Rights Lawyer Essentialism and the Next Generation of Rights Critics
2013; University of Michigan Law School; Volume: 111; Issue: 6 Linguagem: Inglês
ISSN
1939-8557
Autores Tópico(s)Legal Systems and Judicial Processes
ResumoRIGHTS LAWYER ESSENTIALISM AND THE NEXT GENERATION OF RIGHTS CRITICS Rights Gone Wrong: How Law Corrupts the Struggle for Equality. By Richard Thompson Ford. New York: Farrar, Straus and Giroux. 2011. Pp. 272. $27.INTRODUCTIONRichard Thompson Ford1 does not care much for the current state of civil rights. In his provocative new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality, Ford lends an original, if often misdirected, voice to the chorus of contemporary critics of the American legal regime of rights.2 Situating himself among generation critics (p. 259), Ford lays out a comprehensive indictment of current approaches to civil litigation as well as civil activism. His work is both intriguing and provocative, and it raises a number of issues that are surely worth serious consideration and discussion. As I argue in this Review, however, while his goals are laudable, his project is ultimately unsuccessful.Ford's critiques of the contemporary civil system can be broken down into three distinct, but related, themes.3 His first charge is that civil are an anachronism, a once powerful tool to address first-generation civil issues, but now outdated and not up to the task of tackling contemporary social problems. While some forms of racial and gender subordination remain serious issues, he argues that many of the fundamental battles for equality have been largely won. Ford claims that the civil system today has been captured, and to a large extent exploited, by self-indulgent individuals seeking to invoke the law (or in the case of activists, the moral high ground of civil rights) not to achieve justice, but to pursue their idiosyncratic, opportunistic desires for personal gain.4 On this account, civil have outlived their usefulness and accordingly need to be completely reconceived.The second central theme of Ford's critique is that the civil regime lacks nuance. Its mechanisms are formalistic and rigid and are therefore insufficiently adaptable to account for the complex, entrenched issues that face today's society. Formal antidiscrimination rules not only forbid base forms of discrimination founded on racist and sexist attitudes, but also are routinely invoked to attack more benign forms of race and sex classifications, from the serious (affirmative action) to the banal (ladies' nights at bars).5 But that same system of has not proved adaptable to deal with the more entrenched and unresolved issues that continue to challenge marginalized communities, such as residential segregation and lack of economic opportunity. Similarly, he attacks the current structure of remedies as being too rigid and inflexible to address the subtle nature of contemporary civil dilemmas.6 Instead, Ford offers a new vision for civil that relies on an administrative enforcement scheme that he argues will be both more adaptable and more effective in promoting equality.Ford's third important theme is a common one among critics-he lays much of the blame for the problems of the civil system at the feet of the lawyers who populate it. Though the book is a broadside attack on that system, it implicitly-and sometimes quite explicitly-argues that contemporary lawyers are responsible for many of the system's abuses. Like the clients they represent, civil lawyers deserve much of the blame for twisting and perverting the legacy of civil rights (p. 11). Among the charges he makes are that lawyer-driven litigation accomplishes little (and may even be more harmful than helpful), that the role of civil litigation in achieving equality has been overstated, and that lawyers have created unjustified hope and reliance on civil law at the expense of more effective solutions to contemporary social problems.7In this Review, I critique Ford's approach and analysis and argue that his work is unsuccessful in sustaining any of these major themes. …
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