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Sunday, 16 October 2005 19:00 |
115 Yale L.J. 1 (2005)
The editors of Volume 1 founded The Yale Law Journal during what they described as a period of "remarkable transformation" and "inexorable change" for both the Yale Law School and the legal profession. One hundred and fourteen years later, the Journal continues to evolve along with the academy and the profession. While full-length scholarly works remain at the center of legal debate, students, professors, and practicing lawyers are increasingly turning to the Internet to read about, and comment on, developments in the law. With this trend in mind, the editors of Volume 115 have launched The Pocket Part ( http://www.thepocketpart.org), an online companion to the Journal. With The Pocket Part, the Journal hopes to combine the strengths of both print and online media, broadening the readership of traditional legal scholarship while enriching the dialogue among the academy, bench, and bar. |
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Michael Sullivan and Daniel J. Solove
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Sunday, 30 November 2003 19:00 |
113 Yale L.J. 687 (2003)
In Part I, we put Posner's account to the pragmatic test by examining its implications. We argue that Posner's pragmatism offers little help when it comes to evaluating and selecting ends, which is crucial for resolving legal and policy disputes. We suggest that this failure results from Posner's attempt to excise pragmatism's theoretical dimension. In Posner's hands, pragmatism stands for hard-nosed "common sense" and "reasonableness," rejecting what he views as pie-in-the-sky abstract theories of reform. But what passes for legal pragmatism in this "revival" and "renaissance" is often a brand of commonplace reasoning that is more complacent than critical. Many neopragmatists are little more than realists who aim to account for current problems descriptively and empirically. Such accounts of pragmatism provide convenient straw men for critics to attack, while at the same time privileging entrenched institutions and the status quo. In contrast, we return to the thought of the classical pragmatists to offer an alternative vision of pragmatism built primarily upon the ideas of John Dewey.29 This account better integrates theory and practice and provides more meaningful guidance about the choice of ends. We contend that although Posner adopts many of the ideas of the classical pragmatists, he diverges in crucial ways that lead him to have internal inconsistencies with his own pragmatic commitments and to end up employing forms of reasoning against which the pragmatists strongly cautioned. Posner finds himself in this position because the pragmatic ideas upon which he founds his theory have far more potent and revolutionary implications than Posner is willing to entertain. Posner begins on the pragmatic path, but he will not commit to it fully, perhaps because pragmatism is anything but banal. When seen in its full colors rather than faded Posnerian pastels, pragmatism is radical. Its ideas unsettle many of the institutions and "realities" that Posner takes as given.
In Part II, we turn to Posner's theory of democracy. Surprisingly, in light of Posner's insistence that pragmatism has no political valence, Posner attempts to use pragmatism to reach his conclusion that Concept 2 democracy is normatively superior to Concept 1 democracy, a conclusion with deep political valences. We demonstrate that Posner's justification for Concept 2 democracy is not pragmatic, for it not only has inconsistencies with Posner's own version of pragmatism but also radically diverges from some of the most fundamental notions of the classical pragmatists. Having built his theory on pragmatic ideas, Posner must deal with their implications, which we argue undermine his theory of democracy. Additionally, we contend that pragmatism does have a political valence--one that links it more closely with Concept 1 democracy than Concept 2. |
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Monika L. Moore
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Thursday, 31 October 2002 19:00 |
112 Yale L.J. 311 (2002)
When the federal courts began supervising the desegregation of public schools in the latter half of the twentieth century, no one intended this regulation to continue for an indefinite period of time. The expectation was that the courts would return schools to local control after the districts had complied with their federal desegregation orders. In the year 2001, however, over 400 school districts were still under federal court supervision, making the federal bench the largest school district in the country. Since many of these school districts have operated under court supervision for more than three decades, the reason that they are still under court supervision is not that they have failed to desegregate. Instead, at least two plausible explanations demonstrate why so many districts remain under desegregation orders. One explanation results from the unclear standard the Supreme Court has developed to define when courts should release school districts from supervision. The other explanation arises from the process school systems must undergo to regain local control.
First, the Supreme Court has not provided the lower courts with any concrete standards to help them decide when they should release school districts from supervision. The Court has only vaguely explained that lower courts should remove school districts from court orders when the districts have attained "unitary status." It has then listed six educational areas, commonly known as the Green factors, from which school districts must eliminate all vestiges of the prior dual system before the districts can return to local control. The Court has not offered any more guidance on this question. Therefore, lower courts have developed their own measures, and this fact explains why some school districts are still under court control, even though they have achieved a higher level of desegregation than other districts that courts have already released from supervision.
Second, the process that the courts have developed to determine when to release districts from their desegregation orders has made it possible for school systems to remain under supervision indefinitely. Typically when a school district first came under supervision, the court required the district to develop an acceptable desegregation plan. In many cases, if the district did not design a satisfactory plan, the court developed its own plan. The court then removed the case from its active docket and did not continue to monitor the district's progress unless an outside party brought a problem to the court's attention. Consequently, if no party brought any complaints to the court, a school district could remain under supervision years after it had achieved its desegregation goals.
Theoretically, under this process, a school system should not remain under supervision after it has fulfilled its desegregation obligations because even if no other party reactivates the litigation, the school system itself has the power to request that the court release it from control. However, school systems have several motives to want to remain under court orders indefinitely, and so the potential exists for a system to remain under supervision many years after it has fully desegregated its schools. Aside from the fact that this prolonged supervision violates the principle that schools should be under local control, it also often works to the detriment of students in the system.
Consequently, this Note argues that the Supreme Court should have more clearly defined the term "unitary status." Since the Court offered little clarification on this point, several commentators have attempted to suggest more quantifiable methods to assess when a system has achieved unitary status. This Note analyzes these proposals and explains why these suggestions are all problematic.
This Note then offers a new proposal for how the Court could have defined unitary status. Unlike the proposals of some scholars that attempt to offer substantive definitions of some of the Green factors, this proposal focuses on providing procedural clarification. This proposal, called the "twelve-year plan," asserts that a court should end supervision of a system under a desegregation order twelve years after it has removed the case from its active docket if the district has complied with the order while under supervision. During this twelve-year period, the court would more closely monitor the school system's compliance by requiring annual reports from the system detailing its progress in remedying the vestiges of the prior dual system.
The selection of the twelve-year period of court supervision is not arbitrary. Instead, it stems from the fact that a school system has substantially harmed all students who attended segregated schools under the prior dual regime. Consequently, the twelve-year plan requires a school to remain under court supervision until all of the students who had standing in the desegregation suit have a chance to graduate.
The twelve-year plan is a superior alternative to the status quo because it addresses the four main problems that stem from the current system. First, inflexible desegregation orders restrict the ability of districts to adopt creative policies to address their most current and pressing needs. Second, school districts must spend thousands of dollars in litigation fees to have the courts release them from supervision. Third, parents have no clear expectation as to when the courts will remove desegregation orders and their children will have to switch schools. Finally, the longer that districts are under desegregation orders, the more difficult it becomes to ensure that the districts are only addressing de jure segregation and have not adopted policies that focus on de facto segregation.
In response to this first concern, the twelve-year plan recognizes that school districts need the freedom to implement policies to address changing needs instead of being hindered by requirements that they meet rigid racial ratios long after the district has addressed, to the extent possible, the evils caused by de jure segregation. The twelve-year plan combats the second problem concerning the high costs of litigation in several ways. It ensures that courts are more involved in monitoring a school system's progress and in preventing noncompliance, and it also provides a concrete time frame for when supervision should end. These attributes of the plan would prevent the need for the costly litigation that plagues the current system. Similarly, the twelve-year plan solves the problem of parental expectations, because it gives individuals a concrete idea of when their schools' assignment plans will change. Finally, the limited timespan recommended by the twelve-year plan would minimize the extent to which school districts under desegregation orders feel that they are required to address imbalances that result from de facto segregation.
The problems that result from the Court's vague unitary status standards and the benefits the twelve-year plan would create become evident through a case study of the Charlotte-Mecklenburg School System (CMS). In 1971, CMS became the first school system to use busing to desegregate its schools when the Supreme Court approved the use of this desegregation method in Swann v. Charlotte-Mecklenburg Board of Education. The courts then failed to monitor CMS's desegregation progress any further until a group of parents asked a federal judge to end the court order in 1997. The school system waged an active defense against the plaintiffs' suit, claiming that it had failed to comply with the court order. After years of litigation, a federal court of appeals finally concluded that CMS had obtained unitary status.
An examination of the CMS litigation clearly illustrates the four problems that result when school systems remain under court supervision for too long. Furthermore, a hypothetical analysis of how circumstances would have been different for CMS if the court had facilitated the system's desegregation through the twelve-year plan illustrates the merits of this proposal. Finally, an assessment of the steps CMS has taken since the court removed it from supervision helps dispel some of the main concerns that might surround the use of the twelve-year plan.
Part II of this Note begins by providing a synopsis of the limited guidance that the Supreme Court has given to lower courts concerning how to determine whether a school has achieved unitary status. It then addresses various measures lower courts have developed in light of this ambiguous guidance. Part III analyzes the few suggestions that scholars have offered to quantify the concept of unitary status and articulates the flaws in these proposals. It also introduces the twelve-year plan, this author's suggestion for how unitary status could have been more clearly defined. This Part identifies the plan's strengths and addresses potential criticisms that might arise concerning the feasibility of the proposal. Part IV explains why a clearer definition of unitary status is necessary by detailing the history of CMS's actions to comply with its desegregation order. It applies the twelve-year plan to the facts of the CMS litigation, and it demonstrates how this plan could have prevented the problems that the school system's parents and students faced as a result of the courts having allowed CMS to remain under the court order for too long. Part V uses the CMS desegregation experience both to identify other concerns the twelve-year plan may generate and to demonstrate why these concerns are unfounded. Part VI concludes. |
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