Civil Disobedience, State Action, and Lawmaking Outside the Courts: Robert Bell's Encounter with American Law

Journal of Supreme Court History, Vol. 39, No. 3 (Nov. 2014): 347-71

Harvard Public Law Working Paper No. 15-04

26 Pages Posted: 8 Mar 2015 Last revised: 4 Apr 2015

Date Written: March 6, 2015

Abstract

This article uses the well-known case of Robert Bell, who was convicted of trespass in one of the important sit-in cases of the 1960s and ended his career as Chief Justice of the Maryland Court of Appeals, to offer some thoughts about the state action doctrine, conflicts between law and morality, and outsider claims on the legal system. It critiques three conventional readings of Bell’s case, and his seemingly unlikely subsequent career.

Employing a historical analysis of the state action doctrine, which was the central issue when Bell’s case reached the Supreme Court, it argues that the case that supposedly originated the doctrine – the Civil Rights Cases decision of 1883 – did no such thing.

In addition, this article questions the view of cases like Bell’s as presenting a sharp conflict between law and morality, arguing that it is not even clear that Bell was violating Maryland’s trespass law.

Finally, the article questions a now-common way of making sense of the arc of Bell’s career – one which would see his rise to the Chief Justiceship as an example of “agency,” in which outsider views of law become, over time, accepted by the legal system. Bell’s case, it will be argued here, has a far more complicated set of lessons to teach, if we discard some conventional ways of reading it.

Keywords: State Action, Civil Disodedience, Civil RIghts, Law and Society

Suggested Citation

Mack, Kenneth W., Civil Disobedience, State Action, and Lawmaking Outside the Courts: Robert Bell's Encounter with American Law (March 6, 2015). Journal of Supreme Court History, Vol. 39, No. 3 (Nov. 2014): 347-71; Harvard Public Law Working Paper No. 15-04. Available at SSRN: https://ssrn.com/abstract=2574760

Kenneth W. Mack (Contact Author)

Harvard Law School ( email )

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617-496-5156 (Fax)

HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=117

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