change the way Americans thought about and treated each other. Civil rights and their polestar, the principle of equal protection of the laws, encompass far more than the absence of state-sanctioned servitude. The Congresses and Presidents that served in the wake of the Civil War aimed at this more fundamental and difficult goal. They brought about ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. And they enacted a variety of laws designed to enforce the guarantees of those Amendments. But as history shows so agonizingly, it takes much more than well-meaning laws--or even constitutional amendments-to reweave the social fabric of a nation. In the first place, a law that is merely on the books is quite different from one that is actually enforced. And what is more, a law that is enacted will not necessarily even remain on the books. Under the principle ofjudicial review established in Marbury v.
  • Consumer Rights and the Regulatory Crisis

    Consumer Rights and the Regulatory Crisis

    Catholic University Law Review Volume 20 Issue 3 Spring 1971 Article 5 1971 Consumer Rights and the Regulatory Crisis Nicholas Johnson Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Nicholas Johnson, Consumer Rights and the Regulatory Crisis, 20 Cath. U. L. Rev. 424 (1971). Available at: https://scholarship.law.edu/lawreview/vol20/iss3/5 This Comments is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Consumer Rights and the Regulatory Crisis* Nicholas Johnson** I am writing to ask you to join in Common Cause. We are going to build a true "citizens' lobby"---concerned not with the ad- vancement of special interests but with the well-being of the nation.' Introduction: The Great Disintegration As our big, bustling nation races through the dawn of the new decade into the Spring of 1971, the American people seem peculiarly melancholy. Our government is failing us. The message comes from many tongues in many parts of the land. Na- tional news magazines do cover stories on "What Ails the American Spirit." The politicians talk of a pronounced psychic downturn, a recession of the spirit. Historian Richard Hofstadter calls the 1960's "The Age of Rubbish." Historian Andrew Hacker speaks of our time as "the end of the American era." The government is not working. Mason Williams knows it. He says: "Government makes better deals with business than it does with people." John W.
  • The Double Life of Richard Posner, America's Most Contentious Legal

    The Double Life of Richard Posner, America's Most Contentious Legal

    Rhetoric udge Richard A. Posner, Law The other two died long be- LL.B. ’62, is a fierce icono- fore him: Holmes served on clast who adorns his cham- the U.S. Supreme Court from bers with icons. In one 1903 to 1932; Cardozo made corner are photographs his reputation on New York of Justice Oliver Wendell The double life of Richard Posner, State’s highest court for 18 Holmes and Judge Henry years and then sat on the U.S. Friendly. In the opposite America’s most contentious legal reformer Supreme Court for six until corner is one of Justice Ben- he died in 1938. But for Pos- Jjamin Cardozo. In Posner’s ner, they remain alive through words, Holmes is “the most their judicial opinions as illustrious figure in the histo- by Lincoln Caplan shapers of legal pragmatism, ry of American law.” Friendly which he considers the only was “the most powerful legal reasoner in American legal history.” viable approach to judging in the United States today. Cardozo “has no peers” among twentieth-century state court In The Metaphysical Club, Louis Menand, Bass professor of English, judges and was “a great judge.” called the “attitude” of pragmatism “an idea about ideas.” “They It’s been a generation since Friendly died: he sat on the U.S. Court are “not ‘out there’ waiting to be discovered,” Menand wrote, “but of Appeals for the Second Circuit, in Manhattan, from 1959 to 1986. are tools—like forks and knives and microchips—that people de- Photograph by John Gress/Corbis Images Harvard Magazine 49 Reprinted from Harvard Magazine.
  • Page 1 a N T I T R U S T M O D E R N I Z a T I O N C

    Page 1 a N T I T R U S T M O D E R N I Z a T I O N C

    Sherman Act, Section 1 (15 U.S.C. § 1) Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a cor- poration, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court. Sherman Act, Section 2 (15 U.S.C. § 2) Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceed- ing three years, or by both said punishments, in the discretion of the court. Clayton Act, Section 7 (15 U.S.C. § 18) No person engaged in commerce or in any activ- ity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.
  • Richard Posner Interview

    Richard Posner Interview

    Securities and Exchange Commission Historical Society Oral History Project Interview with Richard Posner Conducted on January 25, 2011, by Kenneth Durr KD: Interview with Judge Richard Posner, January 25th, 2011, in Chicago, Illinois, by Kenneth Durr. Let’s go back to the early years a bit. I want to talk about the state of corporate law when you were at Harvard. Did you think that you would go into areas of corporate law, antitrust, when you were at Harvard? RP: No. I took corporation law, of course. It was from Derek Bok, who later became dean of the law school and president of Harvard. It was a good course; he’s a good teacher. I don’t remember anything about the course. I took Louie Loss’s securities regulation course, which I also don’t remember. KD: He later became legendary in the field of securities laws, writing the book on it. RP: I think he was already; this would’ve been about 1960. I think he’d written his treatise. I took an antitrust course from Philip Areeda. I didn’t particularly like it at that time. Obviously, I later became interested in antitrust; but, no, I wouldn’t say the corporate area particularly excited me in law school. KD: What did excite you in law school? Interview with Richard Posner, January 25, 2011 2 RP: I actually liked the common law courses, the first-year courses in law school, best. KD: How did you land the job clerking for Justice Brennan? RP: He had delegated the appointment of his law clerk to Professor Paul Freund.
  • Norman I. Silber

    Norman I. Silber

    Norman I. Silber Scholarly Interests: Nonprofit Organizations Consumer Law Oral History Legal History Commercial Law Education, Professional Training and Legal Practice: Professor of Law, Hofstra Law School, 1989²present Associate Dean for Intellectual Life 2008²present Chair, Lateral Appointments 2009²present Past Chair, Reappointment, Promotion and Tenure Past Chair, Entry Level Appointments Past Chair, Library Director Search Past member, Dean Search Past Academic Vice Dean Director, Consumers Union (publisher of Consumer Reports magazine and ConsumerReports.org) Elected board member 1996²present Secretary of the Board 2007²present Executive Committee Governance Committee Nominating Committee Orientation Committee Liason, Consumers Union Action Fund Past Audit Past Budget Past Strategic Planning Member, American Law Institute Principles of Nonprofit Governance (consultative group) Software Licensing Aggregate Litigation Fellow, American Bar Foundation Staff Interviewer, Columbia University Oral History Research Office 1979²present President-elect, AALS Section on Nonprofit Law and Philanthropy Founding Member Executive Committee Website Editor: www. nonprof.org Past Chair, Consumer Affairs Committee, New York City Bar Association Past Board Member, The American Council on Consumer Interests. Visiting Research Professor, Boalt Hall, U.C. Berkeley, Fall 1997. Chair, Subcommittee on Developments in Nonprofit Corporation Law, Business Law Section, American Bar Association, 1995 ± 1999. Patterson, Belknap, Webb & Tyler, New York City, 1987 ± 1989: Tax-exempt corporations, commercial litigation. Law clerk to Judge Leonard I. Garth, United States Court of Appeals for the Third Circuit, 1986 ± 1987. Columbia Law School, J.D., 1986. Senior Revising Editor, Columbia Law Review. Harlan Fiske Stone Scholar, 1985 ± 1986. Yale Graduate School of History, Ph.D., 1978. Yale Mellon graduate scholarship; research awards.
  • Supreme Court Law Clerks' Recollections of Brown V. Board of Education

    Supreme Court Law Clerks' Recollections of Brown V. Board of Education

    Supreme Court Law Clerks' Recollections of Brown v. Board of Education The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation John David Fassett, Earl E. Pollock, E. Barrett Prettyman Jr., Frank E.A. Sander & John Q. Barrett, Supreme Court Law Clerks' Recollections of Brown v. Board of Education, 78 St. John's L. Rev. 515 (2004). Published Version http://scholarship.law.stjohns.edu/lawreview/vol78/iss3/8/ Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:16201735 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA St. John's Law Review Volume 78 Article 8 Issue 3 Volume 78, Summer 2004, Number 3 February 2012 Supreme Court Law Clerks' Recollections of Brown v. Board of Education John David Fassett Earl E. Pollock E. Barrett rP ettyman Jr. Frank E.A. Sander John Q. Barrett Follow this and additional works at: http://scholarship.law.stjohns.edu/lawreview Recommended Citation Fassett, John David; Pollock, Earl E.; Prettyman, E. Barrett rJ .; Sander, Frank E.A.; and Barrett, John Q. (2012) "Supreme Court Law Clerks' Recollections of Brown v. Board of Education," St. John's Law Review: Vol. 78: Iss. 3, Article 8. Available at: http://scholarship.law.stjohns.edu/lawreview/vol78/iss3/8 This Article is brought to you for free and open access by the Journals at St.
  • American Jurisprudence After the War: Reason Called Law

    American Jurisprudence After the War: Reason Called Law

    Tulsa Law Review Volume 37 Issue 4 The Scholarship of Morton J. Horwitz Summer 2002 American Jurisprudence after the War: Reason Called Law William M. Wiecek Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation William M. Wiecek, American Jurisprudence after the War: Reason Called Law, 37 Tulsa L. Rev. 857 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol37/iss4/2 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Wiecek: American Jurisprudence after the War: Reason Called Law AMERICAN JURISPRUDENCE AFTER THE WAR: "REASON CALLED LAW"* William M. Wiecek** Morton Horwitz has had an immeasurable influence on the writing and teaching of American Legal History. Laura Kalman has traced the outlines of that influence in the quarter-century since the publication of The Transformation of American Law, 1780-1860 ("Transformation P').1 I would like to illustrate her idea that the book and its successor, The Transformation of American Law, 1870- 1960 ("Transformation I/"), "fired imaginations., 2 I do so by offering here a fragment of my own work-in-progress to demonstrate how that influence has worked for one legal historian. In the autumn of 1994, I was offered the splendid opportunity of writing the Holmes Devise History of the Supreme Court of the United States volume covering the period 1941-1953, the Chief Justiceships of Harlan Fiske Stone and Fred M.