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Beyond Brown: Opportunity Versus Equality as an Empowerment Norm: An Essay for Owen Fiss, 58 U. Miami L. Rev. 347 (2004)

Abstract

I became a student of Owen Fiss in 1969 during my first year of law school at the University of Chicago. He was then, and remains, the most exciting teacher I have ever known or experienced. Each of his classes is dominated by constant tension: not tension between instructor and student, though that was a prevalent pedagogic method of the time, but an intellectual tension that derives—as I have later learned from teaching with him—from Owen's careful effort to construct from the materials for that day's class the most important and striking contrasts in ideas from which the student can learn. The discussion and debate that ensue put students—class after class—on the edge of their chairs, at once intellectually exhilarating and deeply instructive.

For those most unfortunate readers who have not experienced a Fiss class, a flavor of the style can be seen from a passage I came across in rereading Owen's great article The Forms of Justice. The passage perfectly captures the form of opening statement with which he begins each class or seminar. In the article, Owen is describing the difficulties some courts—and, in particular, the Burger Court—were having in conceptualizing structural reform, such as the reform of prisons or school systems, as a form of adjudication. His introduction describes the importance of the issue, how structural reform derived from the Warren Court's Brown decision, was extended in the early Burger Court years, but was then under attack. He frames the issue in the article just as he frames issues in each of his classes:

[W]e are at a historic moment, a turning point in the history of procedure—not because we are in the midst of an intellectual revolution, but because we are in the midst of a counterrevolution; not because we are at the verge of a new discovery, but because the discovery of an earlier era is now in jeopardy.

Date of Authorship for this Version

2004

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