Christopher W. Schmidt

Bio: Christopher W. Schmidt is an academic researcher from Chicago-Kent College of Law. The author has contributed to research in topics: Supreme court & Legal history. The author has an hindex of 6, co-authored 46 publications receiving 177 citations. Previous affiliations of Christopher W. Schmidt include Illinois Institute of Technology & American Bar Foundation.

Legal History and the Problem of the Long Civil Rights Movement

Abstract: This essay offers a critical examination of use of the term “long civil rights movement” as a framework for understanding the legal history of the battle against racial inequality in twentieth-century America. Proponents of the long movement argue that expanding the chronological boundaries of the movement beyond the 1950s and 1960s allows scholars to better capture the diverse social mobilization efforts and ideas that fueled the black freedom struggle. While not questioning the long framework's usefulness for studying the social movement dynamics of racial justice activism, I suggest that the long framework is of more limited value for those who seek to understand the development of civil rights, as a legal claim, particularly in the first half of the twentieth century. The tendency of long movement scholars to treat civil rights as a pliable category into which they can put any and all racial justice claims is in tension with historical understandings of the term. Susan Carle's Defining the Struggle: National Organizing for Racial Justice, 1880–1915 suggests an alternative approach. Her detailed and nuanced account of a period in American history when racial justice activists understood civil rights as a relatively narrow subset of legal remedies within a much broader struggle for racial equality indicates the need for an alternate history of civil rights—one that places the evolving, contested, and historically particularized concept of civil rights at the center of inquiry.

Divided by Law: The Sit-Ins and the Role of the Courts in the Civil Rights Movement

Abstract: The lunch counter sit-in movement of 1960 was a contest not only over nondiscriminatory access to public accommodations, but also over the role of the courts in the developing civil rights movement. The students who launched the sit-ins explicitly defined their protest as an alternative to litigation-based reform tactics. Leading civil rights lawyers, in contrast, urged the students to rely on the judicial process. White business owners and local officials also divided over whether criminal prosecution of the protesters would best serve their interests. These divergent attitudes toward the courts derived from differences of strategy and ideology. They were also affected by developments in Fourteenth Amendment doctrine: by 1960, whether the non-discrimination principle of Brown v. Board of Education reached (or would soon reach) privately owned public accommodations was an open question. Conflict over the appropriate role of the courts ultimately worked to the students’ advantage. It contributed to their collective identity as a protest movement, helped secure outside support, and divided their opponents. Attention to the expectations diverse people placed upon the courts offers a vehicle for charting the ways law and perceptions of law shaped the sit-in movement at various levels — in the streets as well as the courts, among laypeople as well as lawyers and judges. This approach suggests new insights into the intersection of formal legal change and social movement mobilization.

Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case

Abstract: Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable.This Article argues that the fact that all the Justices insisted on providing a limiting principle – which was the demand underlying the broccoli hypothetical – was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, when confronted with novel constitutional questions the Court almost always uses narrow, “localist” reasoning that analyzes only the government’s actual action. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one. The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the Act. In the courts – where, strictly speaking, the doctrinal question involved not personal liberty but congressional power – broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together a popular constitutional movement mobilized against the Affordable Care Act and the constitutional challenge taking place in the courts. We conclude with a normative assessment of this kind of relatively direct extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.

The Sit-Ins and the State Action Doctrine

Abstract: By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and most of the American public, the question of whether the nondiscriminatory logic of Brown should apply to public accommodations involved a consideration of the role of public accommodations in social life, the dignitary costs of exclusion, and the values served by the protection of private choice and associational rights within the commercial sphere. From the perspective of lawyers, judges, and lawmakers, the relevant question centered on a doctrinal issue that had been under considerable pressure in the two decades preceding the sit-ins: the “state action” requirement of the Fourteenth Amendment. At the time of the sit-ins, many assumed that resolution of the issue demanded a reconsideration of the state action doctrine. Yet, when given the opportunity, neither the Supreme Court, in a series of cases arising from the sit-in protests, nor Congress, in framing the public accommodations provision of the Civil Rights Act of 1964, took this path. As a matter of official constitutional interpretation, the state action doctrine survived the civil rights movement, modified somewhat but retaining the same basic form it had when the Court first defined it in the late nineteenth century. In this Article, I explain why the sit-in movement, which proved remarkably successful at changing attitudes, practices, and statutes, ultimately failed to change constitutional law. My analysis of the resilience of the state action doctrine draws on recent scholarship on extrajudicial constitutionalism, even as it challenges some of the premises that underlie this scholarship.

A Consumers' Republic: The Politics of Mass Consumption in Postwar America

Abstract: Historians and social scientists analyzing the contemporary world unfortunately have too little contact and hence miss some of the ways that their interests overlap and the research of one field might benefit another. I am, therefore, extremely grateful that the Journal of Consumer Research has invited me to share with its readers an overview of my recent research on the political and social impact of the flourishing of mass consumption on twentieth-century America. What follows is a summary of my major arguments, enough to entice you, I hope, to read A Consumers' Republic (Cohen 2003), in which I elaborate on these themes. Although this essay is by necessity schematic, the book itself is filled with extensive historical evidence and is heavily illustrated with period images. In tracing the growing importance of mass consumption to the American economy, polity, culture, and social landscape from the 1920s to the present, I in many ways establish the historical context for your research into contemporary consumer behavior and markets. I hope you will …

Oral history

Abstract: Sokiera: This is an interview for the Oral History and Cultural Heritage Center at The University of Southern Mississippi. It is eleven o’clock on November 8, 2012. My name is Jason Sokiera, and I am at the home of Mr. Richard Burger. Mr. Burger, thank you for agreeing to this interview. And first I just wanted to begin by asking you about your childhood, where you were born, where you grew up, things like that.

African American Disproportionality in School Discipline: The Divide Between Best Evidence and Legal Remedy

Abstract: ABOUT THE AUTHORS: Russell J. Skiba, Professor, Indiana University School of Education; Director, Equity Project at Indiana University; B.A., Catholic University, 1975; Ph.D., University of Minnesota, 1987. Suzanne E. Eckes, Associate Professor, Indiana University School of Education; B.A., University of Wisconsin-Madison, 1990; Ed.M., Harvard University, 1998; J.D. and Ph.D. University of WisconsinMadison, 2003. Kevin Brown, Professor, Indiana University Maurer School of Law-Bloomington & Emeritus Director of the Hudson & Holland Scholars Program-Indiana University-Bloomington; B.S., Indiana University, 1978; J.D., Yale University, 1982. The authors would like to thank Timberly Baker, Emily Richardson, and Maggie Paino for their assistance with this article.