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TomaLivshizFirstPaper 6 - 30 May 2012 - Main.TomaLivshiz
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How I Learned to Stop Worry and Accept that Law is a Weak Form of Social Control
-- By TomaLivshiz - 16 Feb 2012 | |
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< | “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation…If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same place.” Justice Brown’s ignominious opinion in Plessy v. Ferguson — from which our society has thankfully retreated—does yield an important question. Do courts make change or do they reflect it? They probably do both--how do we, as future lawyers, use that? | >
> | “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation…If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same place.” Justice Brown’s ignominious opinion in Plessy v. Ferguson — from which our society has thankfully retreated—does yield an important question. Do courts make change or do they reflect it? If we believe that they do both--how do we, as future lawyers, use that observation? | | | When Eben first asserted that “the law is a weak form of social control,” I was defensive. Maybe you were too. Maybe you wrote your personal statement promising you would use the law to be an agent of change, as a tool for social justice, or a similarly synonymous phrase. Maybe those promises now seem trite. While I resisted his idea at first, I realized that whether true or not, the statement can help us to strategize about how we will achieve our goals after law school, rather than undermine them altogether. This paper will examine how the iconic case Brown v. Board of Education, demonstrates how law might be a weak form of social control but might still be useful in achieving social change. | | | To claim that Brown was entirely impotent in bringing about social progress would be needlessly iconoclastic. It is a landmark decision; it affirmed the path used by seekers of change, but was neither a starting point nor an end – it was a guidepost. Thus, while the social transformation subsequent to Brown has been profound, it is has also been slow, indirect and is ongoing. Gerald Rosenberg, a political scientist who examined segregation statistics in the South concluded that “for the ten years after Brown, virtually nothing happened.” Segregated school districts maintained the status quo through disingenuous desegregation plans – plans as stillborn as they were intended to be. It would be at least twenty years of litigation, political pressure, and activism to bring about the transformation contemplated by Brown, demonstrating that indeed the law is a weak form of social control. | |
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< | Maybe, but that wasn't
what I meant, as I hope we eventually established. What followed
Brown II was called "massive resistance" for a reason; the federal
troops that Eisenhower sent to Little Rock after Orville Faubus
called out the National Guard to prevent integration were soldiers,
not lawyers. | | | Brown and Other Forces of Social Control
Perhaps the decision’s attenuated effects are best explained by an examination of the types of forces it unleashed. Though lacking the capacity of social control in and of itself, Brown was unquestionably a force of physical control—a force which has been historically validated as powerful. |
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