LHR 38:3

Now available online is Law and History Review 38:3 (August 2020):

Introduction: Rebecca Scott's History of Public Rights
Amy Chazkel

Discerning a Dignitary Offense: The Concept of Equal “Public Rights” during Reconstruction
Rebecca J. Scott

The Right to Come and Go
Miranda Spieler

Response to Rebecca Scott's “Discerning a Dignitary Offense”
Laura F. Edwards

“I Could Not Come in Unless over their Dead Bodies”: Dignitary Offenses
Thavolia Glymph

Rights, Dignity, and Public Accommodations
Christopher W. Schmidt

Public Rights
Joseph William Singer

--Dan Ernst

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Barzun on MacKinnon

Charles L. Barzun, University of Virginia School of Law, has posted Catharine MacKinnon and the Common Law:

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.

This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

--Dan Ernst

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The Martin Luther King, Jr. National Memorial

Historytoday.com - This Sunday, August 28th, the Martin Luther King, Jr. National Memorial will be inaugurated in Washington DC on the 48th anniversary of the March on Washington for Jobs and Freedom, when King delivered his historic ‘I Have a Dream’ speech. The effort to build the memorial took over 25 years. The story of its creation is complex and marred with controversy.

The Martin Luther King, Jr. National Memorial is situated on the National Mall in Washington DC on the northwest corner of the Tidal Basin. Its address is 1964 Independence Avenue in reference to the 1964 Voting Rights Act, which King played a key role in achieving. It is surrounded by 182 cherry blossom trees which will blossom every April on the anniversary of King’s death.

The design of the monument is inspired by a quote from King’s ‘I Have a Dream’ speech: ‘out of the mountain of despair, a stone of hope’. It consists of a granite boulder, which is split into two stones inscribed with 14 quotes from King’s most famous speeches and sermons. A sculpture of King emerges from the missing piece of the boulder, which is pushed forward and symbolises the ‘stone of hope’.

The idea to build a memorial was first suggested in 1984 by Alpha Phi Alpha, the African-American fraternity of which King was a member. Congress authorised the memorial in 1996, and two years later, a foundation was set up to raise the $120 million (approximately £73 million) necessary for its construction. An international design competition was launched in 1999, which yielded over 900 entries from 52 countries. Submissions were judged by a panel of 11 architecture and fine arts professionals from China, France, Mexico, India and the United States.

The design submitted by ROMA Design Group, an architecture firm based in San Francisco, was eventually selected and the Chinese artist Lei Yixin was chosen to carve the image of Martin Luther King in the ‘stone of hope’. However, the decision caused significant controversy: some argued that a black American artist should have been chosen and Lei Yixin was criticised because his public works include more than a dozen icons of Mao Zedong. In 2008, the US Commission of Fine Arts argued that the style of the colossal statue was too stern and confrontational, and the announcement that the memorial would be carved in Chinese granite rather than American stone met further criticism.

The memorial will be nevertheless be inaugurated this weekend. It is the first on the National Mall to honour a man of peace and a man of colour.

Further information about the memorial is available on the Martin Luther King National Memorial website, including photos of the memorial at various stages during its construction, a virtual tour and information on its design, construction and the events organised to mark the inauguration.

How accurately, however, does the memorial represent the achievements of Martin Luther King? In Martin Luther King’s Half-Forgotten Dream Peter Ling argues that by adulating King for his work in the Civil Rights campaigns we have misrepresented the complexity of those struggles and ignored some of the equally challenging campaigns of his last years.

In Recording the Dream Brian Ward reveals some of King's little-known experiences as a recording artist.

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