1. Long, Tom, “Kathryn Preyer, 80; Scholar in History Taught at Wellesley,” Boston Globe (April 21, 2005), C15.
2. Botson, Michael R. Jr, Labor, Civil Rights, and the Hughes Tool Company (College Station: Texas A&M Press, 2005), 4, 181 ; Brown v. Board of Education, 347 U.S. 483 (1954) ; Hughes Tool, 147 NLRB 1573 (1964).
3. Kluger, Richard, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Knopf, 1976).
4. Reva Siegel, “Equality Talk: Antisubordination and Anticlassification Values in Struggles over Brown,” http://www.law.yale.edu/documents/pdf/Equality Talk - Hein.pdf
5. Rosenberg, Gerald, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991).
6. Dudziak, Mary, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2000), 104.
7. Klarman, Michael, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 385.
8. Bell, Derrick, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (New York: Oxford Univesity Press, 2004), 21–27.
9. Hall, Jacquelyn Dowd, “The Long Civil Rights Movement and the Political Uses of the Past,” Journal of American History 91 (2005): 1233–53 ; Gilmore, Glenda, Defying Dixie: The Radical Roots of Civil Rights, 1919–1950 (New York: W. W. Norton, 2008).
10. Gilmore, , Defying Dixie, at 9, 6.
11. Biondi, Martha, To Stand and Fight: The Struggle for Civil Rights in Postwar New York City (Cambridge: Harvard University Press, 2003).
12. Hirsch, Arnold, Making the Second Ghetto: Race and Housing in Chicago, 1940–1960 (Chicago: University of Chicago Press, 1983,1998).
13. Sugrue, Thomas, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit (Princeton: Princeton University Press, 1996).
14. Self, Robert, American Babylon, Race and the Struggle for Postwar Oakland (Princeton: Princeton University Press, 2003).
15. Theoharis, Jeanne and Woodard, Komozi, eds., Freedom North: Black Freedom Struggles outside the South, 1940–1980 (New York: Palgrave Macmillan, 2003).
16. Mack, Kenneth, “Rethinking Civil Rights Lawyering and Politics in the Era before Brown,” Yale Law Journal 115 (2005): 256–354.
17. Goluboff, Risa, The Lost Promise of Civil Rights (Cambridge: Harvard University Press, 2007), 5.
19. Maclean, Nancy, “Achieving the Promise of the Civil Rights Act: Herbert Hill and the NAACP's Fight for Jobs and Justice,” Labor: Studies in Working-Class History of the Americas 3 (Summer 2006): 17.
20. Hill, Herbert, “The Problem of Race in American Labor History,” Reviews in American History 24 (1996): 189, 196.
21. Goluboff, Risa, “Let Economic Equality Take Care of Itself: The NAACP, Labor Litigation, and the Making of Civil Rights in the 1940s,” UCLA Law Review 52 (2005): 1400 ; Goluboff, , Lost Promise, at 226.
22. I had always assumed that the phrase, “big nothing,” was invented by W. Randall Garr during the 1970s, but I may have been mistaken. See, e.g., Schaffner, Ingrid, Simpson, Bennett, Kother, Jutta, Gould, Claudia, Baer, Jo, James, Gareth, Kelley, Mike, Klein, Yves, Lawler, Louise, Prince, Richard, The Big Nothing (Philadelphia: ICA Philadelphia, 2004). My question here is intended to provoke. I have argued that legal liberalism was something more than a big nothing in Kalman, , The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996).
23. “We put those payroll contributions there,” Roosevelt famously said of the tax on employee wages, “so as to give the contributors a legal, moral and political right to collect their pensions and unemployment benefits. With those taxes in there, no damn politician can ever scrap my social security program.” Achenbaum, W. Andrew, Social Security: Visions and Revisions (New York: Cambridge University Press, 1986), 22–23.
24. Email, Daniel Ernst to Laura Kalman, August 4, 2006.
25. Abraham, David, “Liberty without Equality: The Property-Rights Connection in a ‘Negative Citizenship’ Regime,” Law and Social Inquiry 21 (1996): 24, n. 79.
26. Watkins v. U.S., 354 US 178 (1957).
27. Yates v. U.S., 354 US 298 (1957).
28. Sweezy v. New Hampshire, 354 US 234 (1957).
29. Service v. Dulles, 354 US 363 (1957).
30. Powe, Lucas Jr, The Warren Court and American Politics (Cambridge: Harvard University Press, 2000), 98.
33. Citron, Rodger, “Charles Reich's Journey from the Yale Law Journal to the New York Times Best-Seller List: The Personal History of the Greening of America” (forthcoming, New York Law School Law Review, TAN n. 81).
34. Goldberg v. Kelly, 397 U.S. 254, 261, n. 8 (1970). Of course, one can never be certain whether legal scholarship actually influences judges. See, e.g., Kalman, , Strange Career, at 242–44. But it seems likely that Brennan regarded “The New Property” as something more than mere window dressing that enabled him to rationalize a result he wanted to reach. “The New Property” apparently helped him think his way to his destination.
35. Mashaw, Jerry, “Administrative Due Process: The Quest for a Dignitary Theory,” Boston University Law Review 61 (1981): 888 ; Mashaw, , Due Process in the Administrative State (New Haven: Yale University Press, 1985), 26 ; Kornbluh, Felicia, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007), 172–76. Reich himself said, “Judged by the experience of twenty years, the moderate due process, cost-benefit approach to individual security must surely be deemed a failure. We have given it a fair trial, and it does not work.” Reich, Charles, “Beyond the New Property: An Ecological View of Due Process,” Brooklyn Law Review 56 (1990): 732–33.