The Commons | Faculty Focus
able story of how America’s ongoing social transformation could serve as a model for the world.” Their charge was to incorporate principles of U.S. constitutional law and policy into the Convention so that, Lovelace said, “the U.S. could argue that it was at the vanguard of racial progress.” Abram and Ferguson had their own reasons for “leveraging their identities … to symbolize the U.S.’s devotion to racial justice,” Lovelace writes, for one believing their engagement in the treaty process could build synergies between the civil rights movement and U.S. foreign policymakers, and give the cause a new tool in the fight to dismantle Jim Crow. The two “racial diplomats” crafted the Convention’s first draft with a framework similar to the equal protection concept in the 14th Amendment, he writes; it mandated equal justice under the law, equal access to public facilities, and an end to all governmental and other public policies of racial segregation, and advanced the implementation of “special measures” — affirmative action — as a form of restorative justice. Lovelace details their considerable success in defending those principles through the SubCommission’s debates (and against challenges from the Eastern bloc), building a legislative record for the Convention that would credibly allow the U.S. to argue that its pledge to eliminate racial discrimination in all public authorities and institutions applied to governmental entities only and in that way conformed to the U.S. state action doctrine. Lovelace explains that Abram, Ferguson, and other racial liberals incorrectly bargained on the state action doctrine quickly disappearing; the Warren Court then seemed on track to “eviscerate both public and private discrimination” against racial minorities. But it didn’t, and a racial paradox remained, he writes: “Two pioneering civil rights attorneys advanced a reading of the Convention that circumscribed the treaty’s definition of racial discrimination.” His book ends, Lovelace said, with a discussion of Justice Ruth Bader Ginsburg’s citation to the U.N. Race Convention in her opinions upholding affirmative action in higher education in Gratz v. Bollinger and Grutter v. Bollinger. “She was deeply criticized by many people for citing to this ‘foreign source’ and Congress even held hearings around the proper usage of foreign sources in constitutional adjudication,” he said. “But the history of the Convention shows that these critics are not correct. The reason she could cite the human rights Convention so easily was because the ‘special measures’ were produced by Americans — Morris Abram and Clyde Ferguson.” Lovelace said he is delighted to be returning to Duke, having found an “intellectually rich, warm, and welcoming community” when he served as the John Hope Franklin Visiting Professor of American Legal History — itself a “huge honor.” “John Hope Franklin was so productive, so thoughtful as a scholar, such a pioneer,” he said of the legendary historian who taught at Duke Law from 1985 to 1992. He also enjoyed having a “front row seat” to his former professor’s first year as dean at Duke Law. Lovelace has even deeper Duke ties, forged through his longtime participation in the Law School’s Culp Colloquium and Emerging Scholars Program that help prepare minority scholars enter and advance in the legal academy through job talks, advice, and scholarship workshops. In addition to getting valuable feedback from multiple faculty on scholarship, Edward and Ellen Schwarzman Professor of Law Guy-Uriel Charles, who leads the programs, quickly emerged as a mentor. “Tim is one of the most exciting legal historians in the legal academy,” Charles said. “He is a careful and smart scholar. We are extremely lucky to attract him to Duke.” d — Frances Presma
20 Duke Law Magazine • Summer 2020
Duke awards distinguished professorships to Farahany, Frakes, and Sachs
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rofessors Nita Farahany JD/MA ’04, PhD ’06, Michael Frakes, and Stephen Sachs have been awarded distinguished professorships from Duke University. Their professorships took effect on July 1. Dean Kerry Abrams nominated the three professors on the recommendation of those members of the Law School faculty who already hold distinguished professorships. To qualify for a distinguished professorship at Duke, a faculty member must have amassed a substantial record of intellectual achievement and be one of the leading thinkers in their field. The award recognizes past achievement and predicts future accomplishment.
