Academic journal article Vanderbilt Law Review

Brown, the Civil Rights Movement, and the Silent Litigation Revolution

Academic journal article Vanderbilt Law Review

Brown, the Civil Rights Movement, and the Silent Litigation Revolution

Article excerpt

Brown v. Board of Education had two collateral effects on the legal profession. First, it created a new set of professional heroes-plaintiffs' lawyers pursuing social reform through litigation. Second, it began the gradual deregulation of the bar, particularly the plaintiffs' bar. Both changes reached well beyond the original civil rights arena, and both continue to shape the legal profession and the economics of civil litigation.

I. INTRODUCTION

One doubts that Robert Carter, Thurgood Marshall, Spottswood Robinson, Jack Greenberg and the rest of the legal team that argued Brown v. Board of Education1 spent much time thinking about mass torts. Nonetheless, it is entirely appropriate that a commemoration of their achievements include not only that topic but also international human rights and health care, as well as the more expected ones of education and social welfare. Brown was part of a revolution, and revolutions often have collateral effects as important as their immediate consequences. The civil rights movement followed the same pattern.

As an immediate consequence, that movement brought us school desegregation. Follow-on effects included desegregation of public facilities. These were important milestones in U.S. society. They achieved specific changes, but they also made possible the second civil rights revolution-the legislative actions that have, in the last four decades, transformed U.S. society. Beyond race and civil rights, Brown created several ripples, two of which provide the focus for this Essay.

First, Brown and the civil rights litigation movement helped create a renewed belief, not just in the law, but more specifically in litigation as a noble calling and as an avenue for social change. That belief lies open to challenge, and it can leave students and lawyers frustrated at the distance between the aspirations that brought them to law school and the world of practice as they perceive it. But whether or not it is well-founded, this belief, with roots traceable to Brown and civil rights litigation, has endured for several generations. Thus, Brown reshaped the aspirations of lawyers in ways that are still important.

Second, Brown constituted an important step in the restructuring of the U.S. bar. One of Brown's progeny, NAACP v. Button,2 marked a first step in the relaxation of bans on solicitation and the marketing of lawyers. In the wake of Button came greater changes. Collectively those changes remade the world of practice, particularly on the plaintiffs' side of the bar. We now have political candidates who regularly campaign for or against the "trial lawyers," by which they mean the plaintiffs' bar.3 To put this in perspective, it is unthinkable that any national political candidate in 1954 would have even thought it plausible to have a position on the plaintiffs' bar. While Brown did not create this world, it constituted a very powerful symbol of litigation as a transformative force, and the power of that image helps explain the fact that the plaintiffs' bar regularly depicts itself as the defender of constitutional rights. Brown and its sequels made that slogan both plausible and attractive. It gave to the plaintiffs' bar, which was starting to reshape its finances and practice setting, an image that involved more than vehicular accidents: plaintiffs represented by this bar were, like the plaintiffs in Brown, vindicating rights suppressed by the defendants.

II. BROWN AND THE CULTURE OF LAWYERS

Brown gave us a model for social change through litigation, a model in which civil litigators of sufficient dedication and creativity could bring about deep, important social changes. That belief itself marked a new vision of legal change.

Although several earlier generations of crusaders had sought social change, Brown's successful use of litigation as an agent of social change marked a departure. In the previous century, abolitionists had tried to use the law to free slaves, but their struggle used legislation and direct action. …

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