Monday, September 29, 2008

Dudziak on Tushnet on Thurgood Marshall

Mark Tushnet's Thurgood Marshall and the Rule of Law is an essay recently posted on SSRN by yours truly, Mary L. Dudziak, University of Southern California Law School. It appeared in a symposium issue of the Quinnipiac Law Review (2008) on the work of Mark Tushnet. Here's the abstract:
This essay, written for a symposium issue of the Quinnipiac Law Review on the work of Mark Tushnet, takes up Tushnet's writings on Thurgood Marshall. Tushnet's body of scholarship on Marshall includes two books, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991; an edited collection: Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences; and many articles and essays. Tushnet follows Marshall from his early career as a civil rights lawyer through his service on the United States Supreme Court, focusing more than other biographers on Thurgood Marshall as a lawyer, and paying particular attention to Marshall's conception of the rule of law.
The essay explores Marshall's understanding of the rule of law, bringing in the example of Marshall's confrontation with Kenya's first president, Jomo Kenyatta, in 1963, and the tension between Marshall's embrace of Kenya's new leaders, with whom he worked on Kenya's independence constitution, and his concern about their failure to protect the rights of Kenya's Asian minority. In this episode, the rule of law appears as more than fairness and consistent application of legal principles, but also as a form of politics. This ties Marshall's work in Africa in with the conception of law in Tushnet's broader body of work.

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