Civil Rights and Discrimination Commons^™

The New Mccarthyism: Repeating History In The War In Terrorism, David Cole

Georgetown Law Faculty Publications and Other Works

This Essay will argue that the government has invoked two methods in particular in virtually every time of fear. The first, discussed in Part I, involves a substantive expansion of the terms of responsibility. Authorities target individuals not for what they do or have done but based on predictions about what they might do. These predictions often rely on the individuals' skin color, nationality, or political and religious associations. The second method, the subject of Part II, is procedural-the government invokes administrative processes to control, precisely so that it can avoid the guarantees associated with the criminal process. In hindsight, …

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Slavery And The Roots Of Sexual Harassment, Adrienne D. Davis

Scholarship@WashULaw

In recent years, feminist scholars and activists have demonstrated the ways that U.S. slavery functioned as a system of gender supremacy. It entailed the dominance of men over women as well as whites over blacks. Adding the gender lens has shed immense light on the ways that sex, law, and power operated in the racially supremacist enslaving South. In recent years, this literature has emphasized the ways that slavery's sexual and racial subordination converged around the bodies of enslaved black women. One project within this literature characterizes slavery as a "sexual political economy" to make explicit the connections between its …

A Normative Analysis Of The Rights And Duties Of Law Professors To Speak Out, Robert R. Kuehn

Scholarship@WashULaw

As lawyers and members of a profession dedicated to equal justice under law and public service, many law professors have stepped out of the classroom and out of traditional academic scholarship to address perceived injustices in society through efforts such as pro bono litigation and legislative drafting. However, the amount of legally-related public service work by law professors is thought to be quite modest. This article analyzes the normative bases for the rights and duties of law professors to speak out on issues of public concern. It addresses laws that affect the right of a law professor to participate in …

Reconciling What The First Amendment Forbids With What The Copyright Clause Permits: A Summary Explanation And Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

Book Review Of Against Equality Of Opportunity, Michael Ashley Stein

Faculty Publications

No abstract provided.

The New Privacy, Paul M. Schwartz, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy John Gilliom (2001).

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. …

Defending Korematsu?: Reflections On Civil Liberties In Wartime, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Justice William J. Brennan, "After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along." This Article examines that observation, using Korematsu as a vehicle for refining the claim and, I think, reducing it to a more defensible one. Part I opens my discussion, providing some qualifications to the broad claim about threats to civil liberties in wartime. Part II then deals with Korematsu and other historical examples of civil liberties …

A Moving Violation? Hypercriminalized Spaces And Fortuitous Presence In Drug Free School Zones, L. Buckner Inniss

Publications

No abstract provided.

Litigation Narratives: Why Jensen V. Ellerth Didn't Change Sexual Harassment Law, But Still Has A Story Worth Telling, Melissa Hart

Publications

No abstract provided.

Locked In Segregation, Daria Roithmayr

Publications

In earlier work, I have developed the lock-in model of inequality, which compares persistent racial inequality to persistent market monopoly power. In this article, I explore the implications of applying the lock-in model to the problem of residential segregation. Here, I put forward two central arguments. First, I argue that residential segregation constitutes an example of a locked-in racial monopoly. During the days of Jim Crow, white racial cartels (e.g., homeowners' associations and real estate boards) engaged in anti-competitive conduct to exclude blacks and monopolize access to good neighborhoods. That early neighborhood advantage has now become locked-in via certain self-reinforcing …

Explaining Grutter V. Bollinger, Neal Devins

Faculty Publications

No abstract provided.

Sex Plus Age Discrimination: Protecting Older Women Workers, Nicole Buonocore Porter

Faculty Publications

There is little doubt that sexism and ageism still exist. To remedy these "isms," there are laws to protect both women and older workers from discrimination in the workplace, namely Title VII of the Civil Rights Act of 1964 ("Title VII"), which prohibits sex discrimination as well as discrimination based on many other protected categories, and the Age Discrimination in Employment Act of 1967 ("ADEA"), which prohibits age discrimination. Despite these protections, an older woman cannot bring a claim based on the fact that she feels she was discriminated against because she is an older woman. In other words, her …

Thinking About Feminism, Social Justice, And The Place Of Feminist Law Journals: A Letter To The Editor, Suzanne B. Goldberg

Faculty Scholarship

Dear Editors:

You, like the editors who came before you, have staked a place in an invigorating and challenging conversation about the transformative potential of feminist approaches to social justice.1 As you envision and edit your journal, fundamental questions about the purpose of feminist scholarship and the value of retaining an autonomous space for feminist jurisprudence loom large.

Not surprisingly, The Bluebook will provide little guidance on these topics. Instead, consistent with the feminist enterprise,2 you will need to search out sources, both within and outside of the law school library, to spark your critical thinking. Ideally these will ensure …

“Forget The Alamo”: Race Courses As A Struggle Over History And Collective Memory, Robert S. Chang

Faculty Articles

This article discusses issues related to the study and teaching of race and ethnicity. Professor Chang explains the way race is taught or not taught in law schools is reflective of the historical and factual predicates we want our students to have. Faculty diversification can have an impact on the courses that are taught. Most, if not all, of the courses on critical race theory are taught by faculty-of-color. Most of the primary courses on Latinas/os and the law are taught by Latinas/os. If more related and primary courses are going to be offered by schools, then it seems that …

Syllabus: Asian Americans And The Law, Robert S. Chang

Faculty Articles

This is the accompanying syllabus to the essay by Professor Chang, “Teaching Asian Americans and the Law: Struggling with History, Identity, and Politics.” The article explores the goals and challenges in constructing a course on Asian Americans and the Law. In his course on Asian Americans and the Law, Professor Chang tries to include in the weekly reading packets history, narratives, and cases. Professor Chang includes the narratives because he has found that the students often have a difficult time relating to the history without them. After all, narratives bring life to history, making it easier for students to relate …

(Racial) Profiles In Courage, Or Can We Be Heroes, Too?, Robert S. Chang

Faculty Articles

This article begins with the controversy over a proposed monument based on a widely disseminated photograph of three firefighters raising the American flag over the ruins of the World Trade Center. The three firefighters were White. The proposed monument would have had one White firefighter, one Black, and one Hispanic. This article argues that the controversy over the proposed monument serves as a microcosm for the larger and more important struggle over racial and gender diversity within fire departments, generally.

The Sojourner’S Truth And Other Stories, Robert S. Chang

Faculty Articles

In this introductory essay to a cluster of articles on Migrations, Citizens, and Latinas/os, Professor Chang frames the work of Ruben Garcia, Camille Nelson, and Victor Romero as setting forth what might be described as truths that can be learned from the sojourner/immigrant. This essay argues that the sojourner/immigrant's contributions to U.S. society are often ignored or discounted, which may be due to a willful amnesia because we do not want to think about what we might owe the sojourner/immigrant with regard to her entry into the United States, her stay, and her departure.

The War On Terror: Constitutional Governance In A State Of Permanent Warfare?, W. Wesley Pue

All Faculty Publications

This article assesses Canada's principal legal responses to the challenge presented by terrorism in the aftermath of the September 11, 2001 attacks on the United States. A review of major federal anti-terrorism legislation reveals a legislative response that fundamentally violates core constitutional principles while failing to significantly enhance public safety.

Security And Freedom: Are The Governments' Efforts To Deal With Terrorism Violative Of Our Freedoms?, David Cole

Georgetown Law Faculty Publications and Other Works

One of the most common things that is said about September 11th is that it changed everything. In some respects, that is true. In the most important respects it would be more accurate to say it has changed everything for some, far more than it has for others. One instance of that can be seen in a pole that National Public Radio did one year after September 11th. They asked people to what extent their life had changed. They asked them whether they had to give up any important rights or freedoms in the war on terrorism. Only seven percent …

Transgender Jurisprudence: Dysphoric Bodies Of Law, Jennifer L. Levi

Faculty Scholarship

This is a book review of Andrew Sharpe's "Transgender Jurisprudence: Dysphoric Bodies of Law." The Author discusses the contribution Sharpe makes to the transgender rights movement as invaluable for two reasons. First, it provides the first in-depth and full-length comprehensive treatment of the topic of transgender jurisprudence, and emerges as the foundational work by which others will be measured. Second, it exposes the homophobia underlying many of the key decisions, particularly in the area of marriage and family law, and provides an important link between the lesbian, gay, bisexual, and transgender movements which should not be ignored by activists from …

Book Review Of Prejudicial Appearances: The Logic Of American Antidiscrimination Law, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel

Faculty Scholarship

It is a pleasure to address such well-informed, insightful and well-intentioned responses to our Article. Intellectual predispositions and differing assessments of the prospects of reform aside, it is striking that so many participants have firsthand experience of the new model school, the new politics in all their mystery, and even non-court-centric judicial review. It is clear that something is afoot, and not just in academic circles, when observers as different as Diane Ravitch, the critic of Deweyan latitudinarianism, and Gordon Whitman, the community organizer, are both surprised to discover that standardized testing can go hand in hand with individualized education …

From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt

Faculty Scholarship

Criminal law in the United States experienced radical change during the course of the twentieth century. The dawn of the century ushered in an era of individualization of punishment. Drawing on the new science of positive criminology, legal scholars called for diagnosis of the causes of delinquency and for imposition of individualized courses of remedial treatment specifically adapted to these diagnoses. States gradually developed indeterminate sentencing schemes that gave corrections administrators and parole boards wide discretion over treatment and release decisions, and by 1970 every state in the country and the federal government had adopted a system of indeterminate sentencing. …

On Discipline And Canon, Katherine M. Franke

Faculty Scholarship

While the title of the panel I participated in was "Why Do We Eat Our Young?", I think I prefer: "On Discipline and Canon," or to rework the title of the panel in the program, "Why Do We Eat Our Girlfriends?"

In my short remarks, I would like to raise a set not of answers, but of questions that over the last year or so a few of us have been discussing outside of our published work. These questions seem apt both for this panel and for this conference. Last November a group of really wonderful women at the University …

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …

A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel

Faculty Scholarship

The American public school system is in the midst of a vast and promising reform. The core architectural principle of the emergent system is the grant by higher-level authorities – federal government, states, and school districts – to lower level ones of autonomy to pursue the broad goal of improving education. In return, the local entities – schools, districts, and states – provide the higher ones with detailed information about their goals, how they intend to pursue them, and how their performance measures against their expectations. The core substantive commitment of the emergent system is the provision to all students, …

The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel

Faculty Scholarship

Despite many deficiencies, the No Child Left Behind Act ("NCLB" or "Act") extends to the federal level and diffuses to the states an innovative system of publicly monitored decentralization of school governance known as the "New Accountability." This Article argues that, given background changes in the understanding of effective classroom teaching, accountability systems of the type imposed by the NCLB can enable willing school districts to build the capacity for school-level reform upon which the ultimate improvement of public schooling depends. It claims further that activists can accelerate the reforms and ensure respect for the requirements of racial and economic …

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

The Colorblind Lottery, Pauline Kim

Scholarship@WashULaw

Although the Supreme Court upheld Michigan Law School's admissions policies in Grutter, the multiple opinions in that case revealed the deep divisions that remain over the legitimacy of race-conscious policies and the meaning of equal protection. At the heart of this division lies disagreement over the concept of colorblindness. For Justices Scalia and Thomas, as well as the advocacy groups that backed the plaintiffs in Grutter and Gratz, colorblindness is an absolute imperative, prohibiting race-conscious decision-making in all but the most dire situations. This insistence on formal colorblindness has lead to the conclusion in several recent court cases that race-conscious …