The U.S. Supreme Court’s decision in Brown v. Board of Education has influenced civil rights and antidiscrimination laws beyond the bor-ders of the United States. The concept of equal protection from Brown and other American precedents has been a crucial stimulus for legal de-velopment in Europe. However, these precedents have operated in very different ways in the United States and in Europe. They have been reconstructed and in some cases transformed to fit the different social and political milieu of the European countries. This lecture examines such reconstruction using three illustrations: (1) the recognition of unintentional indirect discrimination; (2) the proof of direct discrimina-tion; and (3) the development of positive duties on public authorities to promote equality of opportunity. There are a number of reasons for the divergences between the two continents. First, there are profoundly dif-ferent contexts of racial disadvantage in the United States and in Europe. Second, racial classifications tend to be less entrenched in European countries than in the United States. Finally, European countries have recognized positive social, economic, and cultural obligations on the state. Thus, the globalization of law and the transplant of legal ideas into various countries actually creates differences between legal institutions, and these differences will continue to grow in the future.
The full text of this David C. Baum Memorial Lecture is available to download as a PDF.