1866 Civil Rights Act--two cheers for academic questions

[michael curtis]

Eugene is right.  If academics cannot disucss academic questions, who can? I 
recall a con law seminar at the U of Chicago taught by Herbert Storing--a 
fine teacher though I did not agree with his point of view on many things. 
When a student would object--"that is just an academic question--" Storing 
would answer--"what better place?"

Michael Curtis
----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Friday, June 08, 2007 7:30 PM
Subject: RE: 1866 Civil Rights Act


> Surely there's nothing odd about academics on an academic list
> discussing any academic question.  Whether the Court got this subject
> right strikes me as interesting for many reasons (including the one
> David mentions), even if the legal rule is now settled.  O am I missing
> something?
>
> Eugene
>
>> -----Original Message-----
>> From: Michael MASINTER [mailto:masinter at nova.edu]
>> Sent: Friday, June 08, 2007 4:28 PM
>> To: DavidEBernstein at aol.com
>> Cc: blandsberg at pacific.edu; Volokh, Eugene; CONLAWPROF at lists.ucla.edu
>> Subject: Re: 1866 Civil Rights Act
>>
>> I am pretty confident that the Court will continue to
>> interpret section
>> 1981 to forbid racial discrimination in private contractual
>> transactions; it will do so because the Civil Rights Act of
>> 1991 codified its application to "nongovernmental
>> discrimination."  For that reason, the question of who had
>> the better of the argument over legislative intent in Jones
>> and Runyon really is academic.  Questions noted by Eugene in
>> a separate thread over section 1981's application to
>> contractual transactions that implicate the first amendment
>> rights of expressive or intimate association seem more likely
>> to be grist for class discussion than for litigation.
>>
>> Michael R. Masinter 3305 College Avenue
>> Professor of Law Fort Lauderdale, FL 33314
>> Nova Southeastern University (954) 262-6151 (voice)
>> Shepard Broad Law Center (954) 262-3835 (fax)
>> masinter at nova.edu Chair, ACLU of Florida
>> Legal Panel
>>
>> On Fri, 8 Jun 2007 DavidEBernstein at aol.com wrote:
>>
>> >
>> > To the extent the scope of the 1866 Civil Rights Act informs our
>> > understanding of the 14th Amendment, it's not at all academic; the
>> > Court could  continue to interpret the Act the way it has on stare
>> > decisis grounds, but  decline to use bad history/logic, if
>> it be such, in interpreting the  Constitution.
>> >
>> > In a message dated 6/8/2007 4:10:54 PM Eastern Daylight Time,
>> > blandsberg at pacific.edu writes:
>> >
>> > This is  a real deja vu discussion.  Similar arguments were made
>> > against Jones v.  Alfred H. Mayer Co.  Then the Court
>> decided Runyon,
>> > which engendered more  such arguments.  The Court
>> reconsidered and followed Runyon in  Patterson.
>> > Each case led law reviews to consume gallons of ink.
>> Since the cases
>> > primarily involve issues of statutory construction, it is
>> unlikely the Court will
>> > overrule them.  So the discussion, while  interesting,
>> seems, well, academic.
>> >
>> >
>> > >>> "Volokh,  Eugene" <VOLOKH at law.ucla.edu> 6/8/2007 11:50 AM >>>
>> > But the  text is (at most, for the private contracts view)
>> ambiguous.
>> > Even today,  "right to X" often just means right to be free from
>> > government (or possibly  private violent) restraint.  For
>> instance, we
>> > enjoy the right to  marry, but it doesn't mean that we can
>> sue people
>> > for refusing to become  our spouses -- it just means the government
>> > can't bar us from marrying, and  (possibly) others can't violently
>> > prevent us  from marrying.
>> >
>> >
>> >
>> >
>> >
>> >
>> > ************************************** See what's free at
>> http://www.aol.com.
>> >
>>
>>
>>
>>
>>
>>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are 
> posted; people can read the Web archives; and list members can (rightly or 
> wrongly) forward the messages to others.
>