From: akbloom@aplcen.apl.jhu.edu (Keith Bloom)
Newsgroups: misc.legal
Subject: Re: Stare Decisis
Date: 27 Jul 92 16:39:28 GMT
	<1992Jul26.065148.3755@eff.org> 
	<1992Jul26.161559.2347@aplcen.apl.jhu.edu> 
	<1992Jul26.172151.7681@eff.org>
Organization: The Johns Hopkins University


mnemonic@eff.org (Mike Godwin) writes:

>...Brown v. Board of Education
>certainly *could* have explicitly rejected the notion that, as a matter of
>law, separate could be equal. The Court chose not to do that, preferring
>to ground its decision in a fact-based analysis. This is why Footnote 11
>is so significant, relying as it does on Clark and Myrdal.

I may have misread your previous article.  The question under
discussion is, in what cases has the Supreme Court explicitly
overruled one of its prior holdings on a matter of law.  What I
thought you were saying was that Brown overruled Plessy v. Ferguson,
but on a question of fact, not of law; i.e., that separate but equal
facilities could exist in the field of education.  (Plessy wasn't
about education, but everyone assumed that it applied there as well as
to transportation.)  I said you were being "too picky" because there
was no practical benefit in making the distinction, since most legal
principles are based in one way or another on factual issues.

It appears, though, that you are saying that Brown did not explicitly
overrule Plessy at all.  Note that I only said that it did in the
area of education.  I find your reasons for saying it didn't
unconvincing.  What seems to me significant is that Warren
specifically said that the Plessy doctrine applied to the Brown case,
where it did *not* apply in other cases in which the courts overturned
discrimination.  Therefore, the plaintiffs should have lost under
Plessy.  But the Supreme Court found for the plaintiffs.  How could
that be, if they were not overruling Plessy?  How explicit does the
Court need to be?

That the Court grounded its opinion on sociological analysis is surely
interesting, but I don't believe it refutes the assertion that it was
overruling Plessy v. Ferguson.  I assume that judges are not
mathematicians and are not interested in propositions which are merely
vacuously true.  When Plessy said, in effect, that "separate but equal
is OK", it implied that there *was* such a thing as separate but
equal.  That's the implicit factual basis of Plessy's legal doctrine.
When Chief Justice Warren held that, in the field of education at
least, there was no such thing as separate but equal, he denied the
factual basis of Plessy, and therefore the legitimacy of its legal
doctrine.  Warren essentially said as much, although of course he
didn't put it in those terms.  But he did say that language in Plessy
which implied the existence of separate but equal facilities in
education was "rejected."  To me, that sounds like he's overruling
Plessy.

I don't know why the Court placed so much emphasis of sociological
evidence in Brown v. Board of Education.  Possibly the two books you
mentioned (neither of which I have) explain this.  It's probably
unusual for the Court to cite large amounts of data from the social
sciences in support of its rulings, but it's hardly unique;  didn't
Brandeis use socioeconomic data in his dissents in the economic
regulation cases?

>Right. Brown v. Board of Education specifically raises the issue of
>whether the doctrine of separate but equal, articulated in Plessy, is
>valid.

You say this, and then you say that Brown did not overrule Plessy.
I'm bewildered.  The Court raises the issue, addresses it, and finds
in favor of the plaintiffs, even though the Court admits that the
doctrine requires a ruling against them.  In what sense is this *not*
overruling Plessy?

>>Said, almost in so many words, that Plessy was no longer good law.

>Here I disagree with you. The Court does not say this in Brown. What it
>says is that the facts in Brown make clear that the application of
>separate-but-equal doctrine in school districts leads to unequal treatment
>under the law.

I can only regard this as a distinction without a difference.

>>But legal principles usually 
>>have some kind of factual basis (I hope).

>Well, sure. But who says separate-but-equal doesn't have "some kind of
>factual basis." There are countless instances of separate facilities (the
>washrooms in public buildings, for example) in which separate facilities
>can be considered equal. 

Which is my point.  Separate but equal--which was a legal doctrine-- 
did have a factual basis.  Warren said in Brown that this factual
basis was bogus.  Therefore, the legal doctrine is no longer valid.

>>In Mapp v. Ohio, Justice
>>Clark talked about the "current validity of the *factual* grounds upon
>>which _Wolf_ was based."  (emphasis added).  Should we also throw out
>>Mapp, as not meeting Mr. Starr's requirements?  (What do you say, Mr.
>>Starr?)

>When you say "also," what are you referring to? I don't think anyone's 
>"thrown out" anything. 

By "throw out", I simply meant discard it from the list of cases in
which the Supreme Court explicitly overturned a prior decision.

>In any case, Mapp is not comparable to Brown,
>since Mapp signals the adoption of the exclusionary sanction, which is not
>itself an issue of Constitutional interpretation. (The exclusionary rule
>is not mentioned in the Constitution, whereas "equal protection under the
>laws" is.)

I brought up Mapp based on the assumption that you were claiming that
Brown overruled Plessy, but not on a question of law.  Mapp said that,
based on experience, it was necessary to apply the Weeks doctrine to
the states in order to guarantee Fourth Amendment protections.  Wolf
had said that the Fourth Amendment did apply to the states, but did
not require them to use the exclusionary rule.  Thus, one could claim
that the Court did not overrule Wolf on any question of law, but only
on the factual question of whether the exclusionary rule was necessary
to enforce compliance.  That, to me, is too narrow a distinction to be
useful.


Keith
Newsgroups: misc.legal,soc.men,soc.women,alt.discrimination