Document Type

Working Paper

Publication Date

10-18-2002

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; SRPN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Sustainability Research & Policy Network; Social Responsibility of Business eJournals

Abstract

A Remembrance of Things Past examines the continuing effects of both the Warren Courts doctrinal holdings and jurisprudential style in the field of civil rights and civil liberties Although the Warren Courts habit of disregarding legal process values when deciding important civil rights and civil liberties cases has undermined the precedential impact of its decisions over time one would be mistaken to underestimate the continuing effects of the Warren Courts jurisprudential efforts in these fields To a surprising degree Warren Court decisions continue to set the terms of debate in many areas including substantive due process equal protection and state action doctrine Moreover the Supreme Courts recent decision in Brentwood Academy suggests that the Warren Courts jurisprudential innovations might retain relevance even after the Burger and Rehnquist Courts have attempted to restrict the precedential value of Warren Court decisions in a particular field in this case the state action doctrineIn Brentwood Academy the Supreme Court recognized a new entwinement test for state action that requires an open ended fact intensive inquiry into the relationship of the government to an ostensibly private entity In many respects Brentwood Academy represents a return to the Warren Courts expansive approach to defining the outer limits of state action an approach that the Burger and Rehnquist Courts had largely rejected in a series of cases beginning in the mid1970s The essay suggests that Brentwood Academy demonstrates the surprising resilience of the Warren Courts approach to constitutional adjudicationThe essay also serves to introduce three subsequent papers that appear as part of the Frances Lewis Law Centers symposium on The Jurisprudential Legacy of the Warren Court These papers authored by Professor Lillian BeVier John O Calmore and Garry Peller vibrantly illustrate the continuing importance of the Warren Courts legacy in the field of civil rights and civil liberties Although these distinguished scholars maintain very different views about the continuing effects of the Warren Courts precedents in the field of civil rights and civil liberties their papers provide additional evidence of the importance of the Warren Court and its continuing relevance as a subject for constitutional law scholars

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