From: akbloom@aplcen.apl.jhu.edu (Keith Bloom)
Subject: Re: Stare Decisis
Organization: The Johns Hopkins University
	<1992Jul29.115523.21815@eff.org> 
	<1992Jul30.055020.24405@aplcen.apl.jhu.edu> 
	<1992Jul30.101329.10256@eff.org>
Date: Fri, 31 Jul 92 04:41:02 GMT


mnemonic@eff.org (Mike Godwin) writes:

>Especially since Ted Frank adduced that handy information about what
>Shepard's Citations says about Plessy.

My reply to Mr. Frank may not have gone out yet.  This system sends
out news articles about once a day, in the early a.m.  That and my
schedule make it difficult to carry out active discussions.

Anyway, Mr. Frank said:

      FWIW, the people who decide this stuff for a living, Shepherd's
      Citations, declared that Plessy wasn't overruled by Brown until
      about three or four decades later.

Now, as little sense as that sentence makes, the statement "Plessy
wasn't overruled by Brown until about three or four decades later"
*does* imply that Plessy was overruled by Brown.  I won't speculate
about what the sentence *really* means.  If Mr. Frank wishes to say
that there's no little 'o' next to 347 US 483 in the Shepard's
Citations for 163 US 537, I'm willing to take his word for it.

>>Sure it is.  *All* segregated public school systems which provide
>>equal educational opportunities to black and white students are
>>permissible.
....
>>But since the fact of segregation itself deprives black
>>students of equal opportunity, there are no such school systems.

>Right. I agree about this.

Good.  Vacuously true it is, then.  But if the Court in Plessy had
made the same finding of fact that the Court in Brown did, it would
never have promulgated the separate but equal doctrine.  Because a
judge would never create a doctrine which he knows will apply to zero
cases.  Only a mathematician would do something like that.  Agreed?

>>The Court did not say that the
>>doctrine of Plessy v. Ferguson did not apply in Brown because the
>>facts were different.

>Actually, that's just what it said. Hence Footnote 11.

Sorry, I wasn't being clear.  In each of the six cases involving
educational segregation which were cited in Brown (most of them
involving graduate-level education), the Court distinguished the facts
*in that individual case* from the circumstances to which the Plessy
doctrine would apply.  It said, in this particular situation, the
separate facilities are not equal, and therefore the segregation must
be overturned.  That's not what the Court did in Brown.  It didn't say
that the facts in *this* case are different, and that the Topeka,
Kansas public schools did not have equal facilities.  It said that the
fact of segregation itself deprives the student of equal education.
This was a blanket finding that the facts of *all* education cases, not
just the present one, are different from those to which Plessy could
apply.

[ On Sweatt v. Painter ]
>>Another state could have argued that *it's*
>>separate black and white law schools were equal, even if those of
>>Texas weren't.

>Post-Sweatt, it would have lost. 

Practically speaking, you're right.  The criteria the Court used to
decide Sweatt were such that it's extremely doubtful that any public
law school in the country could have met them.  Besides, by that time
the Court just plain wasn't going to rule in favor of segregation on
the graduate school level, no matter what.

>The arguments in Sweatt v. Painter have
>to do with the fact that the Court recognized that a separate-but-equal
>law school deprived black students of a particular benefit provided by the
>primary law school--the benefit of having the other law students around to
>discuss cases and study law together. 

I think that requirement might conceivably be met.  After all, nobody
argued that an all-black private law school like Howard deprived
students of this benefit.  A much more difficult problem was the
Court's finding that segregation denied students the opportunity to
associate with people they would have to deal with in their
professional careers.  Still, some state might have tried to deal with
this requirement in a segregated environment.  It wouldn't have
succeeded, of course.

>Okay, then if legal rules *aren't* identical to factual findings, then a
>change in factual finding doesn't necessarily imply that a rule has been
>overturned, does it?

That depends on the factual finding, of course.  In the Sweatt case, it
didn't, because the Court merely found that the facts *of that case*
were different.  It did so by applying criteria which made it much
easier for plaintiffs to win in future cases of that kind, and much
harder for defendants to defend such cases.  But even after Sweatt,
plaintiffs still had to make out a case of unequal treatment in the
specific circumstances.  Brown was entirely different.  After Brown,
plaintiffs did not have to show unequal treatment.  The mere fact of
segregation was enough.  Plaintiffs would win automatically, unless
defendants were able to rebut a factual finding which had already been
made.  And THAT'S A DIFFERENT RULE.  A rule that says plaintiff will
win *if* he shows that a certain proposition is true is *not* the same
as a rule that says plaintiff will win *unless* *defendant* can show
that a factual finding *already made* is false.  It is simply
*incorrect* to say that the rule for deciding segregation cases after
Brown was the same as the rule before it.  The factual finding in Brown
*did overturn* the rule in Plessy.

>Provided I don't have to hear any more about Santa Claus, thank you.

You stated a counterfactual hypothesis in order to make a point.  I
responded with the point that it is highly significant that the
hypothesis *was counterfactual*.  I did this by using a more extreme
example of a counterfactual hypothesis.  Where I come from, that's
considered fair play.  But I'm sorry if the example rubbed you the
wrong way.  That was certainly not my intention.

>When equity is the remedy, equitable principles are being applied.
>Equity is not just remedies. A court normally applies its equity powers
>and principles when the facts the remedy at law is not adequate. That's
>what the facts in Brown showed.

You still haven't explained how all this supports your arguments.  The
distinction between law and equity is completely arbitrary and exists
only because the common-law courts in fourteenth century England
stopped creating new remedies when they were needed (I don't know
why), and so the Chancery courts had to step in and fill the gap.  Two
separate court systems sprang up with different rules of procedure,
and it was a matter of critical importance which court you filed your
claim in.  (It was a lawyer's paradise -- cf. Jarndyce v. Jarndyce :-)).
But whatever still exists of the distinction (the two court systems have
long since been merged, at least in most U.S. jurisdictions) is simply
a remnant of the stupidities of English legal history.  What it has to
do with the Fourteenth Amendment is something you'll have to explain.
 
>Mapp is not a comparable case. Mapp isn't about interpreting the
>Constitution, but about adopting a judge-made rule to enforce a
>Constitutional right. 

You keep saying this, but every argument you use to show that Brown
did not overrule Plessy applies with equal force to Mapp and Wolf.
Yet few people have any trouble saying that Mapp "overruled" Wolf.
(What does Shepard's have to say about that, Mr. Frank?)

>Now, have you given any thought to why, if Warren and the Court meant
>for Brown to overrule Plessy, they didn't use the word "overrule," which
>they surely knew? Is it your theory that this is just a blunder on their
>part--an unintentional omission?

They didn't use the word in Mapp, either....


Keith
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