1866 Civil Rights Act--two cheers for academic questions

Michael MASINTER masinter at nova.edu
Fri Jun 8 19:23:56 PDT 2007


Of course I agree with Michael and Eugene; I meant only to reply to
David's suggestion that a quite appropriate academic discussion might
affect whether "the Court could continue to interpret the Act the way it
has on stare decisis grounds...."  My point, modest though it was, was
only that the Court would have no reason even to resort to stare decisis
in deciding today whether the Act applied to private conduct.  That is why
I qualified my comment with "in this sense."


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, michael curtis wrote:

> 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.
> >> >
> >>
> >>
> >>
> >>
> >>
> >>
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> 
> 
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