I was born in a village, in Rentiesville, Oklahoma, on the second of January, 1915. My mother was a schoolteacher and my father was a lawyer. They had met in Tennessee, where they both were in college, and after a period of time they married and moved to Oklahoma. It was still Indian territory, of course; it became a state in 1907.

My father sought to practice law in Rentiesville, but in a village that had not much more than a hundred people, the practice of law was not a very viable and promising profession. And so, in 1921, after consultation with my mother, he decided to move to Tulsa, Oklahoma, where he could perhaps attract more clients and make a decent living for us. He moved there in February 1921.

We were to move in June after school was out, after my mother completed her teaching and my sister and I had finished our school year. We were all packed and ready to go, and then we didn’t hear from him. And we didn’t hear. And we didn’t hear. Eventually, after several days, my mother read in the newspaper that there was a terrible race riot raging in Tulsa and that there were many casualties. She was not certain that my father had survived.

It is impossible for me to reflect on Brown v. Board of Education and its meaning these five decades later without revisiting in my mind’s eye the white Southern racist society of my youth and young adulthood.

That was a time when my hometown, Nashville, Tennessee, was as racially segregated as any city in South Africa at the height of Apartheid; when every city in the South, large and small, was the same; when African-American residents of those communities were denied access to any place and every place they might need or wish to go.

The legal myth of “separate but equal” had cunningly banned black citizens from every hospital, school, restaurant, trolley, bus, park, theater, hotel, and motel that catered to the white public. These tax-paying citizens were denied access to these places solely on the basis of their race by tradition, custom, local ordinance, state statute, federal policy, and by an edict of the United States Supreme Court fifty-eight years before Brown in Plessy v. Ferguson. In too many of these cities, black citizens were even denied access to the ballot box on election day.

It is really a great honor to be here with my old Duke University colleague, John Hope Franklin, one of the great men of my time.

John Seigenthaler is a distinguished editor, reporter, and colleague for whom I have the highest respect. He took time out, as you know, to be Robert Kennedy’s administrative assistant. As such, he was in Montgomery trying to protect the Freedom Riders. He was beaten almost to death and hospitalized. So he is a man who has been there, and he is a great friend.

Brown v. Board of Education, in my view, split American history. I am certain for African Americans it did. It split American
history into a kind of A.D. and B.C. Prior to Brown, either as a consequence of slavery or a consequence of segregation, African
Americans were subordinated one way or another by law.

I thought one of the most eloquent statements that a president has made about race was the statement that George W. Bush made in Philadelphia last spring when he was attempting to quell the reaction to Trent Lott’s statement at the retirement party for Strom Thurmond. Now, some people might be surprised to hear that. But George W. Bush said that “[e]very day that our nation was segregated was a day our nation was unfaithful to our founding ideals.”

Fundamentally, what I want to do today is to use the lens of Brown v. Board of Education, the celebration of Brown v. Board of Education, and look at it as a “work in progress,” even after fifty years. But before getting to that part of my comments, it bears repeating that we are here to celebrate and recognize that this year is the fiftieth anniversary of Brown. However, we also need to celebrate and recognize all of the Browns, all of the Briggses, all of the Beltons, all of the Davises—that is the Virginia case—and all of the Bollings—that is the District of Columbia case. Those are the names of some of the parents and children that are associated with the five cases that constitute Brown v. Board of Education.

Legislatures are the bedrock of our government; yet legislators and the legislative process itself are commonly viewed with distrust, and even revulsion, by a disquietingly large number of Americans. Public cynicism has increased as legislatures have limited the application of ethics, conflict-of-interest, and financial disclosure laws to themselves. The almost daily reports of individual legislator misconduct confirm in the public mind that there is reason for concern. The result is the problem of legislative misbehavior, which consists of actual or perceived self-serving legislative conduct, coupled with legislative action that keeps legislative behavior invisible to public scrutiny.

Any lawyer who practices in the § 19831 area will confirm that the procedural and substantive complexities of litigating under the statute have become huge. In cases involving claims against sheriffs, the confusion has been compounded by the ramifications of the United States Supreme Court’s decision in McMillian v. Monroe County. For § 1983 purposes, McMillian treats the status of sheriffs as a question of federal law, informed by state law, with classification of the sheriff as a state or local policymaker dependent, in part, upon the particular function performed by the sheriff in that case. If a sheriff is determined to be making policy for the state when engaged in the challenged conduct, the plaintiff cannot sue the sheriff in his official capacity, as that would be tantamount to a suit against the state, forbidden by both the Eleventh Amendment and the Supreme Court’s construction of § 1983.8 A county, subject to suit for constitutional violations caused by its own policymakers, will bear no liability for conduct attributed to a sheriff who is a state policymaker. While a suit against a state policymaker may proceed against the official in his individual capacity, plaintiffs are often precluded from recovering damages by the official’s assertion of the qualified-immunity defense.

A seventeen-year-old girl attended a party with her new boyfriend. Everyone at the party drank alcohol, but she did not. Although the girl said that she was not ready for sex, she engaged in a three-way sexual encounter at the party with her boyfriend and his friend, John. During the encounter, John left the room and the girl and her boyfriend had sexual intercourse. When it was over, her boyfriend left the room and John returned. Wordlessly, John and the girl began having sex. The girl, having second thoughts, rolled on top of John and told him she had to go home. He rolled himself on top of her and responded, “Just give me a minute.” The girl replied, “No. I have to go home.” About one minute later, John stopped the intercourse.

Did John rape the girl, or did she engage in consensual sex? In 2003, the California Supreme Court held that John’s actions constituted a forcible rape. That holding resolved a jurisdictional split and solidified the legal possibility of post-penetration rape as a convictable offense under California’s rape statute. The holding proved controversial, and reactions of approval and disapproval resonated throughout the legal community, media, and general public.4 Reasons for the controversy varied, but two main issues arose: whether courts should recognize post-penetration rape as an offense that is convictable under a rape or sexual assault statute, and if so, based on the facts of In re John Z., whether John actually committed a rape.

With the increased frequency of mergers and acquisitions in the 1980s, Congress became concerned about abusively large payments made to executives when a corporation was acquired. In response to this perceived abuse, Congress enacted a pair of tax statutes designed to reduce or eliminate these payments. Sections 280G and 4999 of the Internal Revenue Code, both entitled “Golden parachute payments,” are punitive tax provisions designed to discourage corporations from making, and executives from receiving, abusively large payments when a corporation is acquired.

In Department of Transportation v. Armadillo Partners, Inc. (Armadillo II), the Florida Supreme Court held that evidence of costs to cure in eminent domain actions, while admissible to establish just compensation, should not be a component of a property owner’s compensation and are not damages but should be considered merely in evaluating the effect of the taking on the remainder property’s market value. In doing so, the Court found that costs to cure are admissible only if tied to the cure’s effect on the remainder’s fair market value. In focusing on the proof offered by the condemnor’s appraisal expert in the case, the Court also held that an expert’s challenged method of evaluation “should ordinarily be treated as an issue of weight, not admissibility.” The Court’s holding applies even when the expert’s opinion contravenes the law of severance damages, which provides that full compensation for a taking should include both ‘“the value of the portion being appropriated and any damage to the remainder caused by the taking.’”

In deciding Armadillo II, the Court rejected years of precedent that addressed the effect of proposed cures on areas outside of the area taken. More important, because Armadillo II concerns expert testimony in general, the decision may encourage experts to ignore established law because doing so affects only the weight, as opposed to the admissibility, of their testimony. By rejecting the long-standing and broadly applicable rule that permits trial courts to exclude expert testimony when it contravenes established law, Armadillo II may mislead juries and lead to erroneous and inequitable jury verdicts.