Faculty Bibliography
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This book considers the ethical basis of fundamental university policies with special emphasis on how issues of community and diversity influence education.
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From the 1930s to the early 1960s civil rights law was made primarily through constitutional litigation. Before Rosa Parks could ignite a Montgomery Bus Boycott, the Supreme Court had to strike down the Alabama law which made segregated bus service required by law; before Martin Luther King could march on Selma to register voters, the Supreme Court had to find unconstitutional the Southern Democratic Party's exclusion of African-Americans; and before the March on Washington and the Civil Rights Act of 1964, the Supreme Court had to strike down the laws allowing for the segregation of public graduate schools, colleges, high schools, and grade schools.
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Mark Tushnet, Contemporary Issues of Race Relations, 24 Rutgers L.J. 699 (1993).
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Mark Tushnet, Thayer's Target: Judicial Review or Democracy?, 88 Nw. U. L. Rev. 9 (1993).
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The tenure of Earl Warren as chief justice of the United States Supreme Court (1953-69) was marked by a series of decisions unique in the history of the Court for the progressive agenda they bespoke. What made the Warren Court special? How can students of history and political science understand the Warren Court as part of constitutional history and politics? To answer such questions, nine well-known legal scholars and historians explore how each justice contributed to the distinctiveness of the Warren Court in Supreme Court history.
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Mark Tushnet, Lawyer Thurgood Marshall, 44 Stan. L. Rev. 1277 (1992).
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The spring squall of 1991 about political correctness on campus has passed, leaving behind a muddy residue in the nation's political rhetoric. Although the squall initially may have seemed to develop from a detached interest in campus developments, it rapidly became clear that the campaign against "political correctness" was this year's version of conservative concern about liberalism in the universities. The timely publication of Dinesh D'Souza's Illiberal Education, and D'Souza's understandable efforts to promote the book's sales by publishing op-ed articles and appearing on news programs, offered a continuing newshook for stories about political correctness. Conservatives took up the attack on political correctness, until it worked its way into President Bush's commencement speech at the University of Michigan. Predictably, the conservative appropriation of the attack on political correctness has obscured more than it has clarified. I intend this essay mostly to lay out precisely what ought to be at issue. Given the conservative domination of the discourse, much of what follows attempts to show how overblown or distorted the conservative characterization of the issue is. I draw upon my experience as an academic in a law school, and therefore focus on some incidents in the literature on political correctness that arose in law schools, although I will also bring in other incidents as appropriate.
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Mark Tushnet, Thurgood Marshall and the Brethren, 80 Geo. L.J. 2109 (1992).
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In analyzing the development of the concept of civil rights since the adoption of the Fourteenth Amendment, two historical accounts seem available. According to the first account, the concept initially encompassed a relatively limited set of rights, associated with the ability of all citizens to engage in the productive activities of the economy and avail themselves of the protection of the legal system. Then the concept gradually expanded to include what had initially been thought of as political rights, such as the right to vote, and then to identify the entire set of rights to equal treatment in all domains of life outside a relatively narrowly-defined private sphere. According to the second account, the concept of civil rights was fuzzy from the outset; although political actors spoke as if they had a clear understanding of distinctions among civil, political, and social rights, close examination of their language shows that the distinctions tended to collapse under slight pressure.
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The judicial role in the construction of the twentieth-century state was decisively structured by the interaction of developments in jurisprudence and by changes in the organization of the regulation of economic activity. Individual judges brought their backgrounds and political predispositions to the task as well, and we will gain a full understanding of the judicial role in structuring the state only by integrating biography, jurisprudence, and political economy. This article examines the work of Justice Thurgood Marshall in constructing the post-New Deal settlement of the relations among people in their capacity as consumers, people in their capacity as workers, and capital. That settlement was expressed in legal forms that departed from the common law doctrines that had for two centuries provided one of the legitimating ideologies of social relations. With the construction of the administrative state came the need to reconstitute not only the legal structures that supported the agencies of government, but also the ideological structures that explained the legitimacy of these innovations. While legal academics articulated carefully thought out defenses of the administrative state, judges provided the citizenry with less developed but, perhaps, more easily understood ideologies. Justice Marshall's work in areas of labor law and civil procedure provides insight into the dimensions of the legal legitimation of the administrative state, while his unique experience as a lawyer and his place within the Court illuminate the importance of biographical factors in a full explanation of the construction of the legal structures of the administrative state.
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The authors relate current arguments to traditional ideas of republicanism and democracy and compare them with those of our Revolution, Civil War, and civil rights and suffrage movements.
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Mark Tushnet, Thurgood Marshall and the Rule of Law, 35 How. L.J. 7 (1991).
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The near conjunction of the bicentennial of the United States Constitution in 1989 and the completion of the European common market in 1992 provides a unique opportunity for the comparative consideration of constitutional federalism. The experience of the United States, with its mature federal system, offers some useful comparisons and insights into the processes that may follow in a further federalization of the European Community. This book, a collection of essays on the constitutional dimension of federalism, is drawn from a conference sponsored by the Delegation of the Commission of the European Communities, and presents substantial analytic material on problems of federalism and integration. The collection begins with a brief foreword by Lord Mackenzie-Stuart, discussing the European community's move toward a national identity. Following are the book's six chapters, written by U.S. and European legal scholars. The first provides important historical insights into the extended time period necessary before the United States could be considered a unified nation. Chapter two examines the complexities of the constitutional law of interregional migration and trade in the United States. A pair of complementary chapters describe how federal systems can respond to, and attempt to preserve, the diverse cultures that are located within an integrated political system. The use of local guarantees of fundamental rights as a counterweight to national norms follows, and a concluding chapter argues against any necessary path of development from economic to political, social, or cultural integration. A bibliographical essay, references, and a complete subject index are also included. This unique collection of essays will be a valuable contribution to courses in comparative law and political science, and an important addition to academic, public, and law libraries.
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Based on a conference held at Osgoode Hall Law School, York University, 24-25 March, 1988.
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This is an important and useful legal primer for Central America activists. It shatters the myths about the "neutrality" of U.S. law and situates legal questions where they really are: in the arena of political struggle. It shows how the law is used both by governing elites who share a consensus on keeping U.S. hegemony in Central America and by grassroots movements that push the limits of law and appeal to its underlying values to work for the self-determination of peoples in the region.
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The bicentennial year provoked a reconsideration of not only the era of the framing but of constitutional history as a whole. At one point I thought that I might participate in that effort by writing a history of the Supreme Court, updating Robert McCloskey's classic book in light of recent scholarship. It turned out that that project was too daunting for me. There was too much material to assimilate before I could feel comfortable in trying to present or even develop a history of the Supreme Court. This essay is, therefore, only a sketch of a revisionist history of the Supreme Court. It is extremely abstract, eliminates a lot of detail and qualifications, and avoids dealing with problems and materials that do not fit the basic pattern I will identify. I must add that the pattern needs so much more elaboration and qualification that I am not entirely comfortable in presenting it in even this sketchy form.
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The NAACP's fight against segregated education--the first public interest litigation campaign--culminated in the 1954 Brown decision. While touching on the general social, political, and economic climate in which the NAACP acted, Mark V. Tushnet emphasizes the internal workings of the organization as revealed in its own documents. He argues that the dedication and the political and legal skills of staff members such as Walter White, Charles Hamilton Houston, and Thurgood Marshall were responsible for the ultimate success of public interest law.
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Mark Tushnet, A Comment on the Critical Method in Legal History, 6 Cardozo L. Rev. 997 (1985).
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Mark Tushnet, Deviant Science in Constitutional Law Scholarship, 59 Tex. L. Rev. 815 (1981).
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Mark Tushnet, Thurgood Marshall as a Lawyer: The Campaign Against School Segregation: 1945-1950, 40 Md. L. Rev. 411(1981).
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Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 Wis. L. Rev. 125.
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Mark Tushnet, A Marxist Analysis of American Law, 1 Marxist Perspective 96 (1978).
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Reviewing A. Leon Higginbotham Jr, In the Matter of Color, Race and the American Legal Process: the Colonial Period (Oxford Univ. Press 1978).
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Mark Tushnet, Perspectives on the Development of American Law: A Critical Review of Friedman's "History of American Law", 1977 Wis. L. Rev. 81 (1977).
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Mark Tushnet, The Constitutional Right to One's Good Name: An Examination of the Scholarship of Mr. Justice Rehnquist, 64 Ky. L.J. 753 (1976).
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Mark Tushnet, Constitutional Limitation of Substantive Criminal Law: An Examination of the Meaning of Mullaney v. Wilbur, 55 B.U. L. Rev. 775 (1975).
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