Digital Commons Network^™

The Future Of Freedom Of Expression Online, Evelyn Mary Aswad

Duke Law & Technology Review

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their …

Dialing It Back: Why Courts Should Rethink Students’ Privacy And Speech Rights As Cell Phone Communications Erode The ‘Schoolhouse Gate’, Nicholas J. Mcguire

Duke Law & Technology Review

The ubiquity of cell phones in today’s society has forced courts to change or dismiss established, but inapplicable analytical frameworks. Two such frameworks in the school setting are regulations of student speech and of student searches. This Article traces the constitutional jurisprudence of both First Amendment off-campus speech protection and Fourth Amendment search standards as applied to the school setting. It then analyzes how the Supreme Court’s ruling in Riley v. California complicates both areas. Finally, it proposes a pragmatic solution: by recognizing a categorical First Amendment exception for “substantial threats” against the school community, courts could accommodate students’ constitutional …

Racing On Two Different Tracks: Using Substantive Due Process To Challenge Tracking In Schools, Katarina Wong

Duke Journal of Constitutional Law & Public Policy Sidebar

Tracking is a widespread educational practice where secondary schools divide students into different classes or “tracks” based on their previous achievements and perceived abilities. Tracking produces different levels of classes, from low ability to high ability, based on the theory that students learn better when grouped with others at their own level. However, tracking often segregates students of color and low socioeconomic status into low-tracked classes and these students do not receive the same educational opportunities as white and/or wealthier students. Students and parents have historically challenged tracking structures in their schools using an Equal Protection Clause framework. However, this …

Compelled Speech, Expressive Conduct, And Wedding Cakes: A Commentary On Masterpiece Cakeshop V. Colorado Civil Rights Commission, Andrew Jensen

Duke Journal of Constitutional Law & Public Policy Sidebar

Masterpiece Cakeshop v. Colorado Civil Rights Commission is the most important same-sex rights case since Obergefell v. Hodges and will determine if businesses and individuals have a First Amendment right to refuse serving gay weddings against their conscience. In this case, Jack Phillips, owner of Masterpiece Cakeshop, refused to create a custom cake for Charlie Craig and David Mullins to celebrate their wedding because it was against his Christian beliefs. The Supreme Court will decide whether the First Amendment gave Phillips this right of refusal or whether Colorado’s anti-discrimination laws will compel him to serve same-sex weddings. This commentary argues …

Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit

Duke Journal of Constitutional Law & Public Policy Sidebar

NCAA v. Christie will determine whether a federal statute that prevents a state legislature from repealing a previously enacted state law violates the anti-commandeering doctrine. In 2014, New Jersey passed a state law repealing state prohibitions against sports wagering in Atlantic City. Five sports leagues sued New Jersey in federal court. The leagues asserted that the new state law violated the Professional and Amateur Sports Protection Act (“PASPA”), a federal law. New Jersey claimed PASPA violated the anti-commandeering doctrine and was accordingly unconstitutional. The Third Circuit Court of Appeals held that PASPA does not violate the anti-commandeering doctrine because it …

Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether the Ohio’s Supplemental Process for maintaining its voter rolls violates the requirements of the National Voter Registration Act (“NVRA”) and the Help America Vote Act (“HAVA”). The Court’s opinion will shape the landscape of voting rights, as many states are struggling to meet the dual mandates of election sanctity and increased voter access. This commentary argues that the Supreme Court can give states a guideline for what is an acceptable process that complies with the conflicting federal policies in the NVRA and HAVA. The Court should …

Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher

Duke Journal of Constitutional Law & Public Policy Sidebar

Mr. Patchak was a concerned citizen with standing to bring a suit against the federal government. A previous Supreme Court decision, Carcieri v. Salazar, made it clear that Mr. Patchak would win his case. Congress, however, did not want him to do so. Congress passed, and President Obama signed, the Gun Lake Act, which effectively ordered Mr. Patchak’s suit to be dismissed. Mr. Patchak’s suit was subsequently dismissed, and he appealed on the grounds that the Gun Lake Act violated separation of powers principles.

Carpenter V. United States: How Many Cell Phone Location Points Constitute A Search Under The Fourth Amendment?, Douglas Harris

Duke Journal of Constitutional Law & Public Policy Sidebar

In Carpenter v. United States, the Supreme Court will decide whether the government’s acquisition of a suspect’s cell site location information (“CSLI”) during an ongoing criminal investigation is a “search” under the Fourth Amendment, and thus requires a showing of probable cause to obtain a warrant. This opinion will have future consequences for Americans and their privacy interests as cell sites continue to be built and CSLI records increasingly contain more private information about cell phone users. This commentary argues that that the necessity of owning and using cell phones renders past tests obsolete. With wavering, subjective expectations of …

Preserving The ‘Jewel Of Their Souls’: How North Carolina’S Common Law Could Save Cyber-Bullying Statutes, Nick Mcguire

Duke Journal of Constitutional Law & Public Policy Sidebar

In State v. Bishop, the North Carolina Supreme Court struck down the state’s cyber-bullying statute on the grounds that it violated the First Amendment right to freedom of speech. Cyber-bullying, bullying that occurs through electronic technology, has become more prevalent in recent years as much of adolescent life shifts to social media and digital communications. Increasing evidence of cyber-bullying’s negative effects on children has prompted numerous state legislatures to take action. Many states have enacted generic policies for school personnel to take reasonable action to combat cyber-bullying during school hours. This note, however, argues for an alternative approach to …

Chance To Change: Jennings V. Rodriguez As A Chance To Bring Due Process To A Broken Detention System, Joe Bianco

Duke Journal of Constitutional Law & Public Policy Sidebar

Jennings v. Rodriguez will determine whether specific classes of detained noncitizens will be entitled to bond hearings before Immigration Judges moving forward. The challenge comes from the Ninth Circuit, which, with the Second Circuit, mandates bond hearings for some detainees automatically after six months. Those Circuits found that after that point, the detention was arbitrary without a showing by the Government of why the noncitizen needed continued detention. The Government seeks to retain the current system, where the noncitizen’s detention release is entirely at the Government’s discretion. This commentary sets out the case and argues that the better route is …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Why Deporting Immigrants For “Crimes Involving Moral Turpitude” Is Now Unconstitutional, Lindsay M. Kornegay, Evan Tsen Lee

Duke Journal of Constitutional Law & Public Policy

In the best of times, immigrants should only be deported according to the rule of law and not by the whim of executive branch officials. Now, it is imperative. Yet the statute authorizing removal of immigrants for “crimes involving moral turpitude” invites officials to base their prosecutorial choices on political or personal views. As a result, defense attorneys advising their clients on the immigration consequences of pleas have no basis for prediction. Although the Supreme Court long ago rejected the argument that the “moral turpitude” clause was void for vagueness, one of the Court’s most recent decisions now makes that …

“Safe Spaces” And The Educational Benefits Of Diversity, Vinay Harpalani

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Loyal Denominatorism And The Fourteenth Amendment: Normative Defense And Implications, Christopher R. Green

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Procedural Checks: How The Constitution (And Congress) Control The Power Of The Three Branches, Todd David Peterson

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …

The United States As An Idea: Constitutional Reflections, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young

Faculty Scholarship

No abstract provided.

Sustaining Collective Self-Governance And Collective Action: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel

Faculty Scholarship

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution …

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Faculty Scholarship

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article …

The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.

Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs

Faculty Scholarship

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity …

The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger

Faculty Scholarship

Economic inequality threatens America’s constitutional democracy. Beyond obvious harms to our nation’s social fabric and people’s lives, soaring economic inequality translates into political inequality and corrodes democratic institutions and values. The coincident, relentless rise of money in politics exacerbates the problem. As elected officials and candidates meet skyrocketing campaign costs by devoting more and more time to political fundraising—and independent expenditures mushroom—Americans lose faith and withdraw from a system widely perceived as beholden to wealthy individuals and corporate interests.

The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and …

Precedent And The Semblance Of Law, Stephen E. Sachs

Faculty Scholarship

Like its author, Randy Kozel's *Settled Versus Right* is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, *lawless* -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So *Settled Versus Right* makes the best of what we've got, reorienting …

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Faculty Scholarship

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.

In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.

State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young

Faculty Scholarship

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll …

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.