Owen M. Fiss

Liberalism Divided: Freedom of Speech and the Many Uses of State Power

Free speech and social structure why the state? silence on the street corner freedom and feminism state activism and state censorship the right kind of neutrality free speech and the prior-restraint doctrine building a free press.

A Way Out: America's Ghettos and the Legacy of Racism

Preface BY JOSHUA COHEN, JEFFERSON DECKER, AND JOEL ROGERS ix PART I: What Should Be Done for Those Who Have Been Left Behind? by OWEN FISS 3 PART II: Down by Law BY RICHARD FORD 47 Communities, Capital, and Conflicts BY TRACEY L. MEARES 51 Better Neighborhoods? BY ROBERT COLES 57 Beyond Moralizing BY J. PHILLIP THOMPSON 60 Creating Options BY JENNIFER HOCHSCHILD 68 Exit and Redevelopment BY GARY ORFIELD 74 Relocation Works BY JAMES E.ROSENBAUM 79 Unlikely Times BY ALEXANDER POLIKOFF 85 Against Social Engineering BY JIM SLEEPER 92 If Baldwin Could Speak BY STEVEN GREGORY 102 PART III: A Task Unfinished BY OWEN FISS 113 Notes on the Contributors 127 Index 129

Troubled beginnings of the modern state, 1888-1910

Part I. The Legacy of Negative Examples: 1. Legitimacy and history 2. The identity of the institution Part II. Class Conflict and the Supreme Court: 3. Debs and the maintenance of public order 4. Pollock - the redistributive function denied Part III. The Response to Progressivism: 5. The Antitrust campaign 6. Labor legislation and the theory of Lochner 7. Rate regulation: the assault on Munn v. Illinois Part IV. The Concept of the Nation: 8. The American empire? 9. Federalism and liberty Part V. Liberty Dishonored: 10. The Chinese cases: citizenship and the claims of procedure 11. The early free speech cases 12. Plessy, alas 13. The end of a tradition?

Qué es el feminismo

Por cierto que no resulta facil encasillar un fenomeno tan distintivo de nuestros dias, en que las confusiones contemporaneas nos hacen debatirnos entre lo moderno y lo posmoderno, lo absoluto y lo relativo, lo certero y lo incierto. Si es que nos interesa el tema, resulta pues oportuno preguntarnos ?que es el feminismo? Owen Fiss ensaya un estudio encaminado a respondernos a traves de un derrotero politico, como debemos entender el feminismo en los anos 90. Para ello cuestiona que principios tan aceptados como el antidiscriminatorio y el igualitarista sean el sustento actual del feminismo; propone en cambio, el principio de antisubordinacion como paradigma teorico de esta corriente, de gran impacto particularmente en los EE.UU. Pero el feminismo no puede sustraerse de las demas disciplinas que lo informan -las que enumeramos lineas arriba-, para centrarse en lo estrictamente juridico. Asi lo entiende el autor y a la vez que lo identifica en la corriente critica del derecho, deja entrever cual puede ser el futuro del feminismo de tal manera que ni lo moral, ni lo social, ni lo intelectual escapan de forma alguna a este concienzudo analisis.

State Activism and State Censorship

Recent political debates prompted by the Supreme Courts flag burning decisions have once more demonstrated the depth of the nations commitment to freedom of speech.1 Although the Courts determination to treat flag burning as an act of political expression, and thus to protect it from state interference, provoked a strong, hostile response from both the President and members of Congress, leading some to call for a constitutional amendment, the campaign to reverse the Court on this issue quickly faded. There was a sense in the body politic that the First Amendment is not simply a technical legal rule, to be amended whenever it produces inconvenient results, but rather an organizing principle of society, central to our self-understanding as a nation and foundational to a vast network of highly cherished social practices and institutions. It can be amended only at the risk of changing the very nature of society. The principle of freedom that the First Amendment embodies is derived from the

The Jurisprudence of Busing

School desegregation decrees have become a familiar part of the contemporary judicial landscape, and yet they remain enmeshed in controversy. These decrees have engendered two types of criticism. One is addressed to the merits and asserts that segregation is not sufficiently harmful to warrant the costs of busing. Another type of criticism, and the subject of this article, is institutional. It focuses on the predicate of decision-the judgment that segregation is sufficiently harmful to warrant the remedial costs; it notes the controversial character of that judgment; and it then asserts that a court should not coerce corrective action whenever its decision rests on such an uncertain basis.

Trebilcock's heresy

Michael Trebilcock is passionately committed to improving the lives of the poor. As part of this project, he has written extensively on the effort to bolster the rule of law in developing countries and to improve the legal institutions found in these countries. Through an analysis of his recent book on this subject, Rule of Law Reform and Development (written with Ron Daniels), this essay examines Trebilcocks method and philosophic orientation and shows how his moral sensibilities have led him to depart from the classic tenets of law and economics and to open new vistas for this branch of legal analysis.

What Should Be Done for Those Who Have Been Left Behind

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Not with Our Tears

He loved to tease me. He knew my heart was pure, but he was amused by the excesses of reason to which I was often drawn. Burke aspired to a workable government. Quixote-like, I wanted something more perfect—a heaven on earth. Burke understood the foolishness of this dream but always tempered his reserve with kindness and made light of our differences. In the summer of 1963, between my first and second years of law school, I worked at the firm of Covington & Burling in Washington. The work was dreadful. I spent my days scanning invoices for “corn syrup unmixed” to see if I could detect a violation of the Robinson-Patman Act. It was very hard for me to keep going, but soon I noticed that all the earlier memoranda in the file had been initialed by Burke, who, having left the firm in 1960 to become the Assistant Attorney General in charge of the Civil Rights Division, was then at the center of the public life of the nation. So I managed to convince myself to persist, because corn syrup unmixed and all that it implied seemed indispensable training for public lawyers. The March on Washington took place in August 1963. I had returned to Harvard shortly before to complete my legal studies, but soon, as the civil rights cause took on greater urgency, I found myself uneasy with the career plans I had formulated. History was being made and I wanted to be a part of it. In early November 1963—after the bombing of the Sixteenth Street Baptist Church in Birmingham, and only weeks before the assassination of President Kennedy—I flew from Boston to Washington with the wild idea of presenting myself to Burke Marshall for a job. I went straight to Burke’s office, and asked the secretary guarding his office if he was available. She asked who I was, I explained, and then she said, looking down to the floor to avoid the obvious awkwardness of the situation, that he was not in at the moment. She referred me to his Second Assistant, St. John Barrett, who was kind enough to give me a job application. I filled it out, and went home. For the next three years, I marked time. I completed my last year at Harvard, clerked, and then in September 1966 began work in earnest at the