1866 Civil Rights Act--two cheers for academic questions

Sat Jun 9 08:14:32 PDT 2007

I did not understand Michael to be criticizing the academic discussion, just 
enriching it by letting us know about a later & important chapter in the 
story.  For those, like me, who were unaware of the 1991 on this point, it 
was important information.  Since I teach Mayer & Harlan's dissent and have 
both in our casebook, this is information I am happy to know about so I can 
mention it.  It adds interesting and important information that students 
should hear after the discussion of Mayer and the discussion Harlan's 
dissent.

Michael Curtis
----- Original Message ----- 
From: "Michael MASINTER" <masinter at nova.edu>
To: "michael curtis" <curtism at bellsouth.net>
Cc: "Volokh, Eugene" <VOLOKH at law.ucla.edu>; <CONLAWPROF at lists.ucla.edu>
Sent: Friday, June 08, 2007 10:23 PM
Subject: Re: 1866 Civil Rights Act--two cheers for academic questions

> 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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>> 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 
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>
>
> 