Law Commons^™

Contracts Symposium Issue: Featured Speaker: The Right To Contract As A Civil Right, Robin West

Georgetown Law Faculty Publications and Other Works

The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. The individual himself, we generally believe, and only the individual, should decide the scope and terms of his affirmative, voluntary, and other-regarding undertakings. When he does so through contract, the individual and only the individual should determine the terms under which he will perform those duties. The civil rights laws of the nineteenth, twentieth, and early twenty-first centuries, and the various rights they create interfere with these natural freedoms.

So, …

Civil Rights 3.0, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

It is now commonplace to hear the LGBT rights movement being described as the last, or the next, or today’s, pre-eminent civil rights issue. This chapter will explore what that means from several perspectives: What does the label tell us about the civil rights paradigm itself? If the achievement of marriage equality is the great civil rights achievement of this generation, what does that suggest about a future for equality more generally? How have new forms of, and technologies for, movement building affected the idea and practice of civil rights? Does the civil rights paradigm have a future? I focus …

Toward A Jurisprudence Of The Civil Rights Acts, Robin West

Georgetown Law Faculty Publications and Other Works

What is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: …

We The People: Each And Every One, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about “popular sovereignty,” “popular consent,” “higher law,” and “higher-lawmaking.” In this essay, I examine these claims and find them to be both highly under-theorized and deeply problematic. Ackerman’s own presentation of what he considers to be an informal process of constitutional amendment illustrates the importance of formality in protecting the rights retained by the people. And he assumes a collective conception of popular sovereignty without considering the serious normative …

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 …