Anders Walker

This article posits that the Supreme Court's recent Second Amendment ruling District of Columbia v. Heller is a victory for civil rights, but not in the sense that most activists from the 1960s would recognize. Rather than a product of mid-century legal liberalism, Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights. The implications of this are potentially great. By declaring the right to use deadly force in self-defense an "essential" right, the Court has just positioned itself to use the same due process analysis that it did in Roe v. Wade to invalidate municipal gun bans, without having to overrule past opinions like Cruickshank or even bothering to incorporate the Second Amendment to the states.

This Article reconstructs Lewis F. Powell Jr.'s thoughts on
the civil rights movement by focusing on a series of little known speeches that he delivered in the 1960s lamenting the
practice of civil disobedience endorsed by Martin Luther
King Jr. Convinced that the law had done all it could for
blacks, Powell took issue with King's "Letter from
Birmingham Jail," impugning its invocation of civil
disobedience and rejecting its calls for compensatory justice
to make up for slavery and Jim Crow. Dismissive of
reparations, Powell developed a separate basis for
supporting diversity that hinged on distinguishing American
pluralism from Soviet totalitarianism. Powell's reasons for
defending diversity are worth recovering today, not least
because courts continue to misinterpret his landmark
opinion in Regents v. Bakke, confusing the use of diversity in
higher education with the compensatory goals of affirmative
action, a project that Powell rejected.

Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work ofprevailing scholars in the field.

ABSTRACT This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle missed its subordinate relationship to what J.S. Mill termed the principle of freedom.

This article challenges the prevailing wisdom that Terry v. Ohio marked the end of the Warren Court's criminal procedure revolution.  Instead, it shows how Terry responded to confusion caused by Mapp v. Ohio's warrant requirement, and in so doing sought to minimize police/community tensions.

In the wake of national publicity over the murder of African American teenager Emmett Till, Mississippi officials worked diligently to modernize law enforcement, removing power from local sheriffs and centralizing control of the criminal justice system.  Rather than a mechanism for combating systemic racism, reforming police procedure helped cement that racism in place.

This article is the first to recover the dramatic transformation in criminal law teaching away from the case method and towards a more open-ended philosophical approach in the 1930s. It makes three contributions. One, it shows how Columbia Law Professor Herbert Wechsler revolutionized the teaching of criminal law by de-emphasizing cases and including a variety of non-case related material in his 1940 text Criminal Law and Its Administration. Two, it reveals that at least part of Wechsler's intention behind transforming criminal law teaching was to undermine Langdell's case method, which he blamed for producing a "closed-system" view of the law that contributed to the destruction of the first half of the New Deal. Three, it shows that Wechsler's text inspired an entire generation of law teachers who believed that criminal law should be taught as a "liberal arts" course, precisely so that law students would not become criminal lawyers. The legal academy...

... 110 Columbia Law Review 1911, 2010 Anders Walker Saint Louis University - School of Law This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=1527099 Page 2. ...

Few tropes in American legal teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law--what this Article terms “new common law”--transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this Article proposes a radical update, emphasizing two objectives: (1) the need to stress the interplay between individual state cases and codes, and (2) the need to abandon the position that the Model Penal Code represents a bold new vision of criminal law reform, particularly since that vision is itself almost half a century old.

Drawing from social movement theory, this Article shows that both the constitutional challenge to gun bans in Illinois and the constitutional challenge to California's same-sex marriage ban have dealt with issues of frame alignment similar to those confronted by the civil rights movement in the 1960s. Yet, it is the Second Amendment litigation, ironically, that has most closely followed the movement's attention to aligning legal claims with cultural trends. Out of this analysis emerges a larger claim that the analytics of frame alignment, and social movement theory generally, deserve more attention by constitutional scholars, both as a uniform analytic for comparing divergent reform agendas, and for better understanding the central role of cultural frames in determining the parameters of constitutional rights.

Building on current interest in the regulation of child pornography, this Article goes back to the 1950s, recovering a lost history of how southern segregationists used the battle against obscenity to counter the Supreme Court’s ruling in Brown v. Board of Education. Focused on the psychological development of children, Brown sparked a discursive backlash in the South focused on claims

Taking Herbert Wechsler's endorsement of neutral principles as a starting point, this article will examine Wechsler's engagement with the “long” civil rights movement, showing how lessons that he learned from communists in the 1930s influenced his approach to civil rights lawyering and legal process in the 1940s and beyond.18 It will build on Kenneth Mack's argument that rights-based liberalism was not the only approach to civil rights reform in the post-World War I era, nor was legal process as unresponsive to civil rights as scholars like Akhil Amar contend.19 In fact, while most scholars agree with Amar that legal process failed to come to “grips” with civil rights, Wechsler suggests the opposite is true.20 As the Warren Court's activist approach in *389 Brown faltered, Herbert Wechsler's strategic version of legal process came to the rescue, directly aiding the direct action campaigns in Mississippi and Alabama in 1964 and 1965. T

Conservatives and liberals read American history differently.  Why?  How do historians marshal facts, interpret events, and tell stories in ways that line up with their political views?  Relying on two of the most popular, and polarizing texts in America history – A People’s History of the United States, and A Patriot’s History of the United States – this class will assess the manner in which emphasis, tone, and periodization shape our understanding of history.  It will address the problem of presentism, i.e. the practice of assessing the past through prevailing values, principles, and scientific positions (positions that did not exist at the time in question). And it will look at the political uses of the past, i.e. the manner in which history can be invoked to advance a particular agenda.  To illustrate, the class will reference current debates over America’s past, including debates over slavery, capitalism, curricula, and monuments.