Rethinking Rights after the Second Reconstruction
Ford, Richard Thompson, The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. HEROIC RIGHTS II. DISCRIMINATION AND DUTY CONCLUSION
Anniversaries are times to celebrate past glories, but they are also times to reassess and consider new directions for the future. The fiftieth anniversary of the Civil Rights Act of 1964 offers an opportunity to do both.
When it comes to outright discrimination and overt prejudice, civil rights have been remarkably successful. But today's most serious social injustices aren't caused by overt bigotry. For instance, in the context of race, they stem from segregation--a legacy of past racism but not by and large the result of ongoing discrimination--and the many disadvantages that follow from living in isolated, economically depressed, and crime-ridden neighborhoods. Civil rights litigation and activism have hardly made a dent in these formidable obstacles. Civil rights are an important part of many social justice struggles, but they are subject to the law of diminishing returns. Rights can offer limited improvements in a narrow set of circumstances, but the effectiveness of the civil rights approach diminishes and its costs increase as they are applied to more novel, complex, and elusive social problems.
In one sense, Title VII of the Civil Rights Act of 1964 is a prime example of such limitations. The Act relies largely on private litigation to enforce its mandate: the basic structure of anti-discrimination law is modeled on tort law. As a consequence, we have come to think of anti-discrimination law as a question of individual justice and private entitlement. The well-understood upside of this approach is that, at least in theory, every individual can assert his or her own rights without waiting for a cumbersome bureaucracy to implement comprehensive policy reform. But the downside of this approach will be familiar to critics of the tort system: private enforcement is chaotic and inefficient from a public policy perspective. Access to justice is limited by constraints of time, familiarity with the legal system, and resources. Incentives to sue are not closely related to the strength of the plaintiffs claim or the culpability or social injuriousness of the defendant. As a result, enforcement of the law is spotty and arbitrary: disappointing to employees who often find pressing their rights in court too hard or too uncertain and frustrating to employers who face a constant risk of unexpected lawsuits.
But Title VII contains the seeds of an antidote to these ailments. The Act is a compromise between tort-like private enforcement and comprehensive regulation of the economy in the public interest. The Equal Employment Opportunity Commission (EEOC) represents the public enforcement side of the Act: an administrative agency with the authority to work out detailed rules for the implementation of a broadly defined congressional scheme. Unfortunately, the terms of the compromise created a defanged EEOC and subsequent amendments only slightly augmented the agency's power: it gained the authority to bring suit directly in 1972, (1) but it still cannot issue binding rules or impose fines or orders directly.
As Bruce Ackerman suggests in his fascinating history of the period, the successes of the civil rights movement owe more to the popular branches of government than to the courts. (2) Ackerman's account of the indispensable role of Congress and of President Johnson and the less-well-known role of President Nixon in advancing civil rights can help reframe our thinking about how the law of equality has worked and can work in the future. By placing the often glamorized role of courts in its proper context and by expanding our conception of constitutional history to include the seemingly mundane and often reviled business of administrative regulation, Ackerman's work calls for a long overdue reassessment of our unfinished struggle for racial justice.
This short essay is a modest attempt to take up that challenge. …