by Susan D. Carle, Professor of Law, American University Washington College of Law
As the nation heads towards the 50th anniversary of the Civil Rights Act of 1964, the time is ripe for revisiting the origins of the social movement that gave this important legislation its birth. We commonly think of the federal civil rights legislation of the 1960s, including both the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as a product of a social movement that began just a few decades before. In fact, however, both the ideas for new national civil rights legislation to enforce the U.S. Constitution’s dictates of citizenship equality, and the activism that propelled those ideas into law, have far older origins.
Defining the Struggle: National Organizing for Racial Justice, 1880-1915, uncovers the almost forgotten “prehistory” of national organizing to promote racial citizenship equality. The book traces this history’s basis in the activism of lawyers and other civil rights leaders of the late 19th and first years of the 20th century. Through organizations rarely remembered today, such as the National Afro American League, the National Afro American Council, the Niagara Movement and others, early national leaders and activists began to experiment with a panoply of law-related strategies for advancing the equality principles embedded in the nation’s constitutional texts. These activists deeply believed in these fundamental equality principles, but they just as deeply distrusted the bureaucrats charged with enforcing law. Put otherwise, they were not naive “legal liberals” who believed the courts would enforce racial equality principles simply because they were petitioned to do. Early civil rights lawyers understood that the struggle would be a political one, and they were pessimistic about the advances that could be made without gaining more political power. At the same time, they believed that the courts were one forum in which the battle for racial equality should be fought, if only by exposing the nation’s hypocrisy on racial equality to the world. Even recognizing the great odds against them, this early generation of legal activists was willing to take on the challenge of using principles of constitutional law to challenge the unjust application of law.
by Kara Hartzler, Attorney, Federal Defenders of San Diego, Inc.; Member, Board of Directors, ACS San Diego Lawyer Chapter; Recipient of the 2013 ACS David Carliner Public Interest Award
When I applied for the David Carliner Public Interest Award last year, I didn’t do it because I had a stunning track record of court victories, a list of successful published decisions, or a résumé chock-full of wins. I did it because I am a giant loser.
In my work as a lawyer at a non-profit immigration rights organization in Arizona, losing was the name of the game. The vast majority of our clients had no way to fight their cases and were merely biding their time before an immigration judge would order them deported. Even the ones who did have a way to fight their cases were usually greeted by an insurmountable trifecta of bad precedent, hostile judges and an agency appellate body with a not-so-subtle agenda. I lost case after case and quickly learned to advise my clients of two things: the law as it was on the books versus the law as it would be applied to them. On any given day, the best I could hope for was a batting average that was a fraction as good as the worst major league baseball player.
And in my current job as an appellate attorney for the Federal Defenders of San Diego, Inc., my win/loss ratio has actually declined, if such a thing is possible. Despite practicing in front of the Ninth Circuit—a court derided by conservatives as a liberal bastion of judicial activism—I have yet to win a single criminal case. It’s a really good thing I went for a JD rather than an MBA because any CEO worth his salt would have tossed me out on the street long ago.
But somehow that didn’t keep me from being awarded the 2013 ACS David Carliner Public Interest Award. Here’s why: the award wasn’t created for winners. By its nature, progressive social change comes very slowly and is fought like hell by those who oppose it. And those who fight like hell to oppose change are not even as effective in defeating it as those who are indifferent to it—those who refuse to consider a new interpretation of the law simply because they’ve never heard of it before.
Significant reforms are not far off for the NYPD’s stop-and-frisk program, but you might not know that from headlines of late. Most press has focused on “l’affaire Scheindlin,” but the newspapers have buried the lead: The present and future status of the right of New Yorkers to be free from unconstitutional stops and seizures.
The same cannot be said for the current stop-and-frisk regime. The Second Circuit’s order denying vacatur explicitly contemplates the possibility of an “application to us for a return of the cases to the District Court for the purpose of exploring a resolution,” and every indication is that the case is headed for such a resolution in the New Year. Practically, this will mean that the plaintiffs in Floyd (stop-and-frisk writ large), Ligon (concerning practices in and around “Clean Halls” buildings) and Davis (concerning practices in and around public housing) will seek to reach consensus with the City on needed reforms.
by David M. Brodsky, principal of Brodsky ADR LLC, and Chair of the ACS Board of Directors.
As new Board chair, and on behalf of the ACS Board, staff, and extended family, I want to bid a fond farewell to retiring Board members Jay Eisenhofer, Faith Gay, Ted Shaw, and Steve Susman, each a legal legend and significant contributor to ACS's growth and impact, and each a lifelong member of the ACS family.
Jay Eisenhofer joined the ACS Board in 2009 and is the co-founder of one of the most successful law firms in the country, regularly representing major pension and investment funds and others in shareholder class and derivative litigation for the protection of shareholders. Jay is consistently ranked as one of the leading securities and corporate governance litigators in the country. On a personal level, Jay has been a generous and committed supporter of ACS, as well as numerous other organizations. Jay chaired the Judicial Nominations Task Force and helped make it a vibrant and effective player in the efforts to counter the obstructionism of judicial nominations and educate the public about the need for filling longstanding judicial vacancies. We will truly miss Jay's always practical advice and his enormous energy but we know we aren't losing his relationship with ACS, as we are very pleased to have invited him to join the Board of Advisors.
Faith Gay joined the ACS Board in 2006 and is Co-Chair of the National Trial Practice Group at Quinn Emanuel Urquhart & Sullivan, LLP. Over her 25-plus years as a litigator, she has been repeatedly recognized as one of the leading trial, appellate and white collar lawyers in the United States. Her practice is divided between complex civil litigation and corporate governance/white collar matters. She has also devoted significant time and energy to public interest litigation, such as her successful defense of a constitutional amendment establishing a state minimum wage before the Florida Supreme Court, as well as immigration and housing matters on a pro bono basis. She played an equally important role on the ACS Board and, especially, our Annual Conventions, devoting time and her enormous creative energy to making each of them a memorable event. We will miss her ideas and her energy but are grateful that she has agreed to join our Board of Advisors.
Editor’s Note: On Tuesday, November 19, ACS held a panel discussion on constitutional protections of privacy in a time of rapid technological innovation and increasing surveillance, featuring Dahlia Lithwick of Slate, Chris Calabrese of the ACLU, Stephen Vladeck of American University Washington College of Law and others. You can watch video of the event here.
These days, according to an array of public interest groups, civil liberties appear to be taking a hit from a growing and seemingly unwieldy national security apparatus.
U.S. Director of National Intelligence James Clapper, who misled Congress on domestic surveillance, attempted to quote Casablanca at a recent hearing about surveillance abroad. “My God, there’s gambling going on here!” he joked, mocking the umbrage of Senate Intelligence Committee who are regularly offered closed-door briefings on the government’s mass surveillance programs, even if they don’t always attend.
Potential harms to privacy do not end there. For example, students of all ages are being subjected to what the headmaster of Phillips Academy calls “National Security Agency-style surveillance.” Large corporations are accepting handouts from the government in exchange for turning over sensitive information. And even journalists, historically in the vanguard of free speech fights, are suggesting tools like anonymity are “a big mistake.”