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Articles 31 - 60 of 77
Full-Text Articles in Entire DC Network
Cruel And Unequal Punishment, Nita A. Farahany
Cruel And Unequal Punishment, Nita A. Farahany
Faculty Scholarship
This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in …
Hindsight Is 20/20: Revisiting The Reapportionment Cases To Gain Perspective On Partisan Gerrymanders, Douglass Calidas
Hindsight Is 20/20: Revisiting The Reapportionment Cases To Gain Perspective On Partisan Gerrymanders, Douglass Calidas
Duke Law Journal
In the first decade of the twentieth century, political party operatives have manipulated the boundaries of congressional districting maps to an unprecedented extent in the interest of gaining partisan advantage. The judiciary, led by a fractured Supreme Court, has refused to intervene, holding claims of unconstitutional partisan gerrymandering nonjusticiable for want of a workable judicial standard. The epidemic of partisan gerrymandering has harmed the electoral process in ways that mirror the harm caused by legislative malapportionment prior to the 1960s. In that decade, the Court assertively invoked the Equal Protection Clause to effect reapportionment and bring congressional districting maps in …
Rendering Turner Toothless: The Supreme Court’S Decision In Beard V. Banks, Jennifer N. Wimsatt
Rendering Turner Toothless: The Supreme Court’S Decision In Beard V. Banks, Jennifer N. Wimsatt
Duke Law Journal
The Supreme Court has long recognized that prisoners' constitutional rights must be balanced against the need for deference to the decisions of prison administrators when prisoners' rights are restricted incident to their incarceration. The Court, however, has never explicitly recognized a theory of proper incarceration, yet it has implicitly adopted such a theory through its decisions regarding the constitutionally permitted level of restriction on particular prisoners' rights. This Note argues that the Court's prisoners' rights jurisprudence evinces a particular definition of proper incarceration and then reads the multiple opinions in Beard v. Banks consistently with that theory.
The Costs Of A “Free” Education: The Impact Of Schaffer V. Weast And Arlington V. Murphy On Litigation Under The Idea, Kelly D. Thomason
The Costs Of A “Free” Education: The Impact Of Schaffer V. Weast And Arlington V. Murphy On Litigation Under The Idea, Kelly D. Thomason
Duke Law Journal
The Individuals with Disabilities Education Act guarantees to children with disabilities the right to receive a "free appropriate public education." This Note argues that the Supreme Court decisions Schaffer v. Weast and Arlington v. Murphy, cases dealing with procedural aspects of the Act, undermine a prior trend in IDEA litigation-a trend that had increased the substantive and procedural rights of children with disabilities. Considered together, the Schaffer and Arlington decisions ignore the realities of the litigation process and impose significant burdens on parents attempting to ensure that their children receive the free appropriate education to which they are entitled.
Forgotten Racial Equality: Implicit Bias, Decisionmaking, And Misremembering, Justin D. Levinson
Forgotten Racial Equality: Implicit Bias, Decisionmaking, And Misremembering, Justin D. Levinson
Duke Law Journal
In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this phenomenon perpetuates racial bias in case outcomes. To test the hypothesis that judges and jurors misremember case facts in racially biased ways, I conducted an empirical study in which participants were asked to recall facts of stories they had read only minutes earlier. Results of the …
“But Some Of [Them] Are Brave”: Identity Performance, The Military, And The Dangers Of An Integration Success Story, Mario L. Barnes
“But Some Of [Them] Are Brave”: Identity Performance, The Military, And The Dangers Of An Integration Success Story, Mario L. Barnes
Duke Journal of Gender Law & Policy
By dislodging the story and acknowledging the effects of unconscious bias, the Armed Forces will be better able to address the ways in which some use identity-race in particular-as a tool to stigmatize, dishonor, and disfavor group members based on their perceived characteristics.11 As it currently stands, the operation of unconscious biases interacts with Armed Forces' institutional policy choices-such as a commitment to formal equality achieved through race- and gender-neutral regulations-and organizational social norms to negatively shape the work "performance"12 of women and minority service members.
Constructing The Co-Ed Military, Elaine Donnelly
Constructing The Co-Ed Military, Elaine Donnelly
Duke Journal of Gender Law & Policy
During a pre-launch test of the Apollo One spacecraft,1 an electrical spark ignited the pure-oxygen atmosphere inside the cramped capsule, killing astronauts Virgil Grissom, Edward White, and Roger Chafee.2 Critics demanded to know why the mechanical and electrical engineers of the National Aeronautic and Space Administration (NASA) failed to recognize the inherent dangers of operating in a pure-oxygen environment. To ensure that the intent of Congress is carried out with regard to homosexuals in the military, the Secretary of Defense should: * Improve understanding and enforcement of the law by eliminating the Clinton Administration's enforcement regulations, known as "Don't Ask, …
Grappling With “Solicitation”: The Need For Statutory Reform In North Carolina After Lawrence V. Texas, Christopher R. Murray
Grappling With “Solicitation”: The Need For Statutory Reform In North Carolina After Lawrence V. Texas, Christopher R. Murray
Duke Journal of Gender Law & Policy
Teresa Pope was charged with solicitation of the crime against nature for offering oral sex for money to two undercover police officers.5 Solicitation is an inchoate offense-like attempt or conspiracy-that relies on the criminality of the underlying conduct. 6 Although oral sex by itself cannot be criminalized post-Lawrence, the North Carolina Court of Appeals held in State v. Pope that the charge of solicitation of the crime against nature survived Lawrence by virtue of an exception in that decision allowing criminalization of prostitution. "10 In State v. Richardson, the Supreme Court of North Carolina construed this statute to apply only …
Broad Exemptions In Animal-Cruelty Statutes Unconstitutionally Deny Equal Protection Of The Law, William A. Reppy Jr.
Broad Exemptions In Animal-Cruelty Statutes Unconstitutionally Deny Equal Protection Of The Law, William A. Reppy Jr.
Law and Contemporary Problems
This article considers the history, interpretation, and constitutionality of statutory exemptions that preclude prosecution either for misdemeanor or felony violation of North Carolina's criminal animal-cruelty statute, section 14-3601 of the General Statutes, in nine situations.
Race-Conscious Student Assignment Plans: Balkanization, Integration, And Individualized Consideration, Neil S. Siegel
Race-Conscious Student Assignment Plans: Balkanization, Integration, And Individualized Consideration, Neil S. Siegel
Duke Law Journal
In deciding Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court of the United States will likely confront a critical issue to emerge from the lower court opinions on voluntary integration plans: whether school districts that use race as a factor in student assignment must comply with a legal requirement of individualized consideration. The Court has imposed such a requirement in other contexts, but it has not clearly explained what the concept of individualized consideration means and why particular forms of it matter.
An Empirical Examination Of The Equal Protection Challenge To Contingency Fee Restrictions In Medical Malpractice Reform Statutes, Casey L. Dwyer
An Empirical Examination Of The Equal Protection Challenge To Contingency Fee Restrictions In Medical Malpractice Reform Statutes, Casey L. Dwyer
Duke Law Journal
No abstract provided.
Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson
Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson
Duke Law Journal
No abstract provided.
A National Model For Reconciling Equal Protection For Same-Sex Couples With State Marriage Amendments: Alaska Civil Liberties Union Ex Rel. Carter V. Alaska, Eric J. Lobsinger
A National Model For Reconciling Equal Protection For Same-Sex Couples With State Marriage Amendments: Alaska Civil Liberties Union Ex Rel. Carter V. Alaska, Eric J. Lobsinger
Alaska Law Review
No abstract provided.
Title Vii Disparate Impact Suits Against State Governments After Hibbs And Lane, Claude Platton
Title Vii Disparate Impact Suits Against State Governments After Hibbs And Lane, Claude Platton
Duke Law Journal
No abstract provided.
Proportionality As A Principle Of Limited Government, Alice Ristroph
Proportionality As A Principle Of Limited Government, Alice Ristroph
Duke Law Journal
This Article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory-an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state's penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in …
What Happens To A Dream Deferred?: Cleansing The Taint Of San Antonio Independent School District V. Rodriguez, Ian Millhiser
What Happens To A Dream Deferred?: Cleansing The Taint Of San Antonio Independent School District V. Rodriguez, Ian Millhiser
Duke Law Journal
No abstract provided.
Korematsu And Beyond: Japanese Americans And The Origins Of Strict Scrutiny, Greg Robinson, Toni Robinson
Korematsu And Beyond: Japanese Americans And The Origins Of Strict Scrutiny, Greg Robinson, Toni Robinson
Law and Contemporary Problems
The authors examine the role that the Japanese American Citizens League played in the development of the "strict scrutiny" doctrine partly responsible for the ruling in Brown v. Board of Education. The plight of Japanese Americans during their WWII internment gave them experience in implementing this doctrine, which they passed on to the NAACP.
Walking While Muslim, Margaret Chon, Donna E. Arzt
Walking While Muslim, Margaret Chon, Donna E. Arzt
Law and Contemporary Problems
The authors examine the linkage between the social justice claims of Japanese Americans during WWII and Muslim Americans in today's post-9/11 era. Muslims are considered a significant component of the war on terror, but it is unclear whether this classification is based upon race or religion.
Equal Citizenship At Ground Level: The Consequences Of Nonstate Action, Kenneth L. Karst
Equal Citizenship At Ground Level: The Consequences Of Nonstate Action, Kenneth L. Karst
Duke Law Journal
No abstract provided.
The Political Question Doctrine: Suggested Criteria, Jesse H. Choper
The Political Question Doctrine: Suggested Criteria, Jesse H. Choper
Duke Law Journal
Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed-textual commitment-is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these-structural issues: federalism and separation of powers-has been advanced and developed …
Polygamy As A Red Herring In The Same-Sex Marriage Debate, Ruth K. Khalsa
Polygamy As A Red Herring In The Same-Sex Marriage Debate, Ruth K. Khalsa
Duke Law Journal
No abstract provided.
Judging The Law Of Politics, Guy-Uriel Charles
Judging The Law Of Politics, Guy-Uriel Charles
Faculty Scholarship
In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, "The Supreme Court and Election Law," against the recent work of a leading structuralist, Professor Richard Pildes' recent Foreword to the Harvard Law Review. I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship …
Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry
Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry
Law and Contemporary Problems
Sherry presents information concerning the labeling of court decisions as being liberal or conservative victories. Because each case can be viewed in different aspects of liberalism and conservatism, it is more appropriate to simply recognize that there are important, non-ideological values at stake on both sides of each case.
Just Do It, Girardeau A. Spann
The Cherokee Removal And The Fourteenth Amendment, Gerard N. Magliocca
The Cherokee Removal And The Fourteenth Amendment, Gerard N. Magliocca
Duke Law Journal
This Article recasts the original understanding of the Fourteenth Amendment by showing how its drafters were influenced by the events that culminated in The Trail of Tears. A fresh review of the primary sources reveals that the removal of the Cherokee Tribe by President Andrew Jackson was a seminal moment that sparked the growth of the abolitionist movement and then shaped its thought for the next three decades on issues ranging from religious freedom to the antidiscrimination principle. When these same leaders wrote the Fourteenth Amendment, they expressly invoked the Cherokee Removal and the Supreme Court's opinion in Worcester v. …
Following The Law, Not The Crowd: The Constitutionality Of Nontraditional High School Athletic Seasons, Courtney E. Schafer
Following The Law, Not The Crowd: The Constitutionality Of Nontraditional High School Athletic Seasons, Courtney E. Schafer
Duke Law Journal
No abstract provided.
Enforcing Bias-Crime Laws Without Bias: Evaluating The Disproportionate-Enforcement Critique, Frederick M. Lawrence
Enforcing Bias-Crime Laws Without Bias: Evaluating The Disproportionate-Enforcement Critique, Frederick M. Lawrence
Law and Contemporary Problems
No abstract provided.
Racial Identity, Electoral Structures, And The First Amendment Right Of Association, Guy-Uriel Charles
Racial Identity, Electoral Structures, And The First Amendment Right Of Association, Guy-Uriel Charles
Faculty Scholarship
No abstract provided.
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin
Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin
Duke Law Journal
This Article discusses the relationship between federal equal protection doctrine and the states' experiment with deregulated education-in particular, charter schools whose student bodies are identifiable on the basis of status. I argue that the states' experiment with deregulated education and the Supreme Court's understanding of the limitations imposed by the federal Equal Protection Clause on status-conscious state action are substantially in conflict, though not inevitably so. Reconciling state policy and federal constitutional law requires, first, that state legislatures draft laws that are consistent with the Court's skepticism of explicitly status-conscious state action, and its ambivalence toward state action that addresses …