Law Commons^™

Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham

All Faculty Scholarship

This symposium speech is a short piece which talks about why there is a need for law students to become cause lawyers, the symposium being: cause lawyers and cause lawyering in the sixty years after Brown v. Board of Education. The writer creates an allegorical scene where he's snowed in in his home during a snowstorm, lightning strikes his computer, and the computer comes to life in the form a message being typed, and "channeled" to him by Thurgood Marshall. The former Justice of the Supreme Court proceeds to state the many reasons why there is still a need for …

A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee

All Faculty Scholarship

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Powers And Rights In Shelby County V. Holder, Corey Brettschneider

Schmooze 'tickets'

No abstract provided.

Was The First Justice Harlan Anti-Chinese?, James W. Gordon

Faculty Scholarship

The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one …

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Magna Carta’S Freedom For The English Church, Dwight G. Duncan

Faculty Publications

Even after, eight centuries, this provision of Magna Carta is one of the few that remains in effect. A statement of principle that the Church in England should be free from outside domination, it is an ancestor of our American belief in separation of Church and State and the guarantee of free exercise of religion contained in the First Amendment. In English history, people died for this principle, on various sides of the denominational divides. It was not always vindicated in practice. But, since at least the end of the thirteenth century, it has ever been on the statute books …

Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein

Scholarly Works

Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …

The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.

Articles

This article builds upon remarks the author originally delivered at the Nineteenth Annual Derrick Bell Lecture on Race in American Society at NYU Law in November of 2014. The Article describes the history and purpose of the Thirteenth Amendment’s proscription of the badges and incidents of slavery and argues that an understanding of the Amendment's context and its Framers' intent can provide the basis for a more progressive vision for advancing civil rights. The Article discusses how the Thirteenth Amendment could prove to be more effective in addressing persisting forms of inequality that have escaped the reach of the Equal …

Gun Rights Talk, Joseph Blocher

Faculty Scholarship

No abstract provided.

A Tale Of Two Rights, Robin West

Georgetown Law Faculty Publications and Other Works

In part I of this article the author identifies and criticizes a cluster of constitutional rights, which she argues does tremendous and generally unreckoned harm to civil society, and does so for reasons poorly articulated in earlier critiques. At the heart of the new paradigm of constitutional rights that the author believes these rights exemplify is a “right to exit.” On this conception of individual rights, a constitutional right is a right to “opt out” of some central public or civic project. This understanding of what it means to have a constitutional right hit the scene a good two decades …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …