This Journal's focus on appellate practice and procedure suggests that it might be appropriate and productive to take a somewhat unusual approach to Brown and its significance. Brown was most important, of course, for its role in the transformation of American race relations. From the point of view of the appellate courts, Brown is significant in another way. Brown was the culmination of a sustained campaign of strategically designed litigation-or so it came to be thought. Lawyers subsequently took the strategic litigation campaign they saw ending in the triumph of Brown as a model for their own causes, and developed strategies to use litigation in the service of a wide range of causes: women's rights, prison reform, abolition of capital punishment, protection of property rights, and the undermining of affirmative action, among others. In each of these campaigns, the lawyers of course sought favorable rulings from appellate courts. But - and this is my primary point - they typically sought favorable rulings of a particular type. In general, the ultimate goal was a simple and easily understood rule, parallel to the rule condemning state laws mandating the separation of children by race. The reason, I argue, is that favorable rulings that take the form of general standards are not nearly as useful to the cause lawyers, who typically have relatively limited resources and cannot afford to litigate the kinds of fact-intensive cases that standards (rather than rules) favorable to them generate.
6 J. App. Prac. & Process 101-111 (2004)
Scholarly Commons Citation
Tushnet, Mark V., "Litigation Campaigns and the Search for Constitutional Rules" (2004). Georgetown Law Faculty Publications and Other Works. Paper 239.