Person:

Mack, Kenneth

Book Review Essay focusing on Tomiko Brown Nagin's Courage to Dissent: Atlanta and The Long History of the Civil Rights Movement (Oxford University Press, 2012), which assesses recent political science-oriented scholarship that argues that Brown v. Board of Education had little effect on the civil rights movement and was counterproductive in the short term. The review argues that this scholarship is ahistorical and that Courage to Dissent serves as a useful corrective.

What was the role of law and lawyers in the civil rights movement? Recent work has emphasized a tension between the legal strategies of the National Association for the Advancement of Colored People (NAACP) and a commitment to mass movement politics and economic populism. This article takes up that question by examining the everyday lives and litigation performances of depression-era black lawyers affiliated with the NAACP, arguing that the scholarly debate should be reframed through attention to the role of courtroom performances as crucial sites where race and professional identity was made and remade for civil rights lawyers such as Charles Houston, Raymond Pace Alexander, William Hastie, and Thurgood Marshall. Responding to the critics on their left, the lawyers fashioned a new professional identity that melded the NAACP's traditional approaches and concerns with a commitment to mass democratic politics.

This Article argues that scholarly accounts of civil rights lawyering and politics have emphasized, incorrectly, a narrative that begins with Plessy v. Ferguson and ends with Brown v. Board of Education. That traditional narrative has relied on a legal liberal view of civil rights politics—a view that focuses on court-based and rights-centered public law litigation. That narrative has, in turn, generated a revisionist literature that has critiqued legal liberal politics. This Article contends that both the traditional and revisionist works have focused on strains of civil rights politics that appear to anticipate Brown, and thus have suppressed alternative visions of that politics. This Article attempts to recover these alternatives by analyzing the history of civil rights lawyering between the First and Second World Wars. It recovers debates concerning intraracial African-American identity and anti-segregation work, lawyers’ work and social change, rights-based advocacy and legal realism, and the legal construction of racial and economic inequality that have been elided in the existing literature. It thus contends that the scholarly inquiries that have been generated in both the traditional and the revisionist work should be reframed.

Abstract: This preface to a special issue on Race and the Law of La Revue des Droits de l'Homme, presents a genealogy of Critical Race Theory, framed in light of the tendency in France to avoid fulsome scholarly discussions of racial identity, racial inequality and racial attitudes. The preface also frames its genealogy in light of political attacks on CRT that have been launched both in the United States and elsewhere in the world. Its genealogy frames the origins of CRT in the context of increased scholarly interest in race as a social construction during the 1980s and 1990s, and in the additional context of 1970s, 80s, and 90s scholarship that questioned universalizing and colorblind legal regimes of nations that purported to guarantee equality without regard to race. It also locates CRT within the larger universe of Critical Theory, including Critical Legal Studies, and examines concepts such as social construction, intersectionality, whiteness, structural racism and identity performance.

This article reexamines the well-known debate over the origins of de jure segregation in the American South, which began in 1955 with the publication of C. Vann Woodward's The Strange Career of Jim Crow. Arguing that the debate over Woodward's thesis implicates familiar but outmoded ways of looking at socio-legal change and Southern society, the article proposes a reorientation of this debate using theoretical perspectives taken from recent work by legal historians, critical race theorists, and historians of race, class, and gender. This article examines the advent of railroad segregation in Tennessee (the state that enacted the nation's first railroad segregation statute) in order to sketch out these themes, arguing that de jure segregation was brought about by a dialectic between legal, social, and identity-based phenomena. This dialectic did not die out with the coming of de jure segregation; rather it continued into the modem era.

This article uses the well-known case of Robert Bell, who was convicted of trespass in one of the important sit-in cases of the 1960s and ended his career as Chief Justice of the Maryland Court of Appeals, to offer some thoughts about the state action doctrine, conflicts between law and morality, and outsider claims on the legal system. It critiques three conventional readings of Bell’s case, and his seemingly unlikely subsequent career. Employing a historical analysis of the state action doctrine, which was the central issue when Bell’s case reached the Supreme Court, it argues that the case that supposedly originated the doctrine – the Civil Rights Cases decision of 1883 – did no such thing. In addition, this article questions the view of cases like Bell’s as presenting a sharp conflict between law and morality, arguing that it is not even clear that Bell was violating Maryland’s trespass law. Finally, the article questions a now-common way of making sense of the arc of Bell’s career – one which would see his rise to the Chief Justiceship as an example of “agency,” in which outsider views of law become, over time, accepted by the legal system. Bell’s case, it will be argued here, has a far more complicated set of lessons to teach, if we discard some conventional ways of reading it.

This paper argues that, as the civil rights movement emerged and began to make its claims for inclusion of African Americans in institutions of higher education, two modes of inclusion emerged — two ideas of what it might mean to “include” previously excluded groups within educational institutions. The first mode of inclusion meant simple participation in, rather than alteration of, main- stream institutions of life. While first-mode inclusion might require the removal of certain formal barriers to participation and good treatment of the included persons, it did not appear to threaten the larger community’s basic social organization. However, in the background there remained a second, far more disruptive idea: that inclusion required the transformation of some of the fundamental rules that governed educational institutions themselves and of the larger society that surrounded them. Civil rights claims often styled themselves in the language of the first mode, but when they were done being articulated and defined by those who pushed for inclusion, they often, subtly but inexorably, slid into the second. This paper argues that the same tension between first- and second-mode inclusion claims has emerged repeatedly since that time as various groups have invoked the legacy of the civil rights movement, including in the activities of those who have recently styled themselves advocates of racial inclusion, and of intellectual diversity, in higher education.