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Eliding In New York, Monte Neil Stewart Jul 2006

Eliding In New York, Monte Neil Stewart

Duke Journal of Constitutional Law & Public Policy Sidebar

In January 2006, this Journal published an article that set forth the social institutional argument for man/woman marriage, demonstrated how that argument is a sufficient response to all constitutional attacks leveled at the laws sustaining that social institution, and detailed how the courts mandating genderless marriage (and the dissenting judges favoring that result) had elided the argument (“the Judicial Elision article”). Since the Judicial Elision article’s early December 2005 cut-off date, two more instances of judicial elision of social institutional realities have cropped up in New York. Both are dissenting opinions, one in the Appellate Division and one ...


Exxon Mobil Corp. V. Allapattah Services Inc., Blayre Britton Apr 2006

Exxon Mobil Corp. V. Allapattah Services Inc., Blayre Britton

Duke Journal of Constitutional Law & Public Policy Sidebar

In diversity cases, only one plaintiff or class member must satisfy the amount in controversy requirement.


Mayle V. Felix, Aleksandra Kopec Mar 2006

Mayle V. Felix, Aleksandra Kopec

Duke Journal of Constitutional Law & Public Policy Sidebar

Following his murder conviction, Felix filed a pro se habeas petition alleging Sixth Amendment violations at trial The petition was filed within the one-year Antiterrorism and Effective Death Penalty Act deadline. He was later appointed counsel, who filed an amended petition alleging Fifth Amendment violations; but that petition was filed five months after the AEDPA deadline had passed. The Court held that the amended petition was not saved by the Relation Back doctrine because it did not share with the earlier claims a common "core of operative facts."


Merck Kgaa V. Integra Lifesciences I, Ltd.: Greater Research Protection For Drug Manufacturers, Samuel Rubin Mar 2006

Merck Kgaa V. Integra Lifesciences I, Ltd.: Greater Research Protection For Drug Manufacturers, Samuel Rubin

Duke Journal of Constitutional Law & Public Policy Sidebar

Merck sought protection under a statutory exemption from claims of patent infringement brought by Integra Lifesciences. The Court held unanimously that the safe harbor contained in 35 U.S.C. § 271(e)(1) protected the use of patented inventions used in preclinical research where the results were not submitted to the FDA. The Court's interpretation of the safe harbor provision broadened protection for those engaged in drug research at a substantial cost to patent-holders.


Smith V. City Of Jackson: Age Discrimination Act Authorizes Disparate Impact Claims – But Scope Is Narrow, William B. Holladay Mar 2006

Smith V. City Of Jackson: Age Discrimination Act Authorizes Disparate Impact Claims – But Scope Is Narrow, William B. Holladay

Duke Journal of Constitutional Law & Public Policy Sidebar

When Jackson, Mississippi revised its salary structure for police and public safety officers, it gave proportionately higher increases to officers with less than five years of seniority, who were overwhelmingly under forty years old. Thirty officers over the age of forty sued the city for age discrimination, alleging disparate impact. In a plurality opinion, the Court held that the Age Discrimination in Employment Act authorized claims of disparate impact. When it accepted the employer’s justification for the raise and dismissed the plaintiffs’ claim, however, the Court signaled that in the future, the scope of disparate impact claims would be ...


Universal Rights And Wrongs, Michael E. Tigar Jan 2006

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.


The Assumptions Of Federalism, Erwin Chemerinsky Jan 2006

The Assumptions Of Federalism, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Kelo’S Moral Failure, Laura S. Underkuffler Jan 2006

Kelo’S Moral Failure, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.


Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder Jan 2006

Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.


The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky Jan 2006

The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky

Faculty Scholarship

The Bush administration has made unprecedented claims of unchecked executive power. The Constitution reflects a simple model that two branches of government should have to be involved in virtually all major government actions. The Bush administration, however, has claimed the ability to detain individuals, to engage in electronic eavesdropping, and to authorize torture even in violation of federal statutes. The solution must be for courts to reject these broad claims of presidential authority.


Grand Visions In An Age Of Conflict, H. Jefferson Powell Jan 2006

Grand Visions In An Age Of Conflict, H. Jefferson Powell

Faculty Scholarship

Last spring Professor Laurence H. Tribe commented that federal constitutional law is in a state of intellectual disarray: "[I]n area after area, we find ourselves at a fork in the road--a point at which it's fair to say things could go in any. of several directions" and we have "little common ground from which to build agreement." No doubt fortuitously, two of our most formidable constitutional scholars, Akhil R. Amar and Jed Rubenfeld, have recently published systematic studies that implicitly challenge Tribe's conclusion that "ours [is] a peculiarly bad time to be going out on a limb ...


Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner Jan 2006

Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner

Faculty Scholarship

A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing statements ...


Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley Jan 2006

Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley Jan 2006

Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler Jan 2006

Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher Jan 2006

Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher

Faculty Scholarship

In the summer of 2004, New Haven Mayor John DeStefano, Jr. announced plans to demolish the all-but-derelict New Haven Coliseum and replace it with a publicly financed redevelopment that would include a 300-room hotel. Critics of the plan immediately objected that the hotel-even if it were completed-was a poor public investment, that there was no demand for such a hotel, and that the money could be better spent elsewhere. Some critics pointed to New Haven's own checkered history of major development projects, especially the failed downtown mall and the famously catastrophic Oak Street redevelopment. As of February 2006, the ...


Checks And Balances: Congress And The Federal Court, Paul D. Carrington Jan 2006

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of ...


Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2006

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.


Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz Jan 2006

Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz

Faculty Scholarship

Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus ...


Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher Jan 2006

Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher

Faculty Scholarship

No abstract provided.


The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos Jan 2006

The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos

Faculty Scholarship

The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather ...


The Executive And The Avoidance Canon, H. Jefferson Powell Jan 2006

The Executive And The Avoidance Canon, H. Jefferson Powell

Faculty Scholarship

No abstract provided.


Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler Jan 2006

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Faculty Scholarship

No abstract provided.