October 2004, Volume 90, Issue 6
Black on Brown
by Cass R. Sunstein
90 Va. L. Rev. 1649 (2004)
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The most important and illuminating early writing on Brown v. Board of Education is a nine-page essay by Charles Black. Black memorably shows that segregation was a crucial part of a racial caste system. At the same time, he cuts through legal abstractions that made it difficult to answer the question whether the Court's decision was sufficiently "neutral." At the same time, Black's argument suffers from two serious problems: formalism and institution-blindness. Black writes as if his interpretation of the equal protection clause can be simply read off the clause, and he does not engage the complex institutional problems that were raised by the Court's decision. Nonetheless, the legal culture needs more voices like Black's.
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