Law Commons^™

The Carceral Home, Kate Weisburd

GW Law Faculty Publications & Other Works

In virtually all areas of law, the home is the ultimate constitutionally protected area, at least in theory. In practice, a range of modern institutions that target private life—from public housing to child welfare—have turned the home into a routinely surveilled space. Indeed, for the 4.5 million people on criminal court supervision, their home is their prison, or what I call a “carceral home.” Often in the name of decarceration, prison walls are replaced with restrictive rules that govern every aspect of private life and invasive surveillance technology that continuously records intimate information. While prisons have always been treated in …

The Supreme Court’S Surprising And Strategic Response To The Civil Rights Act Of 1991, Michael Selmi

GW Law Faculty Publications & Other Works

This essay, which was prepared for a symposium issue in recognition of the twentieth anniversary of the Civil Rights Act of 1991, explores the Supreme Court’s response to the Congressional repudiation of its cases reflected in the 1991 Act. Relying on a positive political theory framework, I demonstrate that the Court appears to have responded in a strategically sophisticated manner designed to insulate their decisions from Congressional reversal. The 1991 Act reversed or modified eight Supreme Court decisions, and reflected concern regarding the conservative turn the Court had taken in discrimination cases. After the passage of the Act, plaintiffs have …

Courts, Clergy, And Congregations: Disputes Between Religious Institutions And Their Leaders, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

For nearly forty years, the courts have barred a variety of lawsuits by clergy against their religious entity-employers. These suits frequently involve matters of civil rights, such as sex-based discrimination in employment, but they also involve claims of defamation, violation of fair labor standards, and breach of employment contracts, among others. To justify the barriers to these suits, courts typically rely on concepts drawn from the First Amendment's Religion Clauses. In particular, courts frequently invoke theories of free exercise of religion by religious institutions, or notions of "excessive entanglement" between church and state, to justify this line of case law. …

Implementing The Social And Economic Promise Of The Constitution: The Role Of South African Legal Education, Susan R. Jones, Peggy Maisel

GW Law Faculty Publications & Other Works

The South African Constitution recognizes socio-economic rights as a necessary foundation for the enjoyment of civil and political rights. The South African Constitution, one of the most progressive in the world, contains many important protections such as the rights to equality, housing, and education. The Broad-Based Black Economic Empowerment Law (BEE) was designated to address the economic inequities of apartheid. South Africa’s commitment to economic justice is also evidenced by the fact that it is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The challenge is translating these rights into opportunities for social and economic …

The Cul De Sac Of Race Preference Discourse, Christopher A. Bracey

GW Law Faculty Publications & Other Works

Affirmative action policy remains a contentious issue in public debate despite public endorsement by America’s leading institutions and validation by the United States Supreme Court. But the decades old disagreement is mired in an unproductive rhetorical stalemate marked by entrenched ideology rather than healthy dialogue. Instead of evolving, racial dialogue about the relevance of race in university admissions and hiring decisions is trapped in a cycle of resentment.

In this article, I argue that the stagnation of race preference discourse arises because the basic rhetorical themes advanced by opponents have evolved little over 150 years since the racial reform efforts …

Dignity In Race Jurisprudence, Christopher A. Bracey

GW Law Faculty Publications & Other Works

Racial justice demands dignity; the acknowledgment and affirmation of the equal humanity of people of color. Denying dignity on the basis of color creates racial subordination, which triggers dignitary harms such as individual acts of racism and communal exclusion leading to diminished health, wealth, income, employment and social status. The legal recognition of dignity is therefore a prerequisite to political and social equality. For Americans of African descent, dignity was long denied by the legal endorsement of slavery and the degrading policies of segregation. The struggle to be treated equally human eventually found success in landmark cases such as Brown …

Adjudication, Antisubordination, And The Jazz Connection, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests. Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially …

Thinking Race, Making Nation (Reviewing Glenn C. Loury, The Anatomy Of Racial Inequality), Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a race-conscious culture. As Americans, we are a nation of people who self-consciously chose to adopt a vision of society that embraced lofty ideals of individual freedom and democracy for all along with powerful mechanisms for devastating racial oppression. Our history is replete with instances of differential treatment on account of race - slavery being only the most egregious example - that achieved the desired effect of generating remarkable disparities in socioeconomic well-being among individuals and between different racial groups. Such disparities are not simply historical artifacts. They are facts of the contemporary American racial landscape as …

Louis Brandeis And The Race Question, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a culture enamored by our heroes. They are celebrated for their extraordinary accomplishments, and canonized by histories that rarely reflect the true texture of their lives. Legal academics share in these tendencies and, as a result, heroes in the law are often viewed with the same rose-colored glasses accorded to their counterparts in popular culture. The late Louis Brandeis was an Associate Justice on the Supreme Court of the United States from 1916 to 1939. Born to Jewish immigrant parents, he graduated from Harvard Law School, and gained a reputation as America’s “People’s Attorney.” He pioneered an …