Tuesday, November 24, 2009

Schmidt on The Debate over Law's Capacity and the Making of Brown v. Board of Education

'Freedom Comes Only from the Law': The Debate Over Law’s Capacity and the Making of Brown v. Board of Education has just been posted by Christopher W. Schmidt, Chicago-Kent College of Law and American Bar Foundation. It appeared in the Utah Law Review (2008). Here's the abstract:
From the late nineteenth into the mid-twentieth century, civil rights reformers fought, with little success, against the argument that law was powerless to change prejudicial attitudes and customs. It was widely assumed during the Jim Crow era that forcing the principle of racial equality on resistant southern whites might turn desegregation into yet another failed experiment in social reform by legal fiat — another Reconstruction or Prohibition. In the 1940s and 1950s, these assumptions began to give way because of the efforts of liberal scholars and activists who made the case that legal reform could be particularly effective at combating prejudice, and thereby improving race relations. Yet this struggle to overcome prevalent skepticism toward law’s capacity has been largely lost in historical scholarship. In this article I examine a generation of social scientists, historians, lawyers, and activists who made the case that race relations were more malleable than had been previously assumed and that properly conceived laws could affect not only outward behavior, but personal attitudes. Nowhere were these arguments more consequential than in the NAACP’s litigation campaign against segregated education. They provided an effective response to the fears of Supreme Court justices that a desegregation ruling would be ignored or, worse, rejected. I argue that the triumph of the idea that legal reform could reshape race relations was a critical factor in making possible the emergence of civil rights as a viable national issue in the early post-World War II period — and the great civil rights achievement of that era, Brown v. Board of Education.

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