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Engineering the Endgame

40 Pages Posted: 15 Oct 2010 Last revised: 17 Nov 2010

Ellen D. Katz

University of Michigan Law School

Date Written: October 14, 2010

Abstract

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions.

The Article seeks to map out a better response to changed conditions than the all or nothing options that presently define the debate. It argues that longstanding remedies should neither be terminated nor continued indefinitely, but instead should be adapted to better address changed circumstances. Specifically, the Article calls for a shift in remedial focus away from the effects of past discrimination to the local institutions that must deal with those effects most directly. It calls on courts, legislators and voters to adapt remedies so that they provide institutions of local governance with the skills and resources needed to operate fairly in an environment inexorably shaped by past discrimination.

Suggested Citation

Katz, Ellen D., Engineering the Endgame (October 14, 2010). Michigan Law Review, Forthcoming; U of Michigan Public Law Working Paper No. 222. Available at SSRN: https://ssrn.com/abstract=1692131

Ellen Katz (Contact Author)

University of Michigan Law School ( email )

625 South State Street
LR 960
Ann Arbor, MI 48109-1215
United States
734-647-6241 (Phone)

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