The intellectual origins of Roe . . . in a law review
posted by Alfred Brophy
Here’s a nice piece of trivia: what law review article laid the blueprint for Roe v. Wade?
Thanks to Orin Kerr’s link to Judge Raymond Randolph’s thought-provoking speech to the Federalist Society on Judge Friendly’s unpublished 1970 draft opinion on abortion rights, I learned something about my school’s history: that Roy Lucas, then an assistant professor at the University of Alabama, published an article in 1968 in the North Carolina Law Review, which (according to Judge Randolph) “laid out a blueprint” for applying Griswold to state anti-abortion laws. Of course, proving influence in the evolution of constitutional thought is a remarkably difficult enterprise. But some knowledgeable people nevertheless believe the article to have been quite important. N.E.H. Hull, Williamjames Hoffer, & Peter Hoffer include an excerpt from the article in their important book, The Abortion Rights Controversy. They say of Lucas’ article that it was a “vital source of ideas for the frontal attack on criminal abortion statutes.”
Hmm, I thought upon reading this, how surprising. I try to pay some attention to my school’s history. I’ve heard some pretty interesting stories about Alabama law faculty. For example, Professor Jay Murphy’s advocacy in the pages of the Alabama Law Review helped defeat some of the legislature’s proposals to resist desegregation in the immediate aftermath of Brown.
Still, until this morning, I had never heard of Roy Lucas. So that led me to a westlaw search, where to my surprise I found that Lucas’ article appears to have been cited barely more than a handful of times. Further evidence, as I’ve observed in the context of my school’s antebellum history, that historians don’t pay sufficient attention to the intellectual history of the South (or of Alabama in particular).
Judge Friendly’s opinion, of course, warrants some comment.
This could lead to another pretty interesting question: what are the most significant law review articles? I’m guessing that Lucas’ would be a contender for inclusion on that list.
November 26, 2005 at 8:50 pm
Posted in: Constitutional Law
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Responses (4)
Stephen - November 27, 2005 at 3:39 pm
VERY interesting! I’m sure the current leadership of Alabama would use news like this to try to end the state’s funding of the law school. “Our tax dollars are going to this kind of radical school publication? Eff that. We’re cutting the funding.”
Dave Hoffman - November 27, 2005 at 6:05 pm
How about a more limited question: the most significant law review articles by alabama professors? I nominate and easy one: “An Argument for Tax Reform Based on Judeo-Christian Ethics” by Susan Hamill.
Concurring Opinions - November 27, 2005 at 6:11 pm
What Law Review Articles Had a Major Influence on the Law?
Al Brophy’s post about Roy Lucas’s law review article helping to form the intellectual foundations for Roe v. Wade has got me thinking about other law review articles that have had a lasting influence on the law. Over on his…
Edward Still - November 29, 2005 at 7:52 am
Roy Lucas was teaching at the University of Alabama Law School when I attended. I remember hearing that after he left the law school, he was working full-time as a lawyer for a group of abortion clinics.
As for the article not being cited, I don’t think that necessarily means much. The importance of his article came from its real-world use by lawyers.
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