Martha Minow

Carter Professor of General Jurisprudence

Harvard University Distinguished Service Professor

Biography

Martha Minow has taught at Harvard Law School since 1981, where her courses include civil procedure, constitutional law, family law, international criminal justice, jurisprudence, law and education, nonprofit organizations, and the public law workshop. An expert in human rights and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities, she also writes and teaches about privatization, military justice, and ethnic and religious conflict.

Besides her many scholarly articles published in journals of law, history, and philosophy, her books include The First Global Prosecutor: Promise and Constraints (co-edited, 2015); In Brown’s Wake: Legacies of America’s Constitutional Landmark (2010); Government by Contract (co-edited, 2009); Just Schools: Pursuing Equality in Societies of Difference (co-edited, 2008); Breaking the Cycles of Hatred: Memory, Law and Repair (edited by Nancy Rosenblum with commentary by other authors, 2003); Partners, Not Rivals: Privatization and the Public Good (2002); Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies (co-edited 2002); Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (1998); Not Only for Myself: Identity, Politics and Law (1997); Law Stories (co-edited 1996); Narrative, Violence and the Law: The Essays of Robert M. Cover (co-edited 1992); and Making All the Difference: Inclusion, Exclusion, and American Law (1990). She is the co-editor of two law school casebooks, Civil Procedure: Doctrine, Practice and Context (3rd. edition 2008) and Women and the Law (4th edition 2007), and a reader, Family Matters: Readings in Family Lives and the Law (1993).

She is the Vice-Chair of the Legal Services Corporation, the bi-partisan, government-sponsored organization that provides civil legal assistance to low-income Americans.  Minow has served on the Center for Strategic and International Studies Commission on Countering Violent Extremism and on the Independent International Commission Kosovo.  She helped to launch Imagine Co-existence, a program of the U.N. High Commissioner for Refugees, to promote peaceful development in post-conflict societies. Her five-year partnership with the federal Department of Education and the Center for Applied Special Technology worked to increase access to the curriculum for students with disabilities and resulted in both legislative initiatives and a voluntary national standard opening access to curricular materials for individuals with disabilities.   Her honors include: the Sargent Shriver Equal Justice Award (2016), Joseph B. and Toby Gittler Prize, Brandeis University (2016); nine honorary degrees (in law, education, and humane letters) from schools in three countries; the Gold Medal for Outstanding Contribution to Public Discourse, awarded by the College Historical Society of Trinity College, Dublin, in recognition of efforts to promote discourse and intellectualism on a world stage; the Holocaust Center Award; and the Sacks-Freund Teaching Award, awarded by the Harvard Law School graduating class.

She currently is a member of the boards of the Advantage Testing Foundation, CBS, the MacArthur Foundation, the Russell Sage Foundation, and the SCE Foundation.  She served as the inaugural chair of the Deans Steering Committee of the Association of American Law Schools and as a member of the American Bar Association Diversity and Inclusion 360 Commission.  She previously chaired the board of directors for the Revson Foundation (New York) and served in the boards of the Covenant Foundation, the American Bar Foundation,  the Bazelon Center for Mental Health Law, the Iranian Human Rights Documentation Center, and Facing History and Ourselves, where she chaired the Scholar’s Board. A fellow of the American Academy of Arts & Sciences since 1992, Minow has also been a senior fellow of Harvard’s Society of Fellows, a member of Harvard University Press Board of Syndics, a senior fellow and acting director of what is now Harvard’s Safra Foundation Center on Ethics, a fellow of the American Bar Foundation and a Fellow of the American Philosophical Society. She has delivered more than 70 named or endowed lectures and keynote addresses, including most recently the 2016 George W. Gay Lecture at Harvard Medical School’s Center for Bioethics.

Minow served as Dean of Harvard Law School between 2009-2017, as the inaugural Morgan and Helen Chu Dean and Professor. Minow co-chaired the Law School’s curricular reform committee from 2003 to 2006, an effort that led to significant innovation in the first-year curriculum as well as new programs of study for second- and third-year J.D. students.

After completing her undergraduate studies at the University of Michigan, Minow received a master’s degree in education from Harvard and her law degree from Yale. She clerked for Judge David Bazelon of the United States Court of Appeals for the D.C. Circuit and then for Justice Thurgood Marshall of the Supreme Court of the United States. She joined the Harvard Law faculty as an assistant professor in 1981, was promoted to professor in 1986, was named the William Henry Bloomberg Professor of Law in 2003, became the Jeremiah Smith Jr., Professor of Law in 2005, and after her service as dean, became the Carter Professor Of General Jurisprudence in 2017.  She is also a lecturer in the Harvard Graduate School of Education and Distinguished Service Professor at Harvard University.  Her husband, Joseph W. Singer, is the Bussey Professor of Law at Harvard Law School and their daughter, Mira Singer, is a writer and artist.  Minow enjoys watching and discussing movies and keeping in touch with current and former students.

Areas of Interest

The First Global Prosecutor: Promise and Constraints (Martha Minow, C. Cora True-Frost & Alex Whiting eds., Univ. Mich. Press 2015).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
International Law
Type: Book
Abstract
The establishment of the International Criminal Court (ICC) gave rise to the first permanent Office of the Prosecutor (OTP), with independent powers of investigation and prosecution. Elected in 2003 for a nine-year term as the ICC’s first Prosecutor, Luis Moreno Ocampo established policies and practices for when and how to investigate, when to pursue prosecution, and how to obtain the cooperation of sovereign nations. He laid a foundation for the OTP’s involvement with the United Nations Security Council, state parties, nongovernmental organizations, victims, the accused, witnesses, and the media. This volume of essays presents the first sustained examination of this unique office and offers a rare look into international justice. The contributors, ranging from legal scholars to practitioners of international law, explore the spectrum of options available to the OTP, the particular choices Moreno Ocampo made, and issues ripe for consideration as his successor, Fatou B. Bensouda, assumes her duties. The beginning of Bensouda’s term thus offers the perfect opportunity to examine the first Prosecutor’s singular efforts to strengthen international justice, in all its facets.
Martha L. Minow, In Brown's Wake: Legacies of America's Educational Landmark (Oxford Univ. Press 2010).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Education Law
Type: Book
Abstract
What is the legacy of Brown vs. Board of Education? While it is well known for establishing racial equality as a central commitment of American schools, the case also inspired social movements for equality in education across all lines of difference, including language, gender, disability, immigration status, socio-economic status, religion, and sexual orientation. Yet more than a half century after Brown, American schools are more racially separated than before, and educators, parents and policy makers still debate whether the ruling requires all-inclusive classrooms in terms of race, gender, disability, and other differences. In Brown's Wake examines the reverberations of Brown in American schools, including efforts to promote equal opportunities for all kinds of students. School choice, once a strategy for avoiding Brown, has emerged as a tool to promote integration and opportunities, even as charter schools and private school voucher programs enable new forms of self-separation by language, gender, disability, and ethnicity. Martha Minow, Dean of Harvard Law School, argues that the criteria placed on such initiatives carry serious consequences for both the character of American education and civil society itself. Although the original promise of Brown remains more symbolic than effective, Minow demonstrates the power of its vision in the struggles for equal education regardless of students' social identity, not only in the United States but also in many countries around the world. Further, she urges renewed commitment to the project of social integration even while acknowledging the complex obstacles that must be overcome. An elegant and concise overview of Brown and its aftermath, In Brown's Wake explores the broad-ranging and often surprising impact of one of the century's most important Supreme Court decisions. Stephen S. Goldberg Award for Distinguished Scholarship in Education Law 2011, Education Law Association; Scribes Book Award 2011—Honorable Mention; and The Green Bag Almanac & Reader Exemplary Legal Writing Honoree, 2010.
Government by Contract: Outsourcing and American Democracy (Jody Freeman & Martha L. Minow eds., Harvard Univ. Press 2009).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Government Transparency
Type: Book
Abstract
The dramatic growth of government over the course of the twentieth century since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government’s costs, efficiency, and quality of service. These concerns, combined with rising confidence in private markets, motivate the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. “Government by contract” now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects. Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values? Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns.
Just Schools: Pursuing Equality in Societies of Difference (Martha L. Minow, Richard A. Shweder & Hazel R. Markus eds., Russell Sage Found. 2008).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Religious Rights
,
Race & Ethnicity
,
Education Law
Type: Book
Abstract
Educators and policymakers who share the goal of equal opportunity in schools often hold differing notions of what entails a just school in multicultural America. Some emphasize the importance of integration and uniform treatment for all, while others point to the benefits of honoring cultural diversity in ways that make minority students feel at home. In Just Schools, noted legal scholars, educators, and social scientists examine schools with widely divergent methods of fostering equality in order to explore the possibilities and limits of equal education today. The contributors to Just Schools combine empirical research with rich ethnographic accounts to paint a vivid picture of the quest for justice in classrooms around the nation. Legal scholar Martha Minow considers the impact of school choice reforms on equal educational opportunities. Psychologist Hazel Rose Markus examines culturally sensitive programs where students exhibit superior performance on standardized tests and feel safer and more interested in school than those in color-blind programs. Anthropologist Heather Lindkvist reports on how Somali Muslims in Lewiston, Maine, invoked the American ideal of inclusiveness in winning dress-code exemptions and accommodations for Islamic rituals in the local public school. Political scientist Austin Sarat looks at a school system in which everyone endorses multiculturalism but holds conflicting views on the extent to which culturally sensitive practices should enter into the academic curriculum. Anthropologist Barnaby Riedel investigates how a private Muslim school in Chicago aspires to universalist ideals, and education scholar James Banks argues that schools have a responsibility to prepare students for citizenship in a multicultural society. Anthropologist John Bowen offers a nuanced interpretation of educational commitments in France and the headscarf controversy in French schools. Anthropologist Richard Shweder concludes the volume by connecting debates about diversity in schools with a broader conflict between national assimilation and cultural autonomy. As America’s schools strive to accommodate new students from around the world, Just Schools provides a provocative and insightful look at the different ways we define and promote justice in schools and in society at large.
Martha Minow, Alternatives to the State Action Doctrine in the Era of Privatization, Mandatory Arbitration, and the Internet: Directing Law to Serve Human Needs, 52 Harv. C.R.-C.L. L. Rev. 145 (2017).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Technology & Law
Sub-Categories:
Civil Rights
,
State & Local Government
,
Government Accountability
,
International Arbitration
,
Networked Society
Type: Article
Abstract
The article focuses on the alternatives to the state action doctrine in the era of privatization, mandatory arbitration, and the internet for serving human needs. Topics discussed include increased use of the internet and digital communications; increased privatization of traditionally public services; and importance of the line between governmental and nongovernmental activities.
Martha Minow, Upstanders, Whistle-Blowers, and Rescuers, 2017 Utah L. Rev. 815.
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Social Change
,
Human Rights Law
Type: Article
Abstract
Communities of responsibility and the cultures that nurture them take many steps to build. An important step is to honor remarkable individuals with courage and commitment. Raphael Lemkin, Benjamin Ferencz, Luis Moreno Ocampo, Emmanuel Uwurukundo, Samantha Power, filmmaker Edet Belzberg, and Victor Koningsberger deserve recognition and honor. At the same time, we need to emphasize that an upstander does not need extraordinary qualities. Ordinary people can and do stand up in small and big ways against oppression and injustice. Education can help. Speeches can help. When we honor heroes, we should not simply recognize individual courage. Doing so can help to constitute a community around the value of standing up. Joining with others to make it more possible for each next act of upstanding can help even more. Pushing to construct peer cultures of upstanding, reducing fears of speaking out against bullying and discrimination, preparing people to recognize and combat denial, rationalization, and feeling overwhelmed, and building social networks of mutual aid and support, will help us all be upstanders and help us rescue the humanity of others and of ourselves.
Cass R. Sunstein, Chief Justice John G. Roberts Jr., John F. Manning, Justice Elena Kagan, Justice Ruth Bader Ginsburg, Martha Minow & Rachel E. Barkow, In Memoriam: Justice Antonin Scalia, 130 Harv. L. Rev. 1 (2016).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Martha L. Minow, Primary Colors, New Rambler Rev. (June 6, 2016) (reviewing Geoffrey Cowan, Let the People Rule: Theodore Roosevelt and the Birth of the Presidential Primary (2016)).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Elections & Voting
,
Legal History
Type: Article
Martha L. Minow, Connecting To What Matters: Remembering Bo Burt, 125 Yale L.J. 817 (2016).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Stephen N. Subrin, Martha L. Minow, Mark S. Brodin, Thomas O. Main & Alexandra D. Lahav, Civil Procedure: Doctrine, Practice, and Context (Wolters Kluwer Law & Bus. 5th ed. 2016).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Practice & Procedure
,
Legal Education
Type: Book
Abstract
Written by respected scholars and experienced educators, this book showcases rules and doctrine of civil procedure at work in actual practice of law. The procedural and nonprocedural aspects of the cases are thought-provoking, to hold students’ interest. Each chapter contains a well-written introduction, cases, and clear explanations of the doctrine, supported by comments and questions which deepen students’ understanding and clarify key concepts. This book also includes more than forty well-crafted problems the can be used in or out of class to to help students solidify their understanding of the materials. In-class exercises and simulations based on two sample case files are integrated throughout. Pleadings, memoranda, transcripts, exhibits, motions, and more (all taken from real cases) appear in the Appendix. Features: –All cases and notes have been updated so that the book is current through the early part of 2016. –Authors have added several practice exercises to the text that give students more experiential learning opportunities. –Two sample case files with transcripts, memoranda, exhibits, motions integrated throughout book. –Emphasis on lawyering skills and values and social responsibility Distinguished authorship by experienced educator-scholars. –Revised Teacher’s Manual, along with a new online community for adopters to allow for the sharing of teaching notes and other content among adopters.
Martha L. Minow, Continually Re-Thinking: What Would Mary Joe Frug Do? (A Preface to Symposium Discussions), 50 New Eng. L. Rev. 269 (2016).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Federal Rules of Civil Procedure with Resources for Study, 2016-2017 (Stephen N. Subrin, Martha L. Minow, Mark S. Brodin, Thomas O. Main & Alexandra D. Lahav eds., Wolters Kluwer supplement ed. 2016).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Practice & Procedure
,
Legal Education
Type: Book
Abstract
An ideal accompaniment to any civil procedure casebook, including the authors’ own Civil Procedure: Doctrine, Practice, and Context, Fifth Edition, the 2016-2017 statutory supplement presents the current Federal Rules of Civil Procedure (FRCP). Useful cross-references to Advisory Committee Notes, Restatement sections, and Transnational Rules have been integrated into the FRCP to help students explore the larger context of each Rule. Complete features include: The current Federal Rules of Civil Procedure and proposed amendments; The U.S. Constitution and U.S. Code provisions current through May 1, 2016; Excerpts from the Restatement (Second) of Judgments; Excerpts from the American Law Institute/UNIDROIT Rules of Transnational Civil Procedure; and Examples of state long-arm and venue statutes.
Martha Minow, Foreword to Nancy Levit & Robert R.M. Verchick, Feminist Legal Theory: A Primer ix (N.Y. Univ. Press 2d ed. 2016).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Feminist Legal Theory
,
Legal & Political Theory
Type: Book
Martha L. Minow, Foreword to Beyond Elite Law: Access to Civil Justice in America at xv (Samuel Estreicher & Joy Radice eds., Cambridge Univ. Press 2016).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Legal Reform
Type: Book
Abstract
Are Americans making under $50,000 a year compelled to navigate the legal system on their own, or do they simply give up because they cannot afford lawyers? We know anecdotally that Americans of median or lower income generally do without legal representation or resort to a sector of the legal profession that - because of the sheer volume of claims, inadequate training, and other causes - provides deficient representation and advice. This book poses the question: can we - at the current level of resources, both public and private - better address the legal needs of all Americans? Leading judges, researchers, and activists discuss the role of technology, pro bono services, bar association resources, affordable solo and small firm fees, public service internships, and law student and nonlawyer representation.
Martha L. Minow, Upstanders, Whistle-Blowers, and Rescuers (Eleven Int'l Publ'g 2016).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Social Change
,
Human Rights Law
Type: Book
Abstract
From the 5th Koningsberger Lecture series, Utrecht University (2014): I will explore several ways people can be upstanders; reasons why people are not upstanders; and potential collective efforts that could make it easier or more likely that people become upstanders. I begin though with a story of stories — five stories actually — to make upstanding vivid, to honor courageous individuals and identify challenges for the rest of us, and to raise a question: does honoring upstanders and telling their stories increase the chances that others will follow in their paths, or suggest that only exceptional individuals with unusual qualities are upstanders? What would it take for the rest of us to stand up?
David F. Levi, David J. Barron, Donald B. Verrilli, Elena Kagan, Martha Minow, Richard H. Fallon, Robert S. Taylor & Vicki C. Jackson, In Memoriam: Daniel J. Meltzer, 129 Harv. L. Rev. 397 (2015).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Biography & Tribute
Type: Article
Martha L. Minow & Newton Minow, Newton Minow (Vinson, October Term 1951) and Martha Minow (Marshall, October Term 1980), part of Todd C. Peppers & Contributors, A Family Tradition: Clerking at the U.S. Supreme Court, in Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices 347 (Todd C. Peppers & Clare Cushman eds., Univ. Va. Press 2015).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Courts
Type: Book
Abstract
Supreme Court justices have long relied on law clerks to help process the work of the Court. Yet few outside the Court are privy to the behind-the-scenes bonds that form between justices and their clerks. In Of Courtiers and Kings, Todd C. Peppers and Clare Cushman offer an intimate new look at the personal and professional relationships of law clerks with their justices. Going beyond the book’s widely acclaimed predecessor, I n Chambers, the vignettes collected here range from reflections on how serving as clerks at the Supreme Court impacted the careers of such justices as Stephen Breyer, Elena Kagan, William Rehnquist, John G. Roberts Jr., and John Paul Stevens to personal recollections written by parents and children who have both served as Supreme Court clerks. While individual essays often focus on a single justice and his or her corps of clerks—including how that justice selected and utilized the clerks—taken as a whole the volume provides a macro-level view of the evolution of the role of the Supreme Court law clerk. Drawing on a rich repository of such anecdotes, insights, and experience, the volume relates in a clear and accessible style how the clerking function has changed over time and what it is like for law clerks to be witnesses to history. Offering a rare glimpse into a normally unseen world, Of Courtiers and Kings reveals the Court’s increasing reliance on law clerks and raises important questions about the selection, utilization, and influence of law clerks.
Martha L. Minow, Forgiveness, Law, and Justice, 103 Calif. L. Rev. 1615 (2015).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
,
Legal Profession
,
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Legal Theory & Philosophy
,
Human Rights Law
,
Legal Ethics
Type: Article
Abstract
Should law encourage people to forgive one another—and should law be used to forgive people for wrongdoing? Or is it a mistake to promote greater connections between law, with its need for predictability, and forgiveness, with its dependence on emotions and moral judgments? Before exploring these questions, I will discuss what I mean by forgiveness in Part I. Then, in Part II, I will turn to the possible roles law can play in relation to forgiveness in the contexts of criminal law—international and domestic—and debt, both of sovereign nations and consumers. When I first turned to some of these issues, South Africa’s Truth and Reconciliation Commission (TRC) was just getting started. In the twenty years since, and in no small measure because of the TRC effort, forgiveness has attracted global attention and debate in law, psychology, and politics well beyond its traditional home in religious and philosophical discussions. So I will also consider in Part II what we have learned from the TRC about the promises and limitations of joining forgiveness and law—both for law and for forgiveness. In Part III, I will raise some questions about the inquiry myself. Finally, in Part IV, I will provide closing thoughts and suggestions for incorporating forgiveness into existing domestic and international legal frameworks. Finding room for forgiveness through law or alongside law can draw upon a non-depletable resource, thereby enhancing human relationships without forgoing the accountability so important to social order.
Martha Minow, The Right to Know, New Rambler Rev., Oct. 30, 2015 (reviewing Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945-1975 (2015)).
Categories:
Government & Politics
Sub-Categories:
Government Transparency
Type: Article
Martha Minow, Altruistic Evil, New Rambler Rev., Oct. 26, 2015 (reviewing Jonathan Sacks, Not in God’s Name: Confronting Religious Violence (2015)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
Type: Article
Martha L. Minow, Speaker's Corner, Questions Lawyers Must Answer, The Practice (July 2015).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Martha Minow, Unlikely Alliances from Woodstock to Wounded Knee, New Rambler Rev., Mar. 30, 2015 (reviewing Sherry L. Smith, Hippies, Indians and the Fight For Red Power (2012)).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Native American & Tribal Law
,
Law & Social Change
Type: Article
Martha L. Minow, Religious Exemptions, Stating Culture: Foreword to Religious Accommodation in the Age of Civil Rights, 88 S. Cal. L. Rev. 453 (2015).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Religion
,
Civil Rights
,
Religious Rights
Type: Article
Abstract
“There is a war against religion!” “Exemptions on religious groups undermine civil rights!” “Pluralism and tolerance are in jeopardy!” “Freedom for some ends up trumping freedom and equality for others!” Whether any of these individual statements is true, the rising claims of catastrophe by opposing groups across the United States prompted an intense and engaging conference, “Religious Accommodation in the Age of Civil Rights,” held at Harvard Law School on April 3–5, 2014, sponsored by Harvard Law School, the Williams Institute at the University of California in Los Angeles, the American Civil Liberties Union, and the University of Southern California Center for Law, History and Culture. Engaging and intense discussions among forty panelists and over 120 participants generated the articles presented in this issue as well as others filling special issues of two other journals. The focus on accommodations for religion reflects both increasing challenges to traditional denials of rights and protections for lesbian, gay, bisexual, and transgender individuals and religious objections to contraception and abortion. Clashes increase with political and legal advances in legal treatment of marriage equality for same-sex couples and expanding recognition of legal claims of businesses for freedom of speech and religion. Ongoing disagreements over the scope of existing and potential federal, state, and local anti-discrimination laws, health insurance requirements, and other general rules trigger political and social debates but also produce legal questions requiring answers.
Martha MInow, Preface: The Enduring Burdens of the Universal and the Different in the Insular Cases, in Reconsidering the Insular Cases: The Past and Future of the American Empire vii (Gerald L. Neuman & Tomiko Brown-Nagin eds., 2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Human Rights Law
Type: Book
Abstract
"Over a century has passed since the United States Supreme Court decided a series of cases, known as the “Insular Cases,” that limited the applicability of constitutional rights in Puerto Rico and other overseas territories and allowed the United States to hold them indefinitely as subordinated possessions without the promise of representation or statehood. Essays in this volume, which originated in a Harvard Law School conference, reconsider the Insular Cases. Leading legal authorities examine the history and legacy of the cases, which are tinged with outdated notions of race and empire, and explore possible solutions for the dilemmas they created. Reconsidering the Insular Cases is particularly timely in light of the latest referendum in Puerto Rico expressing widespread dissatisfaction with its current form of governance, and litigation by American Samoans challenging their unequal citizenship status. This book gives voice to a neglected aspect of U.S. history and constitutional law and provides a rich context for rethinking notions of sovereignty, citizenship, race, and place, as well as the roles of law and politics in shaping them." -- Back cover.
Martha L. Minow, The Controversial Status of International and Comparative Law in the United States, in Courts and Comparative Law 513 (Mads Andenas & Duncan Fairgrieve eds., Oxford Univ. Press 2015).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
International Law
Type: Book
Abstract
Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts. A copy of Dean Minow's chapter also appears in Vol. 52 of the Harvard International Law Journal Online (August 27, 2010). http://www.harvardilj.org/wp-content/uploads/2010/09/HILJ-Online_52_Minow1.pdf
Martha L. Minow, In Memoriam: John H. Mansfield, 128 Harv. L. Rev. 529 (2014).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Martha L. Minow, Introduction: Essays in Honor of Justice Stephen G. Breyer, 128 Harv. L. Rev. 416 (2014).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Martha L. Minow, The Big Picture: Justice Breyer's Dissent in Brown v. Entertainment Merchants Association, 128 Harv. L. Rev. 416, 469 (2014).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Arts & Entertainment Law
,
Biography & Tribute
Type: Article
Martha Minow, Essay in, Brown at 60 and Milliken at 40, Harv. Ed. Mag. (June 4, 2014, 9:07 AM).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Race & Ethnicity
,
Discrimination
,
Education Law
Type: Article
Martha L. Minow, Universal Design in Education: Remaking All the Difference, in Righting Educational Wrongs: Disability Studies in Law and Education 38 (Arlene S. Kanter & Beth A. Ferri eds., Syracuse Univ. Press 2013).
Categories:
Family Law
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Discrimination
,
Education Law
Type: Book
Abstract
Righting Educational Wrongs brings together the work of scholars from the fields of disability studies in education and law to examine contemporary struggles around inclusion and access to education.
Charles Fried, Frances Kamm, Frank I. Michelman, John C.P. Goldberg, Laurence H. Tribe, Martha Minow & Richard H. Fallon, In Memoriam: Ronald Dworkin, 127 Harv. L. Rev. 489 (2013).
Categories:
Government & Politics
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Legal & Political Theory
,
Biography & Tribute
Type: Article
Martha L. Minow, Essays in Honor of Justice Ruth Bader Ginsburg: Introduction and M.L.B. v. S.L.J., 519 U.S. 102 (1996), 127 Harv. L. Rev. 423, 461 (2013).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Law & Public Policy
,
Domestic Relations
,
Children's Law & Welfare
Type: Article
Martha Minow, Archetypal Legal Scholarship: A Field Guide, 63 J. Legal Educ. 65 (2013).
Categories:
Legal Profession
Sub-Categories:
Legal Scholarship
,
Legal Education
Type: Article
Abstract
It has been my pleasure to be a sounding board and advisor to many people who consider becoming law professors and yet it has not always been easy to introduce people considering their own research projects to reflect on how their ideas connect with the varieties of legal scholarship. One day I decided to write up a “field guide,” meant to be rather like the guides to birds that offer pictures and descriptions to assist the casual or serious birdwatcher. After sharing it and revising it, I have learned that this “guide” now travels underground and electronically, so I thought it time to give it an official publication, and the Journal’s editors kindly agreed. The explosion of interdisciplinary research in law contributes to the variety of legal scholarship. So does the contrast between “inside” and “outside” thinking in law schools where we try both to equip people for practice and effectiveness within existing institutions and for roles as critics, institutional reformers, and scholars who may explain and analyze in terms quite different from those in the minds of actors operating within existing legal systems. So here with an invitation for supplements, critiques, and revisions is my Archetypal Legal Scholarship: A Field Guide.
Martha L. Minow, Interview with Marie Mercat-Bruns, in Marie Mercat-Bruns, Discriminations en Droit du Travail: Dialogue avec la Doctrine Américaine (Dalloz 2013) translated in Marie Mercat-Bruns, Discrimination at Work: Comparing European, French and American Law (Elaine Holt trans., Univ. Cal. Press 2016).
Categories:
Labor & Employment
,
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
Comparative Law
,
Employment Discrimination
Type: Book
Abstract
Do the United States and France, both post-industrial democracies, differ in their views and laws concerning discrimination? Marie Mercat-Bruns, a Franco-American scholar, examines the differences in how the two countries approach discrimination. Bringing together prominent legal scholars--including Robert Post, Linda Krieger, Martha Minow, Reva Siegel, Susan Sturm, Richard Ford, and others--Mercat-Bruns demonstrates how the two nations have adopted divergent strategies. The United States continues, with mixed success at "colorblind" policies, to deal with issues of diversity in university enrollment, class action sex-discrimination lawsuits, and rampant police violence against African American men and women. In France, the country has banned the full-face veil while making efforts to present itself as a secular republic. Young men and women whose parents and grandparents came from sub-Sahara and North Africa are stuck coping with a society that fails to take into account the barriers to employment and education they face. Discrimination at Work provides an incisive comparative analysis of how the nature of discrimination in both countries has changed, now often hidden, or steeped in deep unconscious bias. While it is rare for employers in both countries to openly discriminate, deep systemic discrimination exists, rooted in structural and environmental causes and the ways each state has dealt with difference in general. Invigorating and incisive, the book examines hot-button issues of sexual harassment, gender discrimination, and equality for LGBT individuals, delivering comparisons meant to further social equality and fundamental human rights across borders
Martha Minow, Brown v. Board in the World: How the Global Turn Matters for School Reform, Human Rights, and Legal Knowledge, 50 San Diego L. Rev. 1 (2013).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Family Law
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Education Law
,
Comparative Law
Type: Article
Abstract
Global perspectives can contribute to our understandings of any one nation’s laws and decisions. In this light, America’s educational landmark, Brown v. Board of Education, matters not just for the United States but around the world. Inside the United States, a cottage industry of academic scholars studies the influence of Brown where the decision’s impact reaches well beyond racial desegregation of schools. The litigation has by now a well-known and complicated relationship to actual racial integration within American schools, as the case perhaps exacerbated tensions and slowed otherwise gradual reform, and perhaps at the same time galvanized the social movement enabling major legislative and social change—producing notable change in the racial composition of schools by the 1970s, and yet further backlash and shifts returning schools to considerable racial separation by 2004.
Robert C. Bordone, Danny Ertel, Martha Minow, Robert H. Mnookin, Bruce Patton, James K. Sebenius & William Ury, In Memoriam: Roger Fisher, 126 Harv. L. Rev. 875 (2013).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Martha L. Minow, Principles or Compromises: Accommodating Gender Equality and Religious Freedom in Multicultural Societies, in Gender, Religion, and Family Law: Theorizing Conflicts between Women’s Rights and Cultural Traditions 3 (Lisa Fishbayn Joffe & Sylvia Neil eds., Brandeis Univ. Press 2013).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Religion
,
Civil Rights
,
Gender & Sexuality
,
Religious Rights
Type: Book
Abstract
Groundbreaking theoretical and legal approaches to resolving conflicts between gender equality and cultural practices
Martha Minow, Affordable Convergence: "Reasonable Interpretation" and the Affordable Care Act, 126 Harv. L. Rev. 117 (2012).
Categories:
Health Care
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Health Law & Policy
Type: Article
Abstract
"The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution . . . ." — Joseph Story (1833). That the Court was sharply divided was not a surprise. The contrasting briefs — including a record 136 from amici — laid out the dispute. Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, and another would entirely uphold the same law; the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world. The unexpected further, controlling opinion authored by Chief Justice Roberts was historic not only in its bottom line (upholding most of the law but under the federal taxing power, after finding no power under the Commerce Clause), but also in its staking out a third position, outside the two warring camps. Leaving to others speculative debate about the motivations and intentions of Chief Justice Roberts, this Comment argues that this third opinion transcended the polarized political debates surrounding the legal challenge to President Barack Obama’s signature domestic policy initiative through analytical convergence, not political compromise. Although pundits called it a compromise, something else was at work. Here, Chief Justice Roberts followed Justice Joseph Story’s view of “reasonable interpretation.” Seeing the decision as one of law, not just of politics, demonstrates the power of arguments and explanations rather than sheer outcomes or advantage. The reasons and interpretations exchanged in this case — not just the votes and the result — amplify the Supreme Court as a symbol of the rule of law. And, because it was a legal ruling, there will be repercussions for legal doctrines and for the actual scope of governmental powers for years to come. Or so I will argue here.
Martha L. Minow, Seeing, Bearing, and Sharing Risk: Social Policy Challenges for Our Time, in Shared Responsibility, Shared Risk: Government, Markets and Social Policy in the Twenty-First Century 253 (Jacob S. Hacker & Ann O’Leary eds., Oxford Univ. Press 2012).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Banking & Finance
Sub-Categories:
Risk Regulation
,
Financial Markets & Institutions
,
Law & Public Policy
,
Social Welfare Law
,
Law & Economics
Type: Book
Abstract
This chapter focuses on the social shift of economic risk to individuals and the need to overcome the barriers—psychological, cognitive, analytic, and ideological—to understanding the risk allocation. It begins with a historical overview of risks to human health, welfare, and well-being before explaining why it is difficult to see risk and its shift from government and businesses to individuals and families. It then looks at policy proposals to address these shifts, from income support to consumer credit reforms. The chapter concludes by arguing that democratic action toward addressing social policy challenges posed by these shifts is not possible in the absence of a greater sense of shared risks and shared responsibility.
Martha Minow, "A Proper Objective": Constitutional Commitment and Educational Opportunity after Bolling v. Sharpe and Parents Involved in Community Schools, 55 Howard L.J. 575 (2012).
Categories:
Family Law
,
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Fourteenth Amendment
,
Fifth Amendment
,
Race & Ethnicity
,
Civil Rights
,
Education Law
Type: Article
Abstract
Constitution Day Lecture: Four years ago, the United States Supreme Court, in a case called Parents Involved in Community Schools v. Seattle School District No. 1, rejected as unconstitutional two school district plans that used race in student assignments in pursuit of racially integrated public schools. Ever since, school districts and communities seeking to promote diversity within public schools have been treading treacherous water. The Court rejected two plans but did not clearly bar race-conscious means in all circumstances. Justice Anthony Kennedy wrote the controlling opinion, as he supplied the fifth vote crucial to striking down the plans in Seattle and Louisville, but he also joined the otherwise dissenting Justices in concluding that achieving the educational benefits of diversity remains a compelling interest that school districts may pursue. The Department of Justice is working hard on a guide to help school systems sort through the issue. I will use this subject matter to comment on how we arrived at this moment, to suggest steps addressing the issue going forward, and to reflect on the nature of our Constitution.
Martha Minow, Foreword: Making Economic and Social Rights Real, in Katharine G. Young, Constituting Economic and Social Rights v (2012).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Law & Political Theory
,
Law & Social Change
,
Human Rights Law
Type: Book
Abstract
Food, water, health, housing, and education are fundamental to human freedom and dignity, yet only recently have legal systems begun to secure these fundamental individual interests as rights. This book analyses the transformation of socio-economic rights into constitutional rights, and their impact on public law and constitutional theory.
Martha Minow, Preface: Meaningful Reciprocity—In Honor of Clare Dalton, 20 J.L. & Pol'y 297 (2012)
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Abstract
Among the many wonders of Clare Dalton is her brilliant performance in a one-person dramatic show as Virginia Woolf. So it seems fitting to turn to Woolf in thinking about how to introduce this tribute volume marking the close of Dalton’s career as a legal academic and start of her new career. Woolf once wrote: “It is no use trying to sum people up.” It is no use, then, to try to capture Professor Dalton solely by way of listing her many accomplishments: her creation of the landmark and vital Domestic Violence Institute at Northeastern Law School; her incisive, elegant writing; her passionate teaching at several law schools; or the awards from Radcliffe, the Massachusetts Women’s Political Caucus, Massachusetts Women’s Bar Association, and recognition as Feminist of the Year by the Feminist Majority Foundation. As marvelous as all of these are, naming them does not evoke her vividness, grace, or sense of fun. Woolf, thank goodness, has some other insights of use.
Martha Minow, Storytelling and Political Resistance: Remembering Derrick Bell (with a story about Dalton Trumbo, 28 Harv. J. on Racial & Ethnic Just. 1 (2012).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Scholarship
,
Legal History
Type: Article
Carol S. Steiker, Daniel C. Richman, David A. Skeel, Martha Minow, Michael J. Klarman, Pamela S. Karlan & Robert E. Scott, In Memoriam: William J. Stuntz, 124 Harv. L. Rev. 1844 (2011).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Martha Minow, Confronting the Seduction of Choice: Law, Education and American Pluralism, 120 Yale L.J. 814 (2011).
Categories:
Legal Profession
,
Family Law
Sub-Categories:
Education Law
,
Legal History
Type: Article
Abstract
School choice policies, which allow parents to select among a range of options to satisfy compulsory schooling for their children, have arisen from five periods of political and legal struggle. This Feature considers the shape of school choice that emerged in the 1920s education fight over Americanization of immigrants; the freedom-of-choice plans used to avoid court-ordered school desegregation in the 1950s and 1960s; magnet schools used to promote school desegregation in the 1970s until they were halted by the Supreme Court; constitutional campaigns for vouchers to pay for religious schooling; and current experiments with charter schools and other alternatives, including special-identity schools. The idea of school choice appeals to individual freedom, market competition, religious freedom, multiculturalism, and ideological neutrality. School choice programs draw new talent into schooling and offer new avenues for social integration but only if that goal becomes an explicit public commitment, shaping available choices. Otherwise, school choice can enable new forms of social separation and obscure the absence of equal opportunities for all students.
Martha L. Minow, Foreword: Medical-Legal Partnerships Raise the Bar for Health and Justice, in Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership xv (Elizabeth Tobin Tyler, Ellen Lawton, Kathleen Conroy, Megan Sandel & Barry Zuckerman eds., 2011).
Categories:
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Health Law & Policy
,
Elder Law
Type: Book
Abstract
Not every illness has a biological remedy. Poverty, Health and Law presents health in the broader social context of people's lives, providing insights into the advancement of health through legal advocacy and interdisciplinary solutions to complex social problems. Focusing on basic legal rights and their relation to health--income and employment, housing, education, legal status, and personal safety--the authors provide information and insight into how the law may be used as a tool to improve health and how health care providers and lawyers can work together to invoke more effective and preventive remedies for patients and clients. As America prepares for major reform of its health care system, Poverty, Health and Law brings to the forefront the need to address the root causes of illness and poor health, particularly among vulnerable populations, by exploring remedies and innovations both within and outside of the health care system.
Martha L. Minow, Reading the World: Law and Social Science, in 2 Transformations in American Legal History: Law, Ideology, and Methods - Essays in Honor of Morton J. Horwitz 13 (Daniel W. Hamilton & Alfred L. Brophy eds., Harvard Univ. Press 2011).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Ethics
Type: Book
Abstract
Over the course of his career at Harvard, Morton Horwitz changed the questions legal historians ask. The Transformation of American Law, 1780–1860 (1977) disclosed the many ways that judge-made law favored commercial and property interests and remade law to promote economic growth. The Transformation of American Law, 1870–1960 (1992) continued that project, with a focus on ideas that reshaped law as we struggled for objective and neutral legal responses to our country’s crises. In more recent years he has written extensively on the legal realists and the Warren Court. Following an earlier festschrift volume by his former students, this volume includes essays by Horwitz’s colleagues at Harvard and those from across the academy, as well as his students. These essays assess specific themes in Horwitz’s work, from the antebellum era to the Warren Court, from jurisprudence to the influence of economics on judicial doctrine. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.
Martha L. Minow, Single-Sex Public Schools: The Story of Vorchheimer v. School District of Philadelphia, in Women and the Law Stories 93 (Elizabeth M. Schneider & Stephanie M. Waldman eds., Found. Press 2011).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Race & Ethnicity
,
Gender & Sexuality
,
Civil Rights
,
Education Law
Type: Book
Martha Minow, Taking up the Challenge of Gender and International Criminal Justice: In Honour of Judge Patricia Wald, 11 Int'l Crim. L. Rev. 365 (2011).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Gender & Sexuality
,
Laws of Armed Conflict
,
Biography & Tribute
Type: Article
Martha L. Minow & Joseph W. Singer, In Favor of Foxes: Pluralism as Fact and Aid to the Pursuit of Justice, 90 B.U. L. Rev. 903 (2010).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Martha Minow, Dialogue, Discourse, and Debate: Introducing the Harvard National Security Journal, 1 Harv. Nat'l Security J. (2010).
Categories:
Government & Politics
Sub-Categories:
National Security Law
Type: Article
Martha L. MInow, Foreword: Designing Learning for All Learners, in A Policy Reader in Universal Design for Learning ix (David T. Gordon, Jenna W. Gravel & Laura Schifter eds., 2009).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Public Interest Law
,
Education Law
Type: Book
Abstract
This policy reader comprises a notably wide range of articles that address the challenges and opportunities facing policy makers as they consider UDL’s implications for federal, state, and local policy. A Policy Reader in Universal Design for Learning includes essays that place UDL in the context of the education field as a whole and that examine how UDL might inform pressing contemporary discussions about accountability and access to the curriculum. The volume also sheds light on various assistive technologies. It concludes by considering contemporary assessments of student learning and teacher effectiveness, and points to how they might be improved through UDL and by expanding opportunities for learning to more young people. A timely and much-needed volume, A Policy Reader in Universal Design for Learning brings UDL to the center of discussions about contemporary education policy and reform.
Martha L. Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy, in Government by Contract: Outsourcing and American Democracy 110 (Martha L. Minow & Jody Freeman eds., Harv. Univ. Press 2009).
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Government Accountability
,
Government Transparency
,
Military, War, & Peace
Type: Book
Abstract
"The Dramatic Growth of Government since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government's costs, efficiency, and quality of service. This concern, combined with rising confidence in private markets, motivates the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. "Government by contract" now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects." "Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values?" "Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns."--Jacket. An earlier version of the chapter appeared as an article in: 46 Boston College Law Review 989 (2005).
Martha Minow, Response, Accommodating Integration, 157 U. Pa. L. Rev. PENNumbra 1 (2008).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Social Change
,
Disability Law
Type: Article
Abstract
Response to Elizabeth F. Emens's article "Integrating Accommodation" in 156 University of Pennsylvania Law Review 839 (2008).
Martha Minow, After Brown: What Would Martin Luther King Say?, 12 Lewis & Clark L. Rev. 599 (2008).
Categories:
Government & Politics
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Education Law
,
Supreme Court of the United States
Type: Article
Abstract
The occasion of the first Martin Luther King Jr. Day Speech at Lewis and Clark Law School, following on the heels of the Supreme Court's rejection of two voluntary racial school integration plans, warrants revisiting the conception of equality that called for school integration, the prospects for equal opportunity without education, and remaining arguments for integration. "Integration" here means more than terminating legally-enforced segregation, and more than sheer mixing of people with different races and identities in the same setting. As Dr. King described it, integration involves the creation of a community of relationships among people who view one another as valuable, who take pride in one another's contributions, and who know that commonalities and synergies outweigh any extra efforts that bridging differences may require. Before the disillusionment accompanying the apparent failure of judicially-mandated school integration, integration was inseparable from access to opportunity as a goal of civil rights reformers from the 19th century through the middle of the 20th. W. E. B. DuBois and Martin Luther King, Jr. separately emphasized that racially separate instruction by teachers who believe in their students' capacities would be better than racially-mixed instruction by teachers who disparaged African-American children - but integration would be still better. Opposition to court-ordered desegregation remedies and judicial retreat occurred just as approval of racial mixing and even integration succeeded as cultural and political ideals. Current educational wisdom identifies strategies for equal educational opportunity apart from integration. These include curricular and academic supports that demand high standards, prepare minority students to achieve in a sometimes hostile world, and craft for each student the social identity of an achiever who is a member of a community of learners. Focused school reforms aligning the curriculum with standards, more "time-on-task" with longer school days, initiatives to recruit and support effective teachers, and shifts in school finance guided by standards of adequate education and comparable opportunities can mitigate the disparities still associated with racially distinct school communities. But as even the good arguments for socioeconomic integration reveal, failure to pursue racial integration - including efforts to create truly inclusive communities of mutual respect - can recreate racial segregation through tracking, special education assignments, and students' own divisions in lunch tables and cliques. Racial integration informed by the demographic changes making this a multicultural and multi-racial society remains a distinctive goal apart from other efforts to ensure equal educational opportunities. Justice Kennedy's separate opinion in Parents Involved in Community Schools v. Seattle School District No. 1 along with the four dissenters create a fragile majority that would permit school systems and housing developers to local schools with the aim of encouraging racial integration, to develop programs designed to attract racially diverse groups of students, and to hold meetings and recruitment efforts to attract diverse groups of students and teachers. Contrary to the Court's majority opinion, pretending to have achieved color-blind as well as open opportunity - when we have not - disables individuals and communities from understanding what is going on and from becoming equipped to deal with it. In addition to the strategies for integration left open, families and students can choose integrated schools by their residential choices and by making their own lives look like the high-concept ads celebrating integration.
Martha Minow, Why Educate?, in Why Do We Educate? Voices From the Conversation 307 (Mark A. Smylie ed., 107th Yearbook of the Nat'l Soc'y for the Study of Educ. 2008).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Law & Public Policy
,
Education Law
Type: Book
Martha Minow, Is Pluralism an Ideal or a Compromise?: An Essay for Carol Weisbrod, 40 Conn. L. Rev. 1287 (2008).
Categories:
Legal Profession
,
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion
,
Gender & Sexuality
,
Law & Political Theory
,
Biography & Tribute
Type: Article
Abstract
How much room should a secular democracy ensure for religious and ethnic subgroups - and when it does so, is this a matter of normative principle or instead a compromise of principles? A prime context for this question arises with conflicts between women's equality advanced by national constitutions and international human rights, on the one hand, and state deference to traditional cultural and religious norms, on the other. Informed by Carol Weisbrod's scholarship, this essay argues that accommodations for minority groups by liberal democracies do not require a compromise when convergence between values can be achieved. When convergence cannot be achieved, compromise is not always wrong and can on occasion be justified to pursue social stability and to express competing principles embraced within the liberal democracy, but compromise cannot be justified if it involves capitulation to threats. Neither compromise nor convergence can resolve deep differences over whether the group or the individual should be the focus for legal protection or whether rights, duties, or compassion should be the organizing basis for law. Governance devices, including decentralization in the form of federalism and private ordering through corporations, fraternal groups, contracts, and families, help liberal societies manage potential conflicts between minority group practices and mainstream individual rights, and also support the kind of pluralism that can enrich the entire society. An edited and updated version of this article is reprinted as a chapter in: Gender, Religion, & Family Law: Theorizing Conflicts between Women’s Rights and Religious Laws (Lisa Fishbayne Joffe & Sylvia Neil eds., Brandeis University Press 2013).
Martha Minow, Book Review, 2 Int'l J. Transitional Just. 116 (2008) (reviewing Trudy Govier, Taking Wrongs Seriously: Acknowledgement, Reconciliation, and the Politics of Sustainable Peace (2006).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Legal Theory & Philosophy
Type: Article
Abstract
Review of: Taking Wrongs Seriously: Acknowledgement, Reconciliation, and the Politics of Sustainable Peace, by Trudy Govier (Humanity Books 2006).
Martha Minow, Making History or Making Peace: When Prosecutions Should Give Way to Truth Commissions and Peace Negotiations, 7 J. Hum. Rts. 174 (2008).
Categories:
Civil Practice & Procedure
,
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
Negotiation & Alternative Dispute Resolution
,
International Humanitarian Law
Type: Article
Abstract
This essay identifies a set of choices for national leaders and human rights advocates following mass atrocities, including whether to pursue a truth commission, how to coordinate its relationship with potential criminal prosecutions, whether to “name names,” as well as trade-offs between pursuit of human rights vindication and pursuit of peace. The strengths and limitations of criminal and civil trials for legal enforcement of human rights, no less than the promise and constraints of truth commissions, require careful assessment of particular political contexts and prospects for success. Public and scholarly debates over whether and when to pursue a truth commission, as well as the work of such commissions, can advance the development of and commitment to human rights ideals in communities emerging from periods of mass atrocity. The choice between trials and truth commissions resembles but also differs from the choice between accountability and peace; both choices expose potential contrasts between vindicating and enacting human rights. Even as many nations use both trials and truth commissions—simultaneously or in a series—the distinctive contribution of each to advancing human rights remains more contingent than inherent. Each institutional response warrants close consideration.
Martha Minow, We’re All for Equality in U.S. School Reforms: But What Does it Mean?, in Just Schools: Pursuing Equality in Societies of Difference (Martha Minow, Richard A. Shweder & Hazel Markus eds., Russell Sage Found. 2008).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Gender & Sexuality
,
Race & Ethnicity
,
Religious Rights
,
Education Law
Type: Book
Todd D. Rakoff & Martha Minow, A Case for Another Case Method, 60 Vand. L. Rev. 597 (2007).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Martha Minow, Religion and the Burden of Proof: Posner’s Economics and Pragmatism in Metzl v. Leininger, 120 Harv. L. Rev. 1175 (2007).
Categories:
Legal Profession
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Religion
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Martha L. Minow, Living Up to Rules: Holding Soldiers Responsible for Abusive Conduct and the Dilemma of the Superior Orders Defence, 52 McGill L.J. 1 (2007).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Military, War, & Peace
,
Laws of Armed Conflict
Type: Article
Abstract
Recent world events underscore the importance of the dilemma of the superior orders defence and the question of how to prevent soldiers from undertaking abusive conduct or committing atrocities. This article examines the degree to which holding individual soldiers legally responsible for their actions can be seen to be an effective strategy for the prevention of atrocities and explores complementary strategies aimed at the prevention of abusive conduct by soldiers. The article surveys historical and legal materials to illustrate the ongoing debate over the scope of the superior orders defence in U.S. and international law. The author then surveys a range of social science literature that suggests why some people participate in atrocities, and illuminates how difficult it would be for individuals to understand and comply with a rule expecting compliance with all superior orders except those that are illegal. The author concludes that the evidence undermines the likelihood that a norm establishing individual responsibility would succeed in changing conduct. The author argues that it is important to restrict the application of the superior orders defence in order to uphold a symbolic ideal of individual responsibility, but that real prospects for preventing atrocities by soldiers depend on changing the organizational design and resources surrounding the soldier and specifying new obligations for those in command. The author recommends changes to military incentives, culture, and practices. Proposed strategies include the provision of meaningful and effective training programs for both soldiers and officers, the establishment of a military culture in which soldiers understand their superiors to care about violations of law and morality, and the integration of legal analysis into the daily operations of all levels of the military hierarchy so that the burden of understanding lawfulness does not rest solely on the shoulders of the ordinary soldier. Presented as the Raoul Wallenberg Human Rights Lecture at McGill University (March 9, 2006).
Libby S. Adler, Lisa A. Crooms, Judith G. Greenberg, Martha L. Minow & Dorothy E. Roberts, Mary Joe Frug's Women and the Law (Found. Press 4th ed. 2007).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Labor & Employment
,
Family Law
,
Legal Profession
Sub-Categories:
Gender & Sexuality
,
Race & Ethnicity
,
Civil Rights
,
Discrimination
,
Law & Public Policy
,
Feminist Legal Theory
,
Reproduction
,
Domestic Relations
,
Employment Discrimination
,
Legal Education
,
Legal Reform
Type: Book
Abstract
"Organized around three central topics of work, family, and body, this book reflects a multiplicity of feminist stances and critiques. Highlights include treatment of same-sex marriage developments; sustained treatment of perspectives and problems affecting women of color; contemporary assessments of sexual harassment law; expanded treatment of women and the labor market, the economics of divorce, pornography, and prostitution; federal civil rights and state tort law responses to domestic violence; and current regulation of women's reproductive decisions and critiques of reproductive technologies." --Publisher
Martha Minow, Naming Horror: Legal and Political Words for Mass Atrocities, 2 Genocide Stud. & Prevention 37 (2007).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Terrorism
,
Law & Social Change
Type: Article
Abstract
We live at a time when journalists coin phrases like ‘‘compassion fatigue’’ to describe failures of ordinary outrage and human action against massive killings, famines, and plagues. Our is a time when mass media and the Internet offer unprecedented connections among people—and when the top ‘‘hits’’ for Internet searches of ‘‘atrocity’’ and ‘‘nameless crime’’ each produce the Web sites of rock bands,1 even as the ongoing and vicious brutalities in the Darfur region of the Sudan escalate and Rwanda, Cambodia, Sierra Leone, and still other regions stagger to recover from the legacies of their own mass atrocities. Other nations participate in the creation and operation of ad hoc and longterm international criminal institutions, and at times use the United Nations’ cumbersome mechanisms to name and even condemn mass violence, but fail to provide swift and effective action to prevent or mitigate mass atrocities.
Lani Guinier & Martha Minow, Preface to Responses – Dynamism, Not Just Diversity 30 Harv. J.L. & Gender 269 (2007).
Categories:
Discrimination & Civil Rights
,
Family Law
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Gender & Sexuality
,
Race & Ethnicity
,
Law & Social Change
,
Education Law
Type: Article
Abstract
Part of Multi-Disciplinary Responses to Susan Sturm's "The Architecture of Inclusion."
Martha L. Minow, Should Religious Groups Ever Be Exempt From Civil Rights Laws?, 48 B.C. L. Rev. 781 (2007).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Religion
,
Race & Ethnicity
,
Law & Public Policy
,
Civil Rights
,
Gender & Sexuality
,
Religious Rights
Type: Article
Abstract
Should a private religious university lose its tax exempt status if it bans interracial dating? Should a religious school be able fire a pregnant married teacher because her continued work would violate the church's view that mothers of young children should not work outside the home? Should a religious social service agency, such as Catholic Charities, be exempt from a state regulation banning discrimination in the delivery of social services on the basis of sexual orientation? Should religious organizations be exempt from civil rights laws? This article argues that these questions raised difficult normative issues that have been answered practically by reference to the varying effects of historical social movements, producing the differential treatment of race, gender, and sexual orientation laws. The article explores avenues for negotiating solutions other than full exemptions or no exemptions. Besides the instrumental goal of solving - or avoiding - complex political and legal problems, this question of stance injects the dimensions of virtue ethics and value-added negotiation. In so doing the article proposes ways to pursue productive stances toward clashes over religious exemption claims is highly relevant to sustaining and replenishing both American pluralism and constitutional protections for minority groups.
Martha Minow, The Government Can’t, May, or Must Fund Religious Schools: Three Riddles of Constitutional Change for Laurence Tribe, 42 Tulsa L. Rev. 911 (2007).
Categories:
Constitutional Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Religion
,
Constitutional History
,
Law & Public Policy
,
Federalism
Type: Article
Abstract
Part of the Legal Scholarship Symposium: The Scholarship of Laurence Tribe. Three linked puzzles arise with the constitutionality of public funding private schools - where the funding scheme excludes religious schools: how can the demands of both the Establishment and Free Exercise clause be satisfied; what does respecting precedent mean when there is a recent reversal of one line of cases, and when does federalism demand deference to the supremacy of the federal constitution or instead respect for state autonomy? The puzzling conjunction of the free exercise and establishment could lead government actors has led the Supreme Court to call for "play-in-the-joints," allowing some distance between government aid and religious institutions even at if it limits the free exercise of some individuals who at the margin may choose a non-religious path in order to get the public subsidy. The second puzzle - how to respect precedent when a recent new precedent overturns an older one - suggests some respect people's reliance on surrounding precedents, here governing the pre-existing relationship between religion and government. The third puzzle, federalism's Janus-faced tribute to state autonomy, requires federal supremacy but should permit the variety that decentralization enables. Given these puzzles, consideration of policy effects is justified; it is relevant to consider how mandating public funding of vouchers and tax credits redeemable at parochial schools as part of any public educational aid would likely lead many more families to opt for private religious schools, schools - and would alter the character of schooling and socialization in America. Taken together, stare decisis and the religion clauses suggest that federal courts now should leave room for state experimentation and variety rather than a uniform national solution on the issue of compelled public aid to religious schools. This approach is informed by Professor Tribe's approach to constitutional doctrine not a straight-jacket but instead a tool for addressing complex difficulties in light of past resolutions of analogous difficulties as well as past and enduring normative commitments.
Martha Minow, The Persistence of Falsehood and the Protocols of the Elders of Zion, in From the Protocols of the Elders of Zion to Holocaust Denial Trials: Challenging the Media, the Law, and the Academy 47 (Debra Kaufman, Gerald Herman, James Ross & David Philips eds., 2007).
Categories:
Legal Profession
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Disciplinary Perspectives & Law
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Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Religion & Law
,
Legal History
Type: Book
Martha Minow, Tolerance in an Age of Terror, 16 S. Cal. Interdisc. L.J. 453 (2007).
Categories:
Criminal Law & Procedure
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Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Terrorism
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Civil Rights
,
National Security Law
Type: Article
Abstract
Law review articles and public interest group advocacy charge the United States since 9/11 with overreaction that jeopardizes legal and cultural commitments to tolerance; recent books and articles addressing several European nations allege under-reaction, preserving often in the name of multicultural tolerance too much space for intolerant and even murderous individuals and groups to plan and enact violent acts. Thus, reports charging excessive restrictions of civil liberties and governmental checks and balances in the United States contrast sharply with warnings of inaction and negligence by European countries that allegedly extend freedoms and decency to potential terrorists and hate mongers who constrict or attack the very systems that support them. The apparent pattern of overreaction in the United States and under-reaction in Europe may reveal simply the two risks facing democratic societies that confront terrorism. But in fact the stories of under-reaction resonate within the United States and the narrative of overreaction may have its echo in Europe. It is possible to view the U.S. as under-regulating hate speech and political activity aiming to overthrow democracy when compared with the French and Germany hate speech bans, and the German prohibition prevent political parties that would challenge liberal democracy. That such steps would violate the U.S. constitution from some perspectives is simply further evidence of U.S. failures to address terrorist risks seriously. Similarly, the U.S. may appear to under-respond when compared with Britain's extensive use of face recognition cameras and national I.D. cards with bio-metrics. Failures to devise increased security measures in the United States for chemical plants, water works, cargo shipments, and nuclear material that could end up in terrorist hands also look like under-reaction, given security analyses and expert recommendations. Reading the narratives or over- and under-reaction together, observers could conclude that any liberal democracy could be criticized both for over- and under-reacting to terror. A more productive lesson is to examine whether misdirected policies constrain liberties and target minorities without increasing safety for resident populations. The reversibility and simultaneity of narratives of over- and under-reaction could be a clue to a defect in the analysis that links security and tolerance. Policies invading civil rights and civil liberties can in fact distract from costly and difficult security measures that would not impair rights. Looking at the narratives of under- and over-reaction together, we could come 1) to focus on measures to increase security without increasing intolerance, and 2) address dis-satisfactory reception of minorities and treatment of immigrants without confusing these with security issues. The result might focus on steps not yet taken in the U.S. that would make us more secure without jeopardizing freedoms or tolerance. Reprinted as a chapter in: Top Ten Global Justice Law Review Articles: 2007 Annual Review (Amos N. Guiora ed., Oxford Univ. Press 2008).
Martha Minow, Constituting our Constitution, Constituting Ourselves: Comments on Reva Siegel's Constitutional Culture, Social Movement Conflict and Constitutional Change, 94 Calif. L. Rev. 1455 (2006).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Social Change
,
Federalism
,
Supreme Court of the United States
Type: Article
Abstract
Part of the Brennan Center Jorde Symposium on Constitutional Law.
Martha Minow, What the Rule of Law Should Mean for Civics Education: From the ‘Following Orders’ Defence to the Classroom, 35 J. Moral Educ. 137 (2006).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Military, War, & Peace
,
Laws of Armed Conflict
,
Legal Education
Type: Article
Abstract
Sixty years after the International Military Tribunal opened in Nuremberg to try ‘major war criminals’, how should soldiers learn not to follow clearly illegal or unconscionable orders? Following the Charter of the International Military Tribunal, judges during the Nuremberg Trials rejected defendants' efforts to avoid punishment on the basis of superior orders. The Cold War stymied subsequent efforts to codify the norm; subsequent tribunals have adopted similar, but not identical, versions of the rule, as have domestic legal systems. Psychological research by Lawrence Kohlberg and Stanley Milgram raises serious questions about whether young soldiers can or will use their own moral assessments to disobey illegal orders or resist engagement in conduct abusing the rights of others. Further adding to the risks of atrocity are the stress and fear of wartime, the ambiguities and complexities of the war against terror, and confusion about the actual standards governing detentions, interrogations and treatment of civilians by the military. Hence, reducing the risks of atrocity requires not only refining and teaching the rule that superior orders are not a defence to military atrocity but also integrating legal and ethical analysis into the day‐to‐day operations of the military, and conceiving of law in this context as a constant set of questions. The dilemma posed for the soldier who must learn both to obey orders and to resist illegal orders offers a rich focal point for students in middle and high school settings. Such instruction could strengthen civilian oversight of the military while also deepening students' abilities to bring their conscience to bear in many settings where obedience and conformity jeopardize adherence to law and morality.
Martha Minow, Commentary, Engendering Difference, in 2 The Jewish Political Tradition: Membership 165 (Michael Walzer, Menachem Lorberbaum & Noam J. Zohar eds., 2006).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Jewish Law
,
Religion & Law
Type: Book
Martha Minow, What is The Greatest Evil?, 118 Harv. L. Rev. 2134 (2005) (reviewing Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (2004)).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Constitutional Law
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
National Security Law
,
Human Rights Law
,
Legal Ethics
Type: Article
Abstract
Review of The Lesser Evil: Political Ethics in an Age of Terror, by Michael Ignatieff (2004).
Martha Minow, Fostering Capacity, Equality, and Responsibility (and Single-Sex Education): In Honor of Linda McClain, 33 Hofstra L. Rev. 815 (2005).
Categories:
Legal Profession
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Gender & Sexuality
,
Education Law
,
Biography & Tribute
Type: Article
Peter Galison & Martha Minow, Our Privacy, Ourselves in the Age of Technological Intrusions, in Human Rights in the 'War on Terror' 258 (Richard Ashby Wilson ed., 2005).
Categories:
Technology & Law
,
Criminal Law & Procedure
,
Constitutional Law
,
Legal Profession
Sub-Categories:
Constitutional History
,
Terrorism
,
Legal History
,
Legal & Political Theory
,
Information Privacy & Security
Type: Book
Abstract
After the terrorist attacks of 9/11, the United States government has elevated terrorism as the most important issue shaping government policies. What has happened and what should happen to legal protections of individual freedom in this context? Privacy is one of the individual freedoms in serious jeopardy due to post-9/11 governmental initiatives, yet it lacks comprehensive and clear definition in law and policy. Philosophically and historically, it may best be understood as a multivalent social and legal concept that refers simultaneously to seclusion, self-determination, and control over other people's access to oneself and to information about oneself. Even though its meanings are multiple and complex, privacy is closely connected with the emergence of a modern sense of self. Its jeopardy signals serious risk to the very conditions people need to enjoy the kind of self that can experiment, relax, form and enjoy intimate connections, and practice the development of ideas and beliefs for valued expression. The fragility of privacy is emblematic of the vulnerability of individual dignity and personal rights in the face of collective responses to terror and other enormous threats, real or perceived. In the face of narratives treating both technological change and security measures as either desired or inexorable, claims that privacy stands as a right outside of history, grounded in nature or divine authority, are not likely to prove persuasive or effective.
Martha L. Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy, 46 B.C. L. Rev. 989 (2005).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Government Transparency
,
Military, War, & Peace
Type: Article
Abstract
Private contractors have played key roles in recent high-profile scandals. These scandals hint at the degree to which the U.S. military has increased the scope and scale of its reliance on private security companies in recent decades. This trend offers many advantages, including nimbleness in the deployment of expertise and geographic flexibility. But it also departs from conventional methods of accountability through both public oversight and private market discipline. The lack of transparency in the use of private contractors compounds the problem of assessing the impact of their increasing role. Failures of basic governmental oversight to ensure contract enforcement by the Department of Defense are welldocumented. Departures from conventional government contracting procedures exacerbate these failures and obscure whether inherently governmental functions are in effect privatized. The large sums of money involved contribute to risks of corruption and a scale of private lobbying that can distort the legislative process. These developments jeopardize the effectiveness of military activities, the professionalism of the military, the integrity of the legislative process and foreign policy decision making, public confidence in the government, national self-interest, and the stability of the world order.
Martha Minow, Just Education: An Essay for Frank Michelman, 39 Tulsa L. Rev. 547 (2004).
Categories:
Legal Profession
,
Family Law
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Fourteenth Amendment
,
Education Law
,
Biography & Tribute
,
Legal Scholarship
Type: Article
Abstract
Part of The Legal Scholarship Symposium: The Scholarship of Frank I. Michelman
Martha Minow, Surprising Legacies of Brown v. Board, 16 Wash. U. J.L. & Pol'y 11 (2004).
Categories:
Family Law
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Education Law
Type: Article
Abstract
Perhaps the most powerful legacy of Brown v. Board is this: opponents in varied political battles fifty years later each claim ties to the decision and its meaning. So although the analogy between Brown and same-sex marriage has divided Black clergy, each side vies to inherit the civil rights heritage. President George W. Bush invoked Brown in opposing race-conscious college admission practices. The success of Brown in reshaping the moral landscape has been so profound that I fear we do not fully comprehend its legacies—and may fail to attend sufficiently to continuing controversy and complexities in its wake. I will talk today about legacies that may not be so obvious—after first considering how to understand what Brown did and did not accomplish directly. Reprinted as a chapter in: Legacies of Brown: Multiracial Equity in American Education (Dorinda J. Carter, Stella M. Flores & Richard J. Reddick eds., Harvard Educational Review 2004).
Martha Minow, Innovating Responses to the Past: Human Rights Institutions, in Burying the Past: Making Peace and Doing Justice after Civil Conflict 87 (Nigel Biggar ed., expanded and updated ed. 2003).
Categories:
International, Foreign & Comparative Law
,
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Legal Theory & Philosophy
,
Human Rights Law
,
Nonprofit & Nongovernmental Organizations
,
International Law
Type: Book
Abstract
As Martha Minow remarks, the twentieth century was marked by mass violence, genocide, and torture, along with efforts at secrecy surrounding the perpetrators of such injustices. Law is a public instrument to deal with the past, but it involves a number of questions about collective narratives and memories about the past. For example, whose memories deserve public attention and an open trial? Also, is the adversarial trial the only or best means for public truth-telling about the past? Minow draws from scientific research into memory to highlight the significance for people of prior narratives – in combination with current expectations, needs, and beliefs – in selecting, arranging, and valuing bits of information. In this framework, Minow scrutinizes post-World War II innovations for dealing with human rights violations. These include the International Military Tribunal in Nuremburg; the United Nations; nongovernmental organizations, such as Amnesty International and Human Rights Watch; ad hoc international tribunals; truth commissions, and the International Criminal Court. Examining these innovations, she suggests that each has strengths and weaknesses in forging collective memories to address the past and prevent future injustices.
Martha Minow, Foreword: Why Retry? Reviving Dormant Racial Justice Claims, 101 Mich. L. Rev. 1133 (2003).
Categories:
Discrimination & Civil Rights
,
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Criminal Evidence
,
Civil Rights
,
Race & Ethnicity
,
Courts
Type: Article
Abstract
Two familiar arguments oppose lawsuits and legislative efforts to address racial injustices from our national past, and a third tacit argument can be discerned. "Why open old wounds?": this question animates the first argument. The evidence is stale - this expresses the second argument. The third, less explicit objection reflects worries that exposing some gross and unremedied racial injustices from the past will reveal the scale of imperfections in the systems of justice and government and thereby undermine the legitimacy of those systems. To introduce the meticulous and passionate essays in this Colloquium, I elaborate and respond to each of these questions. Like the Colloquium authors, I think it far more important that public attention come to these issues than that any particular remedy be secured. For inattention has been the insult laid upon the injuries of the past. Introduction to the Colloquium: Retrying Race.
Martha Minow, Public and Private Partnerships: Accounting for the New Religion 116 Harv. L. Rev. 1229 (2003).
Categories:
Government & Politics
Sub-Categories:
Public Law
,
Government Benefits
,
Government Accountability
Type: Article
Abstract
What do American schools, prisons, welfare agencies, and social service programs have in common? These institutions have been largely or exclusively public in terms of their funding, operations, and identities over the past forty years. Yet they now face major experiments in privatization. Public dollars increasingly can be spent purchasing private schooling, and private companies have entered the business of managing public schools. Public dollars flow through contracts with private corporations, nonprofit organizations, and religious groups to run public schools and prisons and to deliver welfare-to-work and other social services. What happens to the scope and content of public values when public commitments proceed through private agents? This question demands historical context. The particular trends in privatization are new, and yet they highlight the longstanding and complex interactions between public and private social provision in this country. A variety of for-profit and nonprofit organizations provide education, health care, day care, elderly care, and other services through public subsidies. This Article seeks to avoid the partisan and polarized debates over privatization by examining its potential for both good and disturbing effects against the backdrop of historical practices, evolving public norms, and vital public accountability. Part of the Symposium: Public Values in an Era of Privatization.
Martha Minow, Fragments or Ties? The Defense of Difference, in The Fractious Nation? Unity and Division in Contemporary American Life 67 (Jonathan Rieder & Stephen Steinlight eds., 2003).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Public Policy
,
Law & Political Theory
Type: Book
Martha L. Minow, Partners, Not Rivals: Privatization and the Public Good (Beacon Press 2002).
Categories:
Government & Politics
,
Health Care
,
Family Law
,
Legal Profession
Sub-Categories:
Education Law
,
Politics & Political Theory
,
Health Law & Policy
,
Legal Services
Type: Book
Abstract
What happens when private companies, nonprofit agencies, and religious groups manage what government used to-in education, criminal justice, legal services, and welfare programs? In this important book, renowned legal scholar Martha Minow takes on this astonishingly unexamined change in our public life and shows how to guard against the dangers of privatization to preserve our basic freedoms.
Martha Minow, Breaking the Cycles of Hatred: Memory, Law and Repair (Nancy Rosenblum ed., Princeton Univ. Press 2002).
Categories:
Criminal Law & Procedure
,
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Criminal Justice & Law Enforcement
,
Dispute Resolution
,
Law & Public Policy
,
Law & Social Change
,
Legal History
Type: Book
Abstract
Violence so often begets violence. Victims respond with revenge only to inspire seemingly endless cycles of retaliation. Conflicts between nations, between ethnic groups, between strangers, and between family members differ in so many ways and yet often share this dynamic. In this powerful and timely book Martha Minow and others ask: What explains these cycles and what can break them? What lessons can we draw from one form of violence that might be relevant to other forms? Can legal responses to violence provide accountability but avoid escalating vengeance? If so, what kinds of legal institutions and practices can make a difference? What kinds risk failure? Breaking the Cycles of Hatred represents a unique blend of political and legal theory, one that focuses on the double-edged role of memory in fueling cycles of hatred and maintaining justice and personal integrity. Its centerpiece comprises three penetrating essays by Minow. She argues that innovative legal institutions and practices, such as truth commissions and civil damage actions against groups that sponsor hate, often work better than more conventional criminal proceedings and sanctions. Minow also calls for more sustained attention to the underlying dynamics of violence, the connections between intergroup and intrafamily violence, and the wide range of possible responses to violence beyond criminalization. A vibrant set of freestanding responses from experts in political theory, psychology, history, and law examines past and potential avenues for breaking cycles of violence and for deepening our capacity to avoid becoming what we hate. The topics include hate crimes and hate-crimes legislation, child sexual abuse and the statute of limitations, and the American kidnapping and internment of Japanese Latin Americans during World War II. Commissioned by Nancy Rosenblum, the essays are by Ross E. Cheit, Marc Galanter, Fredrick C. Harris, Judith Lewis Herman, Carey Jaros, Frederick M. Lawrence, Austin Sarat, Ayelet Shachar, Eric K. Yamamoto, and Iris Marion Young. Introduced and with commentaries edited by Nancy Rosenblum.
Martha Minow, Education for Co-Existence, 44 Ariz. L. Rev. 1 (2002).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Dispute Resolution
,
Mediation
,
Human Rights Law
Type: Article
Abstract
Presented as the 22nd Annual Isaac Marks Memorial Lecture ("Educating Youth After Trauma and Intergroup Violence") at the University of Arizona James E. Rogers College of Law (2002). A condensed version is reprinted in: Imagine Coexistence: Restoring Humanity After Violent Ethnic Conflict (Antonia Chayes & Martha Minow eds., Jossey-Bass 2003) at p. 213.
Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies (Richard A. Shweder, Martha Minow & Hazel R. Markus eds., Russell Sage Found. 2002).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Gender & Sexuality
,
Race & Ethnicity
,
Religious Rights
,
Civil Rights
,
Feminist Legal Theory
,
Religion & Law
,
Law & Behavioral Sciences
,
Comparative Law